Dog control laws: consultation

Introduction and background

The key purpose of the 2010 Act is to promote more responsible ownership of dogs and ensure that dogs which are out of control are brought and kept under control in Scotland.

One of the main means by which this policy intent is intended to be achieved was through the creation of new powers for local authorities in respect of ‘out of control’ dogs and their irresponsible owners.

At the heart of the 2010 Act regime is an ability for local authority ‘authorised officers’ to be able to impose dog control notices (DCNs) on any dog owner who allows their dog to be out of control.  The DCN is a civil notice which can contain a number of conditions such as requiring a dog to be on a lead when in public.

Discussed below are a number of steps that may improve the operational effectiveness of the 2010 Act and we would welcome your views on each.

Enforcement powers of authorised officers

Concerns have been expressed about the effectiveness of the powers that local authorities have due, in part, to a lack of appropriate enforcement powers.       

In particular, views have been offered by local authorities that the lack of an enforcement power for an authorised officer can be an impediment in cases where a dog owner refuses to co-operate with an authorised officer.  The 2010 Act, unlike a number of other regulatory regimes which involve officials being empowered to enforce particular rules, does not contain an ‘obstruction’ offence.  

For example, regulatory regimes that require enforcement of rules in areas relating to, for example, minimum standards for the keeping of and processing of poultry and various other food stuffs as well as the labelling of household appliances all contain obstruction offences within them.  However, the 2010 Act does not contain such an offence.

What this means is that when an authorised officer is engaging with a dog owner about their dog potentially being an out of control dog, the authorised officer cannot rely on the existence of an obstruction offence as a means of encouraging co-operation by the dog owner.  In certain situations, this can mean a dog owner could fail to engage with the authorised officer by, say, not giving their name or simply walking away and the authorised officer does not have an enforcement means of encouraging the dog owner to co-operate.

An obstruction offence, a common feature of many regulatory regimes as noted above, is generally not intended to lead to many prosecutions.  Instead, the existence of such an offence acts as an incentive for those who come to the attention of authorised officers to co-operate with them as required.  

1 – Do you think an obstruction offence should be added into the 2010 Act? 
Please give reasons for your answer.

Operation of a national dog control notice database

Section 8 of the 2010 Act^[1] provides a discretionary secondary legislative power for the Scottish Ministers to establish a national database of DCNs.  This power has not as yet been used to establish such a database.

It has been suggested that a national dog control database would assist in the enforcement of the 2010 Act.  A Scottish Dog Control Notice Database would, if in operation, be permitted to hold information relating only to DCNs issued.  No wider information such as investigations carried out could be kept on such a database.  This is as a result of the specific powers available to the Scottish Ministers to establish such a database found in the 2010 Act.  

The Scottish Government already holds information on the number of DCNs issued through regular engagement with individual local authorities.  Under section 4 of the 2010 Act^[2], each local authority has a statutory responsibility to monitor the effectiveness of each DCN they have issued and enforce the conditions of each DCN they have issued.  Each local authority should therefore have their own internal records for each DCN they have issued for monitoring and enforcement purposes.  

However, it can be seen there may well be benefits in having a national database with details added as and when a local authority imposes a DCN.  These benefits may relate to national enforcement of DCNs.  The wording of the 2010 Act is not entirely clear as to whether a DCN imposed in one local authority area can be enforced in other local authority areas.  One interpretation is that the wording used in section 4(3) of the 2010 Act – where requires co-operation between local authorities in respect of all matters relating to control of dogs – is sufficient to infer an intention that enforcement of DCNs outwith the local authority area in which the DCN was imposed should be possible.  As such, a national database could be valuable in assisting enforcement of DCNs issued by a local authority but where, for example, the dog owner moves to a different local authority area.     

Notwithstanding the discussion above about the current operation of the 2010 Act, it may be seen as preferable to make clearer within the 2010 Act that DCNs are able to be enforced across Scotland. So in addition to considering the establishment of a national database, we are asking for views on whether changes to legislation should be considered to clarify that DCNs are capable of being enforced across Scotland.    

2 – Do you think a national dog control notice database should be established?  Please give reasons for your answer.

3 – Do you consider that dog control notices can be capable of being enforced across Scotland under the 2010 Act?  Please give reasons for your answer.

4 – Do you think the 2010 Act should be amended to make clearer that dog control notices can be enforced outwith the local authority area they were imposed in?  Please give reasons for your answer.

5 (for local authorities only) – Does your local authority seek to enforce dog control notices issued in a different local authority area?

