Chamber and committees

I should declare an interest as the author of the Control of Dogs (Scotland) Act 2010, which was about public protection and intervening early.

Before I give my reasoning for lodging a motion to annul, I emphasise that, like everyone around the table, I am horrified by dog attacks, on people or on other animals. That is not in question. However, the proposed legislation is not the answer. The lines of questioning that I have heard from members around the table demonstrate that it is bad law. I say—kindly, I hope—to Sharon Dowey that it is bad law in England and Wales. I am not getting into constitutional debates—I am interested in law.

If I get passionate about this, it is not passion without purpose—it is passion for this Parliament delivering good legislation. What I have heard from members around the table—maybe not from all, but from many—shows that the order is not good legislation, because at the very centre of it is something that no one can define: an XL bully dog. It is defined in paragraphs—whether that is guidance or not, we do not know—and it is so complicated that it cannot be amended.

If there is one thing that I have learned about bad law, it is that it cannot be amended. I take members back to the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. Unfortunately, I have been here so long that I remember all these things. The 2012 act was bad law from start to finish, and it started out on exactly the same trajectory as this order, as it was brought forward with sensationalism and haste. At least the evidence on it was challenged by the lead committee, which I convened. At the end of the day, that legislation was repealed.

I am looking at all the things in the legislation before us that are wrong, but the big thing is definition. Katy Clark is quite right: law must be clear. It must be clear for individuals, for the courts and for everybody. This order is a boorach—there is nothing clear about it at all.

What is bothering me is that we will almost have public policing as a result. I have listened carefully to find out how many cases have come up in Scotland, but nobody knows. We are looking on social media and in the newspapers. The day that I take evidence for legislation based on social media and newspaper headlines is the day that I pack in caring.

What we have to look at is this. Was there a better way to do it? Yes, there was—the Control of Dogs (Scotland) Act 2010 should have been tightened up ages ago. There may have been other ways to deal with any dogs being brought up to Scotland; I do not know. The minister has not said anything about that, although perhaps she may do. We might have looked to licensing. We do not have a national microchipping database—I have gone on about that for ages. If we had such a database, we could identify dogs that were not indigenous to Scotland.

Another problem—as if that were not bad enough—concerns the unintended consequences. I know that Fulton MacGregor is very unhappy about the legislation, but he is pinning his hopes—as perhaps Labour committee members are—on the fact that if Labour were to get in at Westminster, it might repeal the England and Wales legislation. In the meantime, however, what will have happened? Dogs will have been put down, others will have been neutered and people will have been persecuted.

The same social media that provides the very flimsy evidence for the number of dogs that are coming up to Scotland will be a hotspot for people reporting others: “Ah’ve seen ma neighbour”—or such and such—“and they’ve got an XL bully dog.”

People do not talk about types—they talk about XL bully dogs. If that is set in stone, they will be reporting neighbours, and what will happen? The police—who, for heaven’s sake, have enough on their plates—will be sent out to measure a dug with a tape measure to see if it complies with the conformation standard that has been invented by DEFRA. If the police then say, “Well, we think it’s an XL bully” in accordance with the standard, the person may say, “Oh, but no—I know my dog’s history. It’s actually a cross between a boxer and a Staffie. I know, because I knew the mother and father of the dog.” There we go—it will go to court. There will be court cases, and I know what the court will say about this legislation and this Parliament—and about this committee, by the way.

I accept, minister, that you have been pushed into a corner, but sometimes when that happens, the thing to do is not simply to throw your hands in the air. I know what the position is, but we need to do something different. In my view, to annul the order would send a message to good people south of the border who know that the legislation is rubbish and that it will be very painful.

At the end of the day, if someone is an unscrupulous breeder or owner—most people are not, but there are a few—they will simply say, “Okay—I’ll breed a dog that can be a fighting status symbol that is not 20 inches”—or 19 inches or whatever—“I’ll make it 18 inches, so it doesn’t comply.” That is what is so stupid about this legislation.

I have been a quarter of a century in this Parliament—people might say that it is a quarter of a century too long. I have endured so much poor legislation, such as the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, from its hasty start to its ignominious finish, and I am watching this one. That is why I am so angry about it: all of you who are sitting around the table know that this order is not good legislation.

I say to the committee, “My goodness—this is radical stuff.” I say to members that I hope that, if you came in here with your mind made up to rubber stamp the order, and that, despite all the concerns and difficulties that you have mentioned, you will still rubber stamp it in the hope that something can be done later, you do not do so.

I hope that you will annul the instrument, and look at a different way to deal with the number of dogs—we do not know what that number is—that are coming up from England. You can stop dogs being dumped and put down, and stop the persecution of good people who have dogs and who have lived happily with their neighbours for years, and whose neighbours might now say, “Hey, you’ve got an XL bully, hen—ah’m no living next door to you any more.” That is the kind of thing happens when you do stupid things with legislation.

I ask you to annul the instrument, and I ask the committee to come back and consider a better way forward, in the interests—I say to Russell Findlay—of public safety, which is paramount. That should involve legislation that is just, and which does not demonise a breed—we do not know what that breed is—or demonise owners who are good people. That is my position.

I move,

That the Criminal Justice Committee recommends that the Dangerous Dogs (Designated Types) (Scotland) Order 2024 (SSI 2024/31) be annulled.

I will come to that. First, I should possibly have stated my registered interests. I am a member of the Scottish Society for the Prevention of Cruelty to Animals and a patron of the Edinburgh Dog and Cat Home. Nonetheless, I assure you, minister, that I come to the matter with—I hope—an objective mind.

Which organisations have opposed the provisions that are coming in? Could you list them, minister?

No—I am asking specifically about the provisions. I know about those other meetings.

Is it not a basic principle of law that it should be clear and understood and not confused?

I am not surprised that the motion to annul is not going to be agreed to. I know that there is unhappiness round the table, and there is a breathing space before the next statutory instrument—the big bad one—comes along, which might allow us to put something else in place. I know that the committee has been under pressure with the threat of dogs being brought up, but there may be a pause during which we can consider not proceeding to the second part. I just lay down that point without notice.

I thank members for their contributions. As I say, my passion is about legislation. I cannae help it—ye cannae take the lawyer out of me, and Katy Clark is in the same boat, as is Pauline McNeill. You cannot help yourself. I appreciate where the committee is, but what has been put on the record today is extremely important. I hope that, when we come to the next statutory instrument, we might be able to do something else. That is all that I will say.

Thank you very much for your tolerance—and I will just add that I like being patronised.

I asked about the efficacy of the 1991 act.

We are considering some of the consequences of the new law in England now. You mentioned 200 dogs, which were put down. That is, some 200 dogs in England were put down by their owners, and they get money from the Government to do that. What is the BVA’s position on that? What are vets’ positions on it? Vets do not like putting down healthy dogs.

I have a short technical question, convener. What remedies are open to the committee if there is a breach of the 28-day requirement? Can you just complain about it, or is there anything else that is open to you to do?

Thank you.

And then what? Apart from just reporting, is there any remedy? Can you say that you are not prepared to accept the situation? Is there a nuclear option?