Clause 55 - Power to make dog control orders

Clean Neighbourhoods and Environment Bill – in a Public Bill Committee at 3:15 am on 25th January 2005.

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Photo of David Ruffley David Ruffley Opposition Whip (Commons) 3:15 am, 25th January 2005

I beg to move amendment

No. 107, in clause 55, page 50, line 13, leave out paragraph (a).

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire

With this it will be convenient to discuss the following amendments:

No. 100, in clause 55, page 50, line 19, at end add—

'( ) The appropriate person must consult with interested parties before an offence under subsection (3) is prescribed by regulation.'.

No. 110, in clause 55, page 50, line 27, at end insert—

'( ) Regulations under subsection (4) shall provide that no dog control order shall apply in respect of any working dog being used for the driving or tending of cattle or sheep.'.

No. 101, in clause 56, page 31, line 10, at end add—

'( ) The appropriate person must consult with the appropriate parties before regulations are made prescribing the procedure to be followed by primary or secondary authorities for the making of dog control orders.'.

No. 102, in clause 56, page 51, line 10, at end add—

'(c) the criteria which shall be applied to determine the necessity for the making of a dog control order in relation to any offence.'.

No. 103, in clause 56, page 51, line 10, at end add— 

'(d) The procedure to be established to enable an appeal to be made by the public against a dog control order being made.'.

Photo of David Ruffley David Ruffley Opposition Whip (Commons)

We are now into the dogs section of the Bill, which will attract interest even beyond the Committee. Before going into the specifics of the amendments, I should put on record the concern that was expressed to us about lack of consultation with interested parties. The reform of the system of dog byelaws is welcome. The question is whether it is being done effectively in the provisions of this part of the Bill. It is, of course, the case that the current regime—

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

The hon. Gentleman just said that there has been a lack of consultation. I assure him that that is not the case. There has been wide and extensive consultation for a considerable period. I have circulated to the Committee a letter that follows a meeting with two organisations that had concerns about elements of the Bill. Their concerns involved misapprehensions about what needs to be in the Bill and what needs to be in delegated legislation. There has been very wide consultation.

Photo of David Ruffley David Ruffley Opposition Whip (Commons)

We may get on to some of the points that have been made later. I hope that the Minister will respond. I hear what he said. He was also courteous enough to send me a copy of a letter that relates to a later clause. I will not try your patience with it now, Mr. Taylor, but I thank the Minister for that point, to which we will return.

There is no doubt that the regime is costly and difficult to administer and that reform is called for. The clean neighbourhoods consultation set out proposals to streamline the dog byelaw system, which received almost unanimous support from local authorities. However, some authorities also said that they would welcome the chance to designate areas in which dog access is restricted, while pointing out that such a measure would need policing. That is another theme in the proposals—the adequacy of policing. That will crop up later in our deliberations.

I wonder why various bodies have said that the consultation was not exactly as they would have liked. The bodies I have in mind are the respective bodies that include certain members of the National Dog Warden Association, the Dogs Trust and the Kennel Club.

Amendment No. 107 is a probing amendment, because we are not entirely satisfied that the ambit of subsection (3) is sufficiently well drawn. It has been said to us that there is some doubt as to how the powers in clause 55 will actively improve the provisions of the Dogs (Fouling of Land) Act 1996, which makes it a criminal offence not to remove dog faeces from designated land immediately. The National Dog Warden Association is involved in the front line of dealing with issues as specific as that. The 1996 Act was widely welcomed by those with an interest in this area of policy.

Another point arises concerning the limit on the number of dogs one person can keep in a non-commercial environment. What is the precise definition of this restriction? Is it intended that there will be a universal maximum number forming the restriction? I notice from the explanatory notes that regulations will tell us the scope of the offence, giving us the detail that is not in the Bill, but it would be useful to have some indication of what scope each of the individual new offences will have in the regulations.

Amendment No. 100 would require that the ''appropriate person'', the Secretary of State

''must consult interested parties before an offence under subsection (3) is prescribed by regulations.''

Does the Minister believe that any further consultation is necessary now or in the future if more regulations are made? The amendment would place the necessary obligation on the Secretary of State transparently and clearly in the Bill. To have that there would not be contentious.

I have other points on clause 56, relating to duties that we would like to place on the Secretary of State, but would the Minister reply to those arguments in the shape of our amendments?

Photo of Mr Matthew Green Mr Matthew Green Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions, Young People, Non-Departmental & Cross-Departmental Responsibilities

We have tabled amendment No. 110 in this group, which I hope the Minister will reassure me is completely unneeded, because he can envisage no circumstances in which that could ever happen. The reason for the amendment, which was drawn up with the help of the National Farmers Union, which welcomes the new dog control orders, was concern about the extension of the Countryside and Rights of Way Act 2000.

