This Memorandum refers to the Dogs (Amendment) Bill as amended at consideration stage in the Northern Ireland Assembly on 18 January 2011 (Bill 20/09)
DOGS (AMENDMENT) BILL
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EXPLANATORY AND FINANCIAL MEMORANDUM
INTRODUCTION
1. This Explanatory and Financial Memorandum has been prepared by the Department of Agriculture and Rural Development in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.
2. The Memorandum needs to be read in conjunction with the Bill. It is not, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause or schedule does not seem to require an explanation or comment, none is given.
BACKGROUND AND POLICY OBJECTIVES
3. The Dogs ( Northern Ireland) Order 1983 (‘the Dogs Order’) provides for the licensing of dogs by district councils and other related enforcement matters. The Dangerous Dogs (Northern Ireland) Order 1991 (‘the Dangerous Dogs Order’) amended the Dogs Order to designate certain types of dogs that it is an offence to breed from, sell or exchange and (except in exceptional circumstances) to possess.
4. District councils are responsible for enforcing the Dogs Order, and have established dog warden services to carry out enforcement duties including dog licensing, the seizure and re-homing or disposal of stray dogs, and the investigation and possible prosecution of offences under the Dogs Order. Income from the dog licence meets a small proportion of the cost of dog warden services.
5. The number of stray dogs impounded by district councils has fallen by more than 40 per cent over the last decade, while at the same time there has been a 39 per cent increase in the numbers of dogs licensed. However, the number of stray dogs per head of population remains much higher than in England, Scotland and Wales. Around 9,000 stray and unwanted dogs were impounded by district councils in 2009 and over 2,300 of those dogs were destroyed.
6. In 2009 there were 741 reported dog attacks on people; this figure has remained at around 700 or more since 2000. Livestock worrying, though at a lower level than was reported in the 1970s and 1980s, still remains high, with almost 300 reports investigated by dog wardens in 2009. So while the Dogs Order has brought improvements in dog control, the problems of dog attacks, straying and unwanted dogs and livestock worrying remain substantial.
7. A review of dog control legislation commissioned by the Minister for Agriculture and Rural Development in 2007 developed a range of policy proposals to address those ongoing problems, including increasing the dog licence fee (with concessions for certain classes of owner) and the level of fixed penalties; introducing compulsory microchipping of dogs; introducing an offence of allowing a dog to attack and injure another person’s dog; and empowering district council dog wardens to impose control conditions on an owner’s dog licence where a breach of the Dogs Order has occurred.
8. Under Article 25A(5) of the Dogs Order dogs of a type normally prohibited by Article 25A may in certain circumstances be exempted from the prohibition. One of the amendments made by the Dogs (Amendment) Act (Northern Ireland) 2001 was that where a person was convicted of an offence under Article 25A (that is breeding or breeding from, selling or exchanging or giving as a gift or having possession of a dog of a prohibited type) the court could make an order directing that the dog in respect of which the offence was committed be destroyed, but also could exercise a discretion not to make such an order if satisfied that the dog would not be a danger to the public. This discretion created the anomalous situation where a dog of a type normally prohibited under Article 25A might escape being made subject to a destruction order but might also continue to be prohibited due to no exemption order subsequently being sought or gained in respect of that dog. The Bill deals with this anomaly by inserting a requirement on the court to make a contingent destruction order, where no destruction order is originally made, to be exercised where the dog is not exempted within 2 months of the date of the order.
CONSULTATION
9. Executive Ministers agreed on 5 November 2009 to consultation on the review’s policy proposals. Consultation opened on 23 November 2009 and closed on 1 February 2010. In order to explain the proposals and to encourage groups and individuals to respond, four consultation workshops took place in Derry, Armagh, Enniskillen and Belfast in January 2010. In addition, during the consultation period, officials met the Dogs Advisory Group, a body made up of district council staff involved in dog control matters and a forum for district councils to discuss issues affecting enforcement of the Dogs Order and related legislation. Officials also hosted separate meetings with Dogs Trust and the Kennel Club, primarily to discuss the practicalities of the microchipping of dogs.
10. One hundred and twenty nine responses to the consultation were received by the Department. The Bill implements the policy proposals with respect to the level of the licence fee, conditions on licences, compulsory microchipping, attacks by dogs on other dogs, levels of fines and penalties and collection of fixed penalties by district councils on which the Department consulted.
