Animal Welfare Bill: BRIA

Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill Partial Business and Regulatory Impact Assessment

Title of Proposal

Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill Partial Business and Regulatory Impact Assessment

Purpose and Intended Effect

 Background

The Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill will amend various legislation to;

• Increase penalties for animal cruelty, dog fighting and various wildlife offences that involve harm to wild animals or their habitats,
• Introduce the power to develop Fixed Penalty Notice (FPN) regimes as a valuable additional enforcement tool to improve compliance with animal health and welfare requirements,
• Increase the protection for police dogs and other service animals by implementing “Finn’s Law”; and
• Make it quicker and easier to deal with animals that have been taken into care to protect their welfare; allowing authorities to promptly make the best permanent arrangements for these animals without the need for a court order.

 Objective

The objective of the Bill is to further protect the health and welfare of animals and wildlife in Scotland. The Bill achieves this by amending the Animal Health and Welfare (Scotland) Act 2006, several pieces of wildlife legislation and the Animal Health Act 1981 so as to address concerns regarding current penalties, enforcement powers and to improve the way this legislation operates in practice.

 Rationale for Government intervention - Animal Health & Welfare

The proposed changes to the legislation are in step with the Scottish Government’s vision of a society which treats all with kindness, dignity and compassion, respects the rule of law, and acts in an open and transparent way. This will help to increase the respect and protection given to all of the animals, captive or wild, in Scotland.

The increased penalties will give a clear signal that crimes against animals are taken seriously and will not be tolerated in Scotland and give the courts sufficient powers to deal appropriately with such crimes, leading to our communities being safer places where humans and animals will be able to interact in ways beneficial to both. The increased penalties will also provide Scotland’s law enforcement animals greater protection and assist those whose function is to ensure safe enjoyment of our empowered and safer communities.

The introduction of powers to provide for fixed penalty notice regimes in relation to minor and technical animal health and welfare offences links into a number of National Outcomes and Sustainable Development Goals (SDG), including Sustainable Cities & Communities( SDG 11) and Peace, Justice & Strong Institutions (SDG16), Responsible, Consumption & Production (SDG 12) and Life on Land (SDG 15).

It is expected that Fixed Penalty Notices will promote compliance with legislative requirements which will be beneficial for the overall health and welfare of animals whilst supporting the economic and social wellbeing of people working in the livestock sector through the avoidance of expensive, stressful and restrictive disruptions caused by large scale disease outbreaks.

The improvements being made to permit the early rehoming of at–risk and abused animals will have primary impact in SDG 12 (Responsible, Consumption & Production) and SDG 15 (Life on Land). For example, the life of all of Scotland’s farmed animals and those who rely on them for their livelihood, will be improved by increased livestock welfare. This will help to increase the reputation and profitability of the farming sector and also bring some benefits to Scotland’s wild animals sharing the same landscape; therefore benefitting Scotland’s economy and environment.

Rationale for Government intervention - Wildlife

By increasing the maximum penalties available for wildlife crimes, we would progress the 2018 National Performance Framework Environmental vision of:

“We take a bold approach to enhancing and protecting our natural assets and heritage.”

In doing so we would also contribute to the 2015 ‘Life on land’ UN Sustainable development goal;

“15.5 Take urgent and significant action to reduce the degradation of natural habitats, halt the loss of biodiversity and, by 2020, protect and prevent the extinction of threatened species”

Animal Health & Welfare - Consultations

The proposed amendments to Animal Health & Welfare legislation represent real practical improvements to their enforcement. They are resultant from close working relationships with key stakeholders, including an initial informal stakeholder engagement exercise with enforcement authorities in 2016.

 Within Government

Scottish Government Animal Welfare Division veterinary team, has provided input on the animal welfare impacts of these proposals;

Scottish Government Legal Directorate has provided advice on the legal issues raised in relation to the Bill proposals; and

Justice Directorate, Scottish Government provided advice on issues relating to sentencing and increasing penalties (adjudication);

Justice analysts, Scottish Government have provided details of the offences created under the 2006 Act

Legal Aid Team, Scottish Government has provided advice on the implications for the legal aid fund;

Crown Office & Procurator Fiscal Service (COPFS) have provided advice on the current court and prosecution arrangements; and

Scottish Courts & Tribunal Service (SCTS) have provided advice on the arrangements for organising trials.