Seizing of dogs pending court consideration of a destruction order application by an authorised officer

Section 9 of the 2010 Act provides a power for a local authority authorised officer to make an application to the court for a dog to be subject to a destruction order.  This is in the circumstances when the authorised officer considers a dog is out of control and dangerous to such an extent that serving a DCN (or a further DCN) would be inappropriate.

The process laid out in section 9 empowers the court to be able to decide whether to grant a destruction order in respect of the dog.  However, there are no powers contained within section 9 which permit a dog to be seized pending consideration of the application for a destruction order. There are powers of seizure available within the Dangerous Dogs Act 1991. Section 5(1)(c) allows a constable or an officer of the local authority authorised to carry out the powers of that subsection to seize any dog in a public place which appears to him to be dangerously out of control. However, where a dog is not in a public place, only a constable has the power to seize the
dog (section 5(2) of the 1991 Act). The use of these powers may also provide a further limitation with regard to the circumstances in which a dog can be seized pending the consideration of a destruction order Given these limitations there is a risk that on some occasions the local authority would have no powers of seizure under the 2010 Act

6 – Do you think the 2010 Act should be amended so that it contains clear authority for a dog to be seized by the local authority pending the court’s consideration of a destruction order in relation to the dog?  Please give reasons for your answer.

Sharing of information relating to out of control dogs with those affected by the behaviour of out of control dogs

It is clear that local authorities are heavily reliant on members of the public reporting dogs being out of control.  Given the large number of dogs within communities across Scotland and the relatively small number of dog wardens/authorised officers that work within local authorities, relying on reports from the public is a key aspect to help maximise the effectiveness of the 2010 Act powers.  This is both in relation to the imposition of DCNs initially and then how DCNs can be enforced through, for example, members of the public being aware that a particular dog is subject to certain conditions.

However, views offered since the introduction of the 2010 Act have indicated a concern that the operation of separate data protection legislation restricts the ability of local authorities to share information with members of the public who have made a report of an out of control dog.  In particular, some local authorities approach matters by not sharing any information whatsoever with people who have reported an out of control dog.  Others, such as East Ayrshire Council, consider they are able to share information about the conditions that are attached to a dog control notice they have imposed, but not information relating to the owner of the dog.  

It is for local authorities themselves to determine what information they consider can be shared with reference to wider data protection and any other relevant legislation.  However, it seems less than satisfactory that different approaches are taken in different local authority areas when the overall legislative regime is the same.

7 – Do you think the 2010 Act should be amended to make clearer what powers exist for local authorities to share information about dog control notices?  Please give reasons for your answer. 

Introduction of fixed penalty notices for breaches of dog control notices

The 2010 Act empowers local authority authorised officers to impose DCNs on a dog owner if their dog has been out of control.  The DCN includes within it a number of mandatory conditions such as the requirement to keep their dog under control.  There can also be other conditions added at the discretion of the authorised officer such as the requirement of keeping a dog on a lead when in public.

When conditions of a DCN are breached, this constitutes a criminal offence by virtue of section 5 of the 2010 Act.  In order for a prosecution to be considered, it is for the local authority to prepare a report from the Crown Office and Procurator Fiscal Service with evidence of the breach.  Local authorities have advised this can involve a considerable amount of work.  It has been suggested that it would instead be appropriate to empower local authorities to be able to issue a fixed penalty notice for breaches of a DCN as a first enforcement step rather than requiring reporting to the Crown Office and Procurator Fiscal Service.

Many other regulatory regimes have fixed penalty notice powers included within them to deal with breaches.  For example, dog fouling legislation empowers local authorities to be able to impose a fixed penalty notice on a dog owner while such powers also exist in areas such as parking etc.

8 – Do you think the 2010 Act should be amended to empower local authorities to be able to issue a fixed penalty notice in respect of breaches of a dog control notice?  Please give reasons for your answer. 

Awareness raising of local authority powers in relation to the 2010 Act

Concerns have been expressed about the lack of awareness that exists in relation to the powers of local authorities to be able to hold irresponsible dog owners to account through use of DCN powers.  

Helping raise awareness could have two main benefits.  It could encourage more people to know they can make reports of out of control dogs to local authorities so that action can be considered under the 2010 Act.  And it could act as a deterrent to irresponsible dog owners if they have a greater awareness these powers exist and action can be taken against them.

Exactly how awareness could be raised may differ between local authority areas.  What may be best in one area could be different in another.

While the Scottish Government will progress awareness raising through, for example, social media in the coming months, we would welcome views on awareness raising specific to local areas.  