The Dogs (Fouling of Land) Act 1996, which is being repealed, specifically excluded agricultural land, moor, heath and common land from the provisions enabling local authorities to designate land to impose poop scoop requirements on persons in charge of dogs on land where the public are entitled or permitted to have access. Since then, with the Countryside and Rights of Way Act, a lawful right of access to just the type of open country that was excluded from the 1996 Act has come into force—subject to walkers keeping their dogs on a short lead at lambing time and in the vicinity of livestock.

Use of the CROW Act will likely make apparent that there are specific areas of farmland where dog control orders will be required to combat dog-related nuisance. We have in mind the immediate vicinity of a car park, which would be heavily transited by people using the countryside, or a particular piece of countryside used as a route to wider areas. Those heavily used sections could create a problem of   nuisance from fouling or interference with livestock. Dog control orders might be very welcome in those areas.

However, it would clearly be absurd if the dog control order included the working dogs of the farmer managing the land. Committee members would find ridiculous the image of a farmer using dogs to round up his sheep and running behind them with a poop scoop. The amendment would exclude working dogs on agricultural land from dog control orders for that reason. There may be a need for dog control orders on areas of land that are worked by working dogs, but the working dogs themselves need to be exempt from their requirements.

That may become a problem in my constituency, as it contains a fair amount of land affected by the Countryside and Rights of Way Act 2000, and it could become a problem in other hon. Members' constituencies. Will the Minister assure us that by one means or another, whether in the Bill or not, he will resist enforcing that measure?

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs 3:30 pm, 25th January 2005

The hon. Member for Bury St. Edmunds acknowledged that the present arrangements are costly and difficult and he said that some of his amendments were probing amendments. The hon. Member for Ludlow gave us the opportunity to respond to the concerns he raised and was not antagonistic to the results that my party is trying to achieve. I am sure that he will examine my response with his usual searching gaze. Both contributions have been helpful in teasing out our intentions and the best way of achieving the outcomes we seek.

Photo of Mr Matthew Green Mr Matthew Green Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions, Young People, Non-Departmental & Cross-Departmental Responsibilities

I meant to say that although this is a probing amendment, it uses exactly the same wording as section 3 of the Dog Fouling (Scotland) Act 2003, which provides for exceptions to the poop scoop offence in section 1.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I am grateful to the hon. Gentleman for explaining the wording of his amendment. I am sure that it will help Committee members.

It may be helpful if I set the clause in the context of the various measures that apply to dogs. Most of the provisions in this part of the Bill concern our proposals for a new system of dog control orders to replace the existing dog byelaw arrangements. The explanatory notes say that the current arrangements are costly and complicated to administer. They incur costs both for local government and for the Department for Environment, Food and Rural Affairs, and therefore central Government. That is why we propose to replace that system with a new system of dog control orders modelled on the present arrangements for dealing with fouling by dogs that were introduced in the Dogs (Fouling of Land) Act 1996, under which there is an offence of dog fouling that can be applied by local authorities by order in relation to designated land in their areas.

The Bill repeals the provisions of the 1996 Act because it would be confusing for authorities and members of the public to have two sets of provisions in   existence at the same time. Although the repeal was not specifically consulted on, the 1996 Act is the basis of the new regime and was consulted upon widely.

Similarly, under the new system, we propose that specific offences should be set out in regulations. Local authorities will provide for those offences to apply on designated land in their areas. The system will also be available to parish and town councils, which, although they can make byelaws, cannot designate land to deal with dog fouling. It is an expression of confidence in the capacity of parish and town councils that they should be able to undertake this sort of work where they wish. Overall, the new system will be simpler to operate and will provide greater certainty for everybody concerned. Clause 68 also deals with stray dogs.

The hon. Member for Bury St. Edmunds kindly referred to the letter that I have made available to members of the Committee. A comprehensive briefing was sent to the Committee by the Kennel Club that raised several points about such measures. I am pleased to say that, a few days ago, I had a useful meeting with the Kennel Club and the Dogs Trust and I have made available a copy of the letter that I sent to the Kennel Club after that meeting. At the meeting, both organisations made it clear that they welcomed in principle the proposals for dog control measures. We agreed with their concerns about such matters and I assured them that the issues they raised would be dealt with under regulations and guidance. I undertook to ensure that they are fully consulted on such matters before they are put in place. We can discuss their concerns about the provisions for stray dogs when we reach the relevant clause.

The Kennel Club and the Dogs Trust made it clear that they were, in principle, in favour of the change that we are proposing provided that adequate resources are made available. Of course, the transfer of resources is necessary under the new burdens procedures, which is currently under discussion. Although I cannot give an assurance on that point at this stage, I am sure that I shall be able to in due course. Again, we shall come to that matter when we reach the relevant clause.