Enforcement agencies

The Scottish Government’s animal health and welfare teams have close working relationships with those that enforce the legislation.

Quarterly meetings are held with the Animal Health and Welfare Strategy Group who have been supportive of proposals to introduce fixed penalty notices for lesser animal health offences. The group is formally constituted through the Convention of Scottish Local Authorities. The remit of the group is to consider current and emergency issues in animal health and welfare and how best to address these through multi agency working, improved guidance and amendment to statute if necessary.

The Animal and Plant Health Agency (APHA), the Scottish Government Rural Payments & Inspection Directorate (SGRPID), the Scottish SPCA and local authorities have provided insights into current arrangements, and had an opportunity to respond to the consultations, and take part in a more detailed questionnaire relating to the costs and benefits of these enforcement proposals.

 Business

A wide range of businesses that have previously notified an interest in animal health and welfare were sent the public consultation directly and were encouraged to respond.

We do not intend to specifically interview 6-12 businesses, as a key assumption is that law abiding businesses and individuals will not be affected by the current proposals, and only those committing offences under the legislation, and those enforcing these rules will be directly affected.

 Public Consultations

The Scottish Government public consultation on proposed amendments to the Animal Health and Welfare (Scotland) Act 2006 ran for 12 weeks from 1st February 2019 to 26th April 2019. Overall the consultation received 4,595 responses. Of these 69 were from groups or organisations. An additional 20 responses were received from local authorities and the remaining 4,506 were from members of the public. Full results from the consultation analysis were published in July 2019. An overview of responses and key themes is at Annex A and the full report can be found at:

https://www.gov.scot/publications/animal-health-welfare-scotland-act-2006-analysis-consultation-responses/

The Scottish Government is consulting further on the proposal to give the Scottish Ministers powers to issue fixed penalty notices in relation to less serious animal health offences and will also invite initial comments on other aspects of the Animal Health Act 1981. It is anticipated that the responses to these questions will inform a wider review of the Animal Health Act at a later date.

The public consultation on the proposed amendment to the Animal Health Act 1981 is ongoing and can be found at:

https://consult.gov.scot/animal-welfare/animal-health-act-1981

Once concluded, the responses from the consultation will be analysed and a report of the findings published.

Wildlife - Consultations

In his review of wildlife penalties in 2015, Professor Poustie conducted a targeted stakeholder consultation as part of the wildlife crime penalties review group. 68 responses were received, 20 from governmental and non-governmental organisations and 48 from individuals. Respondents identified themselves variously as being based in Scotland, England, Wales, Great Britain, the UK and the Republic of Ireland. An overview of responses to questions regarding wildlife penalties is provided at Annex B; the full report can be found at:

https://www.gov.scot/publications/wildlife-crime-penalties-review-group-report/

 Within Government

Justice Directorate, Scottish Government assisted on issues relating to sentencing and increasing penalties (adjudication);

Legal Aid Team, Scottish Government has assisted regarding the implications for the legal aid fund;

COPFS have provided information about the current court and prosecution arrangements;

Stakeholder engagement

In addition to Police Scotland, the Scottish SPCA is the only other agency to report wildlife crimes to the COPFS. In August 2019, the Wildlife Management team asked key stakeholders who would be affected by the proposals if they would like to meet to discuss them. Several stakeholders accepted this offer and meetings were held with Police Scotland, the COPFS, the Scottish SPCA and the Royal Society for the Protection of Birds.

All stakeholders were in favour of increasing the maximum available penalties for wildlife crimes. The COPFS and Police Scotland welcomed the proposals and agreed that the maximum penalties for the most serious wildlife crimes should be raised. COPFS noted that the changes to legislation would be very meaningful for the most severe cases of wildlife cruelty.

Police Scotland were particularly in favour of increasing the time limit allowed for prosecution of these crimes, citing the difficulties encountered when investigating complicated offences.