OPTIONS CONSIDERED
11. During the Ministers’ review of dog control legislation, four options were considered.
12. Option 1: do nothing. As this would fail to address the ongoing problems identified by the review, this option was not considered viable.
13. Option 2: attempt to address the ongoing problems through non-statutory means. This option would rely on increased enforcement by district councils without additional resources to support dog warden services, and so was not considered viable.
14. Option 3: repeal and replace the Dogs Order. Evidence discussed above suggests that the dog control system established under the Dogs Order has had a significant impact on dog control problems since coming into force. There was no pressure from stakeholders and consultees for a complete overhaul of dog control legislation. This option was not considered appropriate.
15. Option 4: amend the Dogs Order where necessary to implement the key policy proposals developed by the Minister’s review. This was considered to be a proportionate response to the ongoing problems identified by the Review and was the preferred option.
OVERVIEW
16. The Dogs (Amendment) Bill contains 18 clauses and two schedules.
COMMENTARY ON CLAUSES
Dog licences
Clause 1 of the Bill (Exemptions) extends the exemption from the requirement to have a dog licence from guide dogs to all assistance dogs, defined as dogs kept and used by a disabled person wholly or mainly for the purpose of assisting that person to carry out normal day-to-day activities.
Clause 2 of the Bill (Microchipping) introduces a requirement to have a dog implanted with a microchip before any licence or transfer certificate is issued and empowers the Department of Agriculture and Rural Development to make subordinate legislation regulating a system of compulsory microchipping.
Clause 3 of the Bill (Licensing of dangerous dogs) provides that a district council may licence a dog of a type prohibited by the Dogs Order only if that dog has been exempted from the prohibition in Article 25A(3) of the Dogs Order.
Clause 4 of the Bill (Fees) amends the Dogs Order to provide for an increase in the fee payable for a dog licence and for certain concessionary rates. It provides for an increase in the fee payable for a block licence (that is, a licence held in respect of three or more dogs kept for breeding, sporting, show or other specified purposes.) It also empowers the Department, with the consent of the Department of Finance and Personnel, to make subordinate legislation amending the level of fee payable.
Control of dogs
Clause 5 of the Bill (Contingent destruction orders where no prosecution) amends the Dogs Order to provide that, where no person is to be prosecuted for an offence under the Order in respect of a dog seized under Article 25C(1)(a) (that is, a dog of a prohibited type) that dog may be exempted from the prohibition (under strict conditions) provided that a district judge (magistrates court) is satisfied that the dog will not be a danger to the public.
Clause 6 of the Bill (Attacks on livestock and certain other animals) amends the Dogs Order to make it an offence to set a dog on or urge it to attack an animal (other than livestock) owned by another person, and to make it an offence to keep a dog which attacks and injures an animal (other than livestock).
Clause 6 of the Bill also extends the defence contained in the Dogs Order, whereby a person shall not be guilty of an offence if that person's dog attacks another person or livestock trespassing on that person's land, to also cover the situation where an animal owned by another person (other than livestock) is attacked by a person’s dog while trespassing on that person's land.
Clause 7 of the Bill (Attacks on persons) amends the Dogs Order to provide that an attack on a person that results in injury shall be considered an aggravated offence, whether it happens in a public or a private place. It also amends the Dogs Order to increase the maximum penalty for setting a dog on or urging it to attack a person to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale or to both.
Clause 8 of the Bill (Control conditions on dog licences) inserts a new Article 30A into the Dogs Order, which enables district council dog wardens to attach certain control conditions to the licence of a dog where the officer has reason to believe that an offence under the Dogs Order has been committed in respect of that dog.
A new Article 30B provides that the potential control conditions available to a dog warden under this clause are that the dog concerned should be:
- securely fitted with a muzzle when in public;
- kept under control when in public;
- when not under control, be kept securely confined;
- be kept from any specified place;
- if male, be neutered; or
- with the keeper, attend and complete a specified course of training.
A new Article 30C provides for appeal to a Magistrate's Court against the imposition of any control conditions and a new Article 30D for the right of an owner to request a review by the district council of any control condition.
A new Article 30E applies where the keeper of a dog whose licence is subject to control conditions gives or sells the dog to another person, and requires the original keeper not to part with possession of the dog unless he has notified his district council of the intended transfer of ownership of the dog and the name and address of the new keeper. Failure to comply with this requirement will be an offence liable on summary conviction to a fine not exceeding level 4 on the standard scale.