It is worth my pointing to the fact that there is an important relationship between legislation and other actions that are taken to change behaviour. I referred to dog fouling when we were discussing litter and other issues during our debates last week. I drew attention to the work of ENCAMS in designing campaigns that can be taken up locally and which I am certain have contributed considerably to the reduction in the amount of dog fouling, which is now measurable by the comparisons that are undertaken year on year, to which I have referred.

It is in that context that I come to the specific amendments. I shall not be too harsh, given the fact that the hon. Member for Bury St. Edmunds said that they were drafted to draw out a response to some particular points. I was not clear when reading the amendment why he was seeking to retain a separate   system for dog fouling under amendment No. 107. The proposed system of dog control orders is modelled on the current system for dog fouling, but it will simplify matters for both enforcement authorities and dog owners by having a single regime for all dog offences. I cannot see the benefit of having two sets of rules, not one. A further key problem with the amendment is that existing legislation on dog fouling cannot be used by parish councils, whereas parish councils will be able to take action against dog fouling under the dog control system.

Amendments Nos. 100 and 101 are unnecessary. I give the Committee an absolute assurance that we will consult fully on the draft regulations to be made under the clause, so there is no need to single out particular aspects of the regulations in such a way. As for amendment No. 102, it is for the authority making the order to determine whether a dog control order is needed. Again, I assure the Committee that we will provide guidance on the circumstances in which a district or parish council should consider making a dog control order, but it is important that such bodies can take full account of local conditions. Guidance points them in the direction, but allows local decision making to take place. I am sure that that is the right approach.

This is not an issue on which it would be helpful for central Government to set rigid controls on the exercise of powers by local authorities. Nevertheless, clause 56(4) provides the power for central Government to do so should that prove necessary in future. There is therefore that failsafe mechanism.

For the same reason, I do not believe that the appeal system proposed under amendment No. 103 is needed. The rules of the new system will be clear, and district and parish councils will need to follow the set procedures and the model orders that will be included in the regulations. Failure to do so will invalidate the orders. Any appeal that focuses on the merits of the case for the order would involve substituting the views of an appeal body for those of the responsible council, and there is not a case for that. A decision that was manifestly unreasonable or that was not made following the correct formalities could still be challenged using the usual judicial remedies.

As for amendment No. 110, I accept the points made by the hon. Member for Ludlow. They can be taken account of in a way that is more appropriate and flexible than putting such matters into the Bill. I agree that dog control orders should not apply to working dogs, and I can give an assurance that that will be dealt with in regulations.

There are definitional problems; is a dog a working dog when it is working and not a working dog when it is not? Somebody might go walking in a different part of the countryside with a dog that is a working dog most of the time, but is it a working dog when it is visiting another area? Such issues are not easy to define, but we know what we mean in general terms. There should not be interference with the use of working dogs on farms. In the spirit of our search for agreement, I give an undertaking that this will be dealt with in regulations. 

Photo of Mr Matthew Green Mr Matthew Green Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions, Young People, Non-Departmental & Cross-Departmental Responsibilities

I thank the Minister for that. Farmers who use dogs will be reassured that they will not be caught up in a rather ridiculous scenario.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I am happy to give that undertaking.

I can give assurances that a couple of other points have also been taken into account. Reference was made to the Countryside and Rights of Way Act 2000, and concern was expressed about the lack of exclusions of land from a new regime. Clause 57(3) allows land to be exempted by order. There is also a power for exemptions under the Dogs (Fouling of Land) Act 1996 to be excluded. The fact that that is being repealed does not introduce the inflexibility that was suggested in our discussion.

Clause 55 gives local authorities and parish councils—which are respectively defined as primary and secondary authorities in clause 58—the power to make orders to control dogs. Those powers bring into play a new regime that will effectively replace the dog byelaw-making regime. That must be to everybody's benefit, as it removes bureaucracy for both local and central Government.

Clause 55(3) provides that dog control orders can be made to require owners to clear up after their dogs when they have fouled; require that dogs are kept on leads; ban dogs from certain areas; and limit the number of dogs that a person can walk at the same time. The detail of how they are applied is a matter for regulation and guidance, and it requires the flexibility that does not exist when measures are provided for in primary legislation.

In keeping with the constructive spirit in which the hon. Members for Ludlow and for Bury St. Edmunds introduced their amendments, I hope that they will accept my assurances, withdraw the amendments and support the helpful approach of this clause.