 Business

We do not intend to interview 6-12 businesses, as a key assumption is that law abiding businesses and individuals will not be affected by the current proposals; and only those committing offences under the legislation to be amended, and those enforcing these rules will be directly affected.

The provision of vicarious liability for certain offences allows those who have management responsibility to be held responsible for crimes against wild birds committed by their employees or agents. The increase in maximum penalties, including fines, for those underlying crimes will only affect businesses undertaking criminal activity. These changes will only apply to existing offences and the standard of proof for those is not changing.

 Public Consultation

The Scottish Government public consultation on increasing the maximum penalties for wildlife crimes ran for 4 weeks from 19th July 2019 to 16th August 2019.

https://consult.gov.scot/wildlife-management-and-protected-areas/wildlife-crime-penalties/

Overall the consultation received 557 responses. Of these, 33 were from groups or organisations and the remaining 524 were from members of the public. Full results from the consultation analysis is due to be published later in 2019; a preliminary overview of responses and key themes is provided at Annex C.

Options

Option 1:

Do nothing, and retain the existing provisions in the 2006 Act, the 1981 Act and wildlife legislation listed above.

Option 2:

Adopt the provisions of the Bill.

Sectors and groups affected

The Bill will impact on those that breach animal health and welfare requirements or wildlife legislation and the enforcers of the legislation, including the following groups / organisations;

• Police Scotland;
• Crown Office and Procurator Fiscal Service (COPFS);
• Scottish Courts and Tribunals Service (SCTS);
• Scottish Legal Aid Board (slab);
• Scottish Prison Service (SPS);
• Scottish Government Rural Payments & Inspections Division;
• Local authorities;
• Scottish Society for the Prevention of Cruelty to Animals (Scottish SPCA); and
• Animal & Plant Health Agency (APHA) enforcement & veterinary staff.

Benefits

Option 1

There are no additional benefits to be gained by retaining existing provisions.

Option 2

All of the changes proposed in the Bill will benefit animal welfare and wildlife protection by streamlining the processes for enforcement authorities, introducing more proportionate penalties and improving compliance. Financial aspects are covered in detail in the Financial Memorandum accompanying the Bill; wider benefits are outlined here.

Increasing Maximum Penalties and increasing protection for service animals

Increasing the maximum available financial & custodial penalties for the worst cases, will provide the following benefits;

• Send a clear message that animal cruelty will not be tolerated and respond to widespread public concern regarding the protection of all animals in Scotland
• Provide flexibility for the courts to issue appropriate sentences for the thankfully rare but abhorrent cruelty cases, including badger baiting, or the targeting of wild animals of threatened conservation status where the impact of these crimes can be significant to the entire species; and
• Remove the six month time limit to prosecute certain animal welfare and wildlife offences; allowing enforcement authorities additional time to conduct investigations (including time to process forensic evidence and gather evidence)to ensure appropriate justice is administered.
• Removal of the requirement for courts to have regard to arguments that attacks on service animals were undertaken in self-defence or for the protection of others or property will make it much easier for true justice to be served in relation to attacks on animals helping to keep our communities safe.

Introducing Fixed Penalty Notices (FPNs) for animal health and welfare

The Bill confers the power on the Scottish Ministers to introduce FPN regimes to tackle a range of animal health and welfare issues via secondary subordinate legislation (at a later date), and therefore the benefits for a specific FPN regime will be set out in the supporting documentation for any subsequent Scottish Statutory Instruments (SSIs) which will be scrutinised by the appropriate parliamentary committee in detail at that time. However introducing a regime of FPNs may provide the following benefits;

• Improve animal health and welfare standards and encourage compliance, improving enforcement;
• Allow minor and technical offences to be dealt with quickly and proportionately;
• Reduce the likelihood of re-offending, whilst providing a timely and proportionate deterrent when prosecution in court and any resulting criminal record may be excessive;
• Speed up the process of dealing with offences; as persons issued with a fixed penalty notice would not have to wait to appear in court;
• Give more flexibility to enforcing authorities by providing them with an additional enforcement option as an alternative to issuing guidance, warning letters, care notices or prosecution in the criminal courts; and
• Potentially generate some income. The level of penalty and the recipient of any fines will be set out in regulations for each specific enforcement regime. The amount of income will depend on the level the fine and the numbers of breaches identified and dealt with.