9 – How best could awareness be raised in local authority areas as to their powers under the 2010 Act.  Please give reasons for your answer.

Updating of statutory guidance for the 2010 Act

Section 12 of the 2010 Act^[3] requires that the Scottish Ministers issue guidance to local authorities as to the operation of local authority functions and authorised officer functions under the 2010 Act.  The 2010 Act was implemented in February 2011 and statutory guidance was issued^[4] ahead of the implementation of the legislation.

This guidance has been kept under review by the Scottish Government but has not been updated since it was issued.  This, in part, reflects that the 2010 Act has not been changed since it came into force in February 2011.  

Given local authorities have nearly a decade of experience of use in their 2010 Act powers, it seems appropriate to seek views on whether the statutory guidance should be updated to reflect experience of use of the legislation and any lessons learnt about, for example, best practice of local authorities in use of their powers.  We would welcome views on this.

In addition, a continuing issue raised about the use of local authorities powers under the 2010 Act has been information sharing.  T Specifically, concerns have been expressed that some people who report to local authorities that a dog may be out of control are unable to be advised as to the outcome of their report e.g. what, if any, action was taken.

This is discussed above in the context of the 2010 Act.  As noted above, the practice of local authorities varies in this regard.  Some consider they are not able to give information out relating to any enforcement action taken in regard to reports received about an out of control dog.  This, in part, has been indicated due to the need to comply with data protection legislation.  

However, one local authority, in evidence to the recent Public Audit and Post-Legislative Scrutiny Committee inquiry into the Control of Dogs (Scotland) Act 2010, indicated that 

‘…we always provide the complainant with a list of the conditions that are attached to a dog control notice. The issue (data protection) arises when you identify the recipient of the notice to the complainant—we would not do that. However, we would say that, in relation to an attack on their dog on such and such a day at such and such a time, a dog control notice had been imposed, and we would set out the conditions. A data protection issue would arise only if we identified the recipient of the notice. We would either redact the notice or simply provide the list of conditions that were attached to the notice that was issued in relation to the attack.’^[5]  

The Scottish Government is minded to add in relation to information sharing to the statutory guidance.  We would welcome views on what wording should be added to the guidance.

10 – Do you think the statutory guidance for the 2010 Act should be updated?  If so, please provide how you think it should be updated.

11 – Do you think that the statutory guidance in relation to information sharing should be added to the statutory guidance?  If so, please provide suggested wording.

Non-statutory Scottish Government developed joint protocol detailing responsibilities of different bodies in dealing with irresponsible dog ownership

In 2016, the Scottish Government developed a protocol following concerns being expressed by enforcement agencies including local authorities that there was confusion regarding the responsibilities relating to out of control dogs.  

In particular, this protocol was a direct response to concerns from some enforcement agencies that there was confusion about the two tests that lie at the heart of relevant legislation.  These two tests are of a dog being ‘out of control’ under the 2010 Act and the test of a dog being ‘dangerously out of control’ under the Dangerous Dogs Act 1991.  There is overlap between these two tests which it is accepted by enforcement agencies can cause confusion.  This is why the Scottish Government developed protocol^[6] covered this area in detail.

It has been suggested that the protocol should be updated.  Local authorities in recent evidence to the Scottish Parliament have indicated confidence in the content of the protocol.

For example, comments have been made^[7] by a number of different local authorities about the protocol as follows: 

‘…a clear protocol that outlines where responsibility lies for taking action under the Dangerous Dogs Act 1991 or the Control of Dogs (Scotland) Act 2010. The protocol states clearly which body is responsible for taking action in certain circumstances.’

‘…it (the protocol) is quite clear about the roles and responsibilities…’

‘… the national protocol stipulates who should carry out the initial investigation… it lays down in fairly good detail who should carry that out.’

The Scottish Government would be happy to consider updating the protocol, but would welcome views on how best this may be done.

A separate but linked consideration may be that it is not the protocol itself that is unclear, but rather the awareness of some members of enforcement agencies as to the content of the protocol.  Again in evidence to the Scottish Parliament, some local authorities suggested a lack of awareness as to the existence of the protocol amongst those dealing with enforcement including constables within Police Scotland.

12 – Do you think the protocol should be updated?  Please provide information as to how you think it should be updated.

Next steps

All of the responses to this consultation will be considered as next steps in each of the areas discussed are assessed.

There will be a further Scottish Government review looking at wider dog control legislation in 2020.  That review will give an opportunity for comments about other aspects of dog control legislation to be offered.