Photo of David Ruffley David Ruffley Opposition Whip (Commons)

I seek two points of clarification. We suggest that criteria should be set out that would be applied to determine the necessity for the making of a dog control order in relation to any offence. In other words, there should be criteria for explaining what the trigger threshold should be. I am not entirely satisfied by what the Minister says because one could imagine a situation in which an over-zealous local authority takes a heavy-handed and disproportionate view of irresponsible behaviour on the part of a minority of dog owners—a sledgehammer to crack a nut—and that may well inconvenience the large majority of responsible owners in an area. The purpose of the amendment is to ensure that the Department provides national guidelines to local authorities on what the threshold should be before they trigger an order.

The second point of clarification is on appeals. We require elucidation on that. With regard to the procedure for appeals, it is not immediately clear how the appeal mechanism will be established. Could the Minister give an indication of how a dog owner could mount an appeal in the face of an order under which that owner has committed an offence? That is in the context of the necessary checks and balances against over-zealous local authorities.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs 3:45 pm, 25th January 2005

The hon. Gentleman has raised two interesting points, on which I hope I can satisfy him immediately. The first is the concept of a ''trigger threshold''. The whole point of taking that approach is to minimise the extent to which the processes are controlled by central Government, although there will be regulations and guidance to ensure that the power is not abused. Such a threshold puts local decision-making into the hands of the local authority, be that the principal authority or the parish or town council. The hon. Gentleman seems to be suggesting that we should devolve that decision-making power to the local level and simultaneously renationalise it. The enthusiasm of Conservative Members for nationalisation on a point of detail that would involve a lot of bureaucracy never fails to amaze me.

Photo of David Ruffley David Ruffley Opposition Whip (Commons)

The Minister cannot get away with that. Behind the amendment is not a suggestion that there should be mandatory guidelines binding the hands of local authorities, but rather that there should be a non-statutory and non-mandatory guideline that gives everyone a clue to the level of mischief that needs to be extant before a dog control order should be introduced. It would not be direct control or centralisation on a statutory basis from the centre, but merely guidance to warn off over-zealous local authorities that use their decentralised powers inappropriately.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

That is interesting. The hon. Gentleman now says that he wants a threshold to be non-statutory, but, if it were, it could not be on the face of the Bill. He also says it would be non-mandatory, in which case it would not even be a subject for guidance. If the threshold were neither statutory nor mandatory, it would merely be an expression of opinion. I have no objection to those on the Opposition Front Bench expressing an opinion; indeed, I am delighted to hear opinions being expressed by a Whip on this occasion, having fulfilled the role of speaking Whip myself. Speaking can be quite enjoyable if one has been suffering in silence for a long time, as happens in that important parliamentary role.

My point is that we are devolving responsibility within a clear arrangement so that local authorities can make their decisions. The powers are there for regulations and guidance to be provided in due course. If we find that local authorities are running amok with intrusive and inappropriate use of these clauses—something I think is so unlikely as to be difficult to contemplate—we would be able to issue regulations. However, if that is not necessary, let us not add to the bureaucracy.

Photo of Mr Matthew Green Mr Matthew Green Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions, Young People, Non-Departmental & Cross-Departmental Responsibilities

Is this not a case where the local electorate should be trusted? If a council were so heavy-handed as to introduce regulations that annoyed every dog owner in the area, there is a fair chance that the councillors who did so would be thrown out at the next set of elections. Were a Tory   council to do that, I am sure the incoming Liberal Democrat council would deregulate and remove the over-zealous arrangements.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

It is not for me to intrude on the private grief of Opposition Members about who will do the worst in future elections, but the hon. Gentleman makes a valid point. Let local authorities deal with these matters within the framework that will be set out in due course and that will give them the maximum flexibility to deal in the appropriate way with the problems in their area.

That is also the answer to the issue of an appeal. Let us be clear what we are talking about. The clause to which the amendment is addressed concerns the power to make a dog control order. The clause does not concern appeals against a fixed penalty notice or a prosecution; rather, it suggests that there should be a right of appeal against the making of an order. As I have indicated, we do not think that that is appropriate. It will be the local authority—the local elected body—taking that decision. Those bodies have all sorts of arrangements governing the way in which they take decisions. They have to act within their powers and are accountable to their local electorate, so I think that we should leave it to them, rather than adding to local bureaucracy by requiring them to create an appeals process against the making of an order.

As I said earlier, there is always a challenge if a local authority gets the process wrong; there is the ombudsman process and the process of judicial review. I would be extremely surprised if it ever became necessary to use any of those fall-back provisions. They are there in the generality of the law, however, should they be needed. I hope that, with that clear explanation, the Bill as drafted is appropriate to these measures and will have the agreement of everybody on the Committee.

Photo of David Ruffley David Ruffley Opposition Whip (Commons)

I have listened to what the Minister said, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 55 ordered to stand part of the Bill.

Clauses 56 and 57 ordered to stand part of the Bill.