New powers over animals that have been taken into care for welfare reasons

The Bill inserts new provisions into the Act which confer powers on authorised persons in relation to animals that have been taken into care for welfare reasons. These new powers include the power to transfer ownership of such animals using a new process specified in the Bill. This process will enable animals to be rehomed after a three week period and crucially removes the need for the authorities to obtain a court order. This innovative amendment to the 2006 Act will provide the following benefits;

• Considerable benefits to animal welfare, as animals will generally be rehomed in weeks as opposed to months, or sometimes years;
• The significantly shorter and more consistent timescale will have multiple benefits, including significant savings in staff time and resource, with no need for multiple visits, for example;
• Local Authorities will be better able to budget for earlier intervention action, in the knowledge that the whole process should be resolved quickly and at less expense;
• Reducing pressure on the court system; the three week process will not involve the courts at all (unless there is an appeal) therefore reducing court costs and avoiding the potential need for evidence relevant to criminal prosecutions to be disclosed in court prior to trial;
• Benefit enforcement and inspection agencies reputationally, as enforcement is expected to improve, with the powers in the 2006 act being used as intended to alleviate immediate animal welfare issues;
• Benefit the farming industry, and improve general compliance by dealing with the worst offences expediently;
• Potential benefit to a greater number of animals as temporary accommodation becomes available; reducing the pressure on the capacity of these facilities;
• Reducing the financial and human costs of current ad hoc, temporary and often “open ended” arrangements, providing swift and suitable alternative arrangements for animals.

Costs

Option 1

There would be no additional costs from retaining existing provisions.

Option 2

The estimated financial costs arising from the provisions in the Bill are outlined in detail in the Financial Memorandum accompanying the Bill. Wider impacts are addressed in this document. There will be general costs to the Scottish Government of introducing and drafting the Bill, and drafting the associated guidance. There will also be general introductory costs for many of the organisations involved in relation to staff training and procedural changes.

Increasing Maximum Penalties and increasing protection for service animals

• Availability of solemn procedure may in some cases result in increased costs of prosecution, although it is likely that the significant majority of animal welfare and wildlife cases will continue to be tried under summary procedure;
• Longer sentences for the small proportion of cases anticipated to merit them will have costs for the Scottish Prison Service (SPS);
• Although detection rates and enforcement methods will not change, and therefore it is assumed the number of cases going forward should remain largely unchanged; there may be a small increase in the number of cases reaching the court system, given the removal of the time bar.
• Potential increased penalties for the small number of attacks on service animals, and any cases that may come forward due to the removal of the six month time bar.

Introducing Fixed Penalty Notices

The Bill confers a power on the Scottish Ministers to create FPN regimes via secondary legislation, and therefore the costs will be set out in the supporting documentation for any subsequent SSIs in detail. Any new FPN system will have some establishment costs for each local authority, including;

• training & guidance for new procedures, and any changes to processes
• staff costs and resources involved in issuing the FPNs; a greater number of FPNs may be issued compared to referrals to the courts, due to the ease of a new FPN process.

However all these costs and the level of the fixed penalties will be determined by the enforcement regime and the appropriate regulations. Therefore it is anticipated that the fines will cover much of the associated costs to implement the regime, potentially providing an additional income stream. This will depend on the level of fine set and the recipient specified in the SSI, along with the number of breaches identified and dealt with using a FPN.

New powers over animals that have been taken into care for welfare reasons

The new powers conferred on authorised persons will avoid the need for such persons to commence court proceedings in order to transfer ownership of, destroy or administer treatments to animals that have been taken into care for welfare reasons. There will be costs associated with the procedural steps necessary to have recourse to the powers (such as those incurred in relation to serving notices that must be served before exercise of the powers) but these are expected to be less than the cost that would be incurred in commencing proceedings.