The new Article 30 also requires a district council receiving notice of the transfer of ownership of a dog whose licence is subject to control conditions to inform the new owner of that fact and give that new owner any advice it considers appropriate; and, where the new owner resides in the district of another council, to inform that other council of the transfer of the dog into its district.
A new Article 30F provides that a breach of any control condition shall be an offence punishable by a fine not exceeding level 4 on the standard scale.
Clause 9 of the Bill (Contingent destruction orders on conviction) amends the Dogs Order to provide that, where a person has been convicted of an offence under Article 25A of the Order (that is, breeding or breeding from, selling or exchanging or giving as a gift or having possession of a dog of a prohibited type) and the court is satisfied that the dog concerned will not be a danger to the public, the dog may be exempted under strict conditions.
Fixed penalties
Clause 11 of the Bill (Fixed penalty offences) provides that failure to notify a district council of the transfer of ownership of a dog subject to control conditions, or to observe any control condition, may attract a fixed penalty.
Clause 12 of the Bill (Payment of fixed penalty to district council) provides that fixed penalties shall be paid to the district council whose officer issued the fixed penalty notice.
Clause 13 of the Bill (Use of fixed penalty receipts of district council) requires district councils to use the receipts from fixed penalties under the Dogs Order only for the enforcement of that Order.
Clause 14 of the Bill (Amount of fixed penalty) provides for councils to set the level of fixed penalties for certain offences (within limits), with a default level of £75 where a council chooses not to set its own level. It also provides for councils to make provision for a discount for early payment of a fixed penalty.
Clause 15 (Assembly control of orders made by the Department) provides that orders under Article 7(6), 8(4), 23(7)(b), 25(2)(f), 25(4), 25B(1), 28(3)(b), 29(5)(b), 33(3)(c), 35(2), 38(6) or 46 of the Dogs Order shall not be made unless a draft of the order has been laid before, and approved by a resolution of, the Assembly.
FINANCIAL EFFECTS OF THE BILL
17. The Bill imposes no new duties on district council dog wardens and support staff. Rather, it provides them with new opportunities to intervene where a breach of the Dogs ( Northern Ireland) Order 1983 has occurred, by attaching control conditions to a licence. This and other proposals may require minor administrative changes, and therefore impose a small cost on district councils. However, the Bill’s proposals to increase the licence fee, increase the level of fixed penalties, and allow district councils to retain the proceeds from fixed penalties will outweigh any administrative costs and meet significantly more of the costs of the dog warden service than is currently the case.
HUMAN RIGHTS ISSUES
18. The Bill contains a power for district council officers to impose control conditions on dog licences. In order to ensure such powers are human rights compliant the Bill also contains detailed provisions setting out the grounds for the imposition of control conditions, what the control conditions may be, the right to appeal against the imposition of control conditions, the right to seek a review of control conditions, what the offence for breach of such control conditions is and also what the defence to such an offence is.
EQUALITY IMPACT ASSESSMENT
19. An assessment of the equality impact of the Bill’s provisions has been conducted. In summary, that assessment recognises that a number of the options under consideration have the potential to impact negatively on certain section 75 groups – namely, people with certain disabilities and older people – and that appropriate mitigation measures have been put in place.
SUMMARY OF THE REGULATORY IMPACT ASSESSMENT
20. Local authorities are likely to be affected by the Bill’s introduction of control conditions, by increases in the licence fee and fixed penalties, and by allowing district councils to retain fixed penalty receipts. These effects are likely to be positive and welcomed.
21. The introduction of compulsory microchipping should have a small positive impact for those businesses which provide the service.
22. Cost of compliance with the proposed changes to dog control legislation would increase for dog owners, with the rise in the standard licence fee from £5 to £12.50 and the cost of compulsory microchipping being the most significant factors in the rise.
23. This rise in compliance costs will be mitigated by the increased availability of reduced rate or concessionary licences.
24. Those who breed and/or sell dogs will face the cost of compulsory microchipping and the increase in the block licence fee from £12.50 to £32.
25. District councils may face small increases in administration costs, which should be offset by the increase in licence fee income and income from fixed penalties for some licensing offences.
LEGISLATIVE COMPETENCE
The Minister of Agriculture and Rural Development had made the following statement under section 9 of the Northern Ireland Act 1998:
“In my view the Dogs (Amendment) Bill would be within the legislative competence of the Northern Ireland Assembly.”
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