Authorised persons will incur costs in relation to court proceedings where there is an appeal against the decision taken in relation to the animal. However, in comparison to needing to initiate court proceedings for every single application for a disposal order under section 34 under current arrangements, it is not expected that there will be many appeals. ;The new appeal process will requires the previous keeper to initiate proceedings. For an appeal against a decision notice to be successful it must have been based on an error of fact, wrong in law or unreasonable, and an appeal against a compensation amount would require an alternative valuation to be provided., Therefore it is considered that the costs of any future appeals are unlikely to be any greater than the costs of court proceedings under the existing procedures where the owner or other interested person opposes the decision taken in relation to the animal.

The new statutory appeal process could in theory give rise to additional costs. The previous owner would be offered two opportunities to appeal; they can appeal against the decision on what to do with their animals, and they can (separately) appeal the proposed compensation amount.

The organisations involved in the enforcement of the Bill may need to make some minor arrangements for staff training in order to familiarise all with the Bill provisions. However, given the Bill is amending existing legislation, is not creating any new offences, and for the most part is introducing and developing enforcement tools similar to those introduced at minimal cost under other legislation; it is expected that these introductory costs will be minimal.

The new and innovative approach will mean that authorised persons implementing the new power will, have to pay the previous keeper compensation for the agreed value of the animals. The initial valuation is likely to be met by the subsequent sale of the animals in most cases. However if (for any reason) there is a short fall, this figure will be paid by the enforcement organisation (e.g. Scottish SPCA and local authorities).

It is considered that all these costs will be offset by the savings resulting from the changes in procedure, and in particular the staff time and resources involved in accommodating animals for long periods.

Scottish Firms Impact Test

The intention is not to interview individual businesses, as the proposed changes will not adversely affect businesses that respect animal and wild animal welfare and the associated legislation.

Competition Assessment

There are no market effects considered to result from the proposed Bill. Therefore there is considered to be no competition concern to suppliers and consumers; including those providing and using public services.

Consumer Assessment

These proposals are not thought to have an impact on consumers as the amendment to the existing law will only impact on those committing these existing offences and those enforcing the rules.

Test run of business forms

No new business forms are proposed, although new legal notices will be required in relation to the new powers in relation to animals taken into possession for welfare reasons.

Digital Impact Test

There are no digital impacts considered to result from these proposals, as those who have committed the offences will either be served with a legal notice or a fixed penalty notice.

It may be that the local authorities have a variety of methods of payment for fixed penalty notices (e.g. Telephone hotline, online facility, drop in) however these arrangements will evolve over time, and are the responsibility of each authority and are out with the scope of this assessment.

Legal Aid Impact Test

The proposed changes to the legislation would have an impact on legal aid and these are addressed in broad terms in the table 1 below.

Table 1: Impacts of Bill on Scottish Legal Aid Board (SLAB)

Increasing the maximum available penalties & improving protection for service animals	Twelve months is the maximum sentence in summary cases. Where cases are marked for solemn procedure in anticipation of greater sentences, this could raise the average case costs for the SLAB from £590 to £1,614, based on the latest average case costs for summary and solemn cases (17/18 Annual report). There is an average of 0.3 cases per year estimated to require solemn procedure, for both welfare and wildlife offences. Therefore the additional cost to the SLAB is estimated to be as ((£1,614 -£590) *0.3)*2 = £614 per annum
Introducing the power to use Fixed Penalty Notices	The introduction of fixed penalties may well reduce the number of summary criminal and Assistance By Way Of Representation (ABWOR) cases (average costs £595 and £458)
Streamlining the rehoming of animals to protect their welfare	There is unlikely to be any increase in demand for legal aid as criminal advice and assistance would appear to be irrelevant as the new process it is a civil procedure.

Enforcement, sanctions and monitoring

The Bill will make enforcement of animal health and welfare and wildlife laws more effective by providing increased maximum penalties for the worst cases and the ability to issue fixed penalty notices for lesser, technical offences. The Bill will also remove the six month time bar in relation to certain offences, meaning that there will no longer be a need to commence prosecutions for those offences within six months of the offence being committed.

The provisions of the Bill are intended to strengthen and simplify the enforcement of the various legislation, however much of the enforcement role of the various organisations will remain unchanged; with only the outcome of any investigation potentially changing (e.g. the issuing of an FPN and/ or increased sentences).

Implementation and delivery plan

The proposed changes are intended to come into force in 2020 on a date to be appointed by the Scottish Ministers in regulations, supported by Scottish Government guidance for enforcement agencies.

Post-implementation review

Due to the close working relationships between the Animal Welfare Team veterinarian staff and key stakeholders across Scotland, the impact of these changes will be closely monitored on an ongoing basis,.

Within the next ten years the Scottish Government’s Animal Welfare Team have committed to a review of these proposals.

Under the Wildlife and Countryside Act 1981, the Scottish Government is required to produce an annual report on offences relating to wildlife, including information on the incidence and prosecution of such offences during the year to which the report relates.

The Partnership for Action Against Wildlife Crime represents a wide range of bodies concerned with the prevention and tackling of crimes against wildlife. It includes the Scottish government, Police Scotland, prosecutors as well as non-government organisations representing a wide range of conservation and land management interests. It has a number of working groups which meet on a regular basis to take forward specific areas of work related to tackling wildlife crime and provides a forum for feedback on Scottish Government Policies.

Summary and recommendation

We recommend that the Bill (Option 2) is pursued due to the costs and benefits and the wider impacts of the policy set out here, and in the accompanying documents published in support of the Bill.

Table 2: Summary costs and benefits table

	Additional Costs	Benefits
1: Do Nothing
Increasing maximum available penalties	No additional costs	No additional benefits
2: Adopt The Bill
Increasing maximum available Animal Welfare penalties	Potential additional costs of increased sentences for a small number of the worst cases Additional costs as some cases will be tried under solemn procedure. Maximum additional cost estimated at £114,000 per year	Send a clear message that animal cruelty will not be tolerated, respond to widespread public concern and offer further protection for all animals in Scotland, Provide flexibility for the courts to issue appropriate sentences for the thankfully rare but abhorrent cruelty cases, Remove the six month time limit to prosecute certain animal welfare and wildlife offences; allowing additional time to conduct investigations
Improving protection for service animals (Finn's Law)	Some potential costs associated with potential increased sentences. Any additional costs are incorporated into above “maximum additional cost”	Increase protection for police dogs and other animals in the performance of their indispensable duties, recognising their welfare as sentient beings as well as their legal status as police property; and Make it easier to prosecute those who cause unnecessary suffering to these service animals.
Introducing the power to introduce Fixed Penalty Notices (FPN)	Minimal introductory costs, including training All associated costs to be offset by income from future FPN fines	Giving more flexibility to local authorities by providing them with a proportionate and effective additional enforcement option for less serious offences, Allowing minor and technical offences to be dealt with quickly and effectively, Reducing the likelihood of re-offending, Improving standards and encouraging compliance, Dealing with rule breaches more quickly (persons issued with a fixed penalty notice need not attend court); and Reducing the number of cases being dealt with by the court system, welfare enforcers and animal keepers.
New powers in relation to animals taken into care for welfare reasons	Some costs relating to initial implementation of new procedures; including training. Potentially paying compensation, but should usually be funded by sale of animals Appeal costs. All costs offset by savings in staff time, court time and temporary storage of animals taken into care.	benefitting animal welfare; adopting a new and innovative approach to swiftly resolve the animal welfare issue by making the best arrangements for animals taken into care, Relieve pressure on the court system, Reduce the time and cost involved for all parties, in these often traumatic situations Encourage early intervention by the authorities, with the assurance that any situation should be capable of being resolved more quickly using the new robust system Balance the welfare needs of animals as sentient beings with the property rights of individuals whose actions may have led to animal suffering; offering compensation and an appeal process

Declaration and publication

 Sign-off for Partial BRIAs:

I have read the Business and Regulatory Impact Assessment and I am satisfied that, given the available evidence, it represents a reasonable view of the likely costs, benefits and impact of the leading options. I am satisfied that business impact has been assessed with the support of businesses in Scotland.

Signed:

Date: 26^th September 2019

Mairi Gougeon

Minister for Rural Affairs and the Natural Environment

Scottish Government Contact point: Scottish Government Animal Welfare Team