Draft Animal Health and Welfare (Scotland) Bill The Royal Society of Edinburgh (RSE) is pleased to respond to the

Scottish Executive Environment and Rural Affairs Department consultation on the draft Animal Health and Welfare (Scotland) Bill. This response has been compiled by the General Secretary, Professor Andrew Miller and the Policy Officer, Dr Marc Rands, with the assistance of a number of Fellows with considerable experience in this area. Overall, the proposals are a positive step forward, subject to the issues raised below. However, one area that the Bill does not currently address is how it will relate to current regulations in England and Wales, which would be useful in facilitating co-ordinated action. In addition, alongside the proposed new legislation on animal health and welfare the government authorities needs to put in place measures to greatly reduce the risk of highly contagious virus from entering the UK, and adopt modern technology to rapidly detect and identify the virus responsible, as we note in the RSE’s 2002 Inquiry into Foot and Mouth Disease in Scotland, so that the nature of the spread of the disease could be accurately followed and emergency vaccination started without delay if deemed appropriate. This is also an area where the objective of reducing risks to animal health and increasing animal welfare requirements sits uncomfortably with being heavily dependent on globalisation of the food supply and the importation of animal products from third countries which may not have similar requirements for animal welfare. PART 1: ANIMAL HEALTH 1. Do you agree that Scottish Ministers should have greater flexibility of action to deal with foreign, fast spreading animal diseases? (Section 1) Scottish Ministers should have greater flexibility of action, however, a policy for the effective control of livestock epidemics, as if they were purely an agricultural problem is inadequate. The interests of the agricultural and non-agricultural rural economy may not always point to the same policy being adopted. In future there may well be a choice between different courses of action and if this is so, the effect on all sectors of the economy must be considered to reach a balanced view on the best course of action. In considering their options, the Scottish Executive must take account of the effects on the wider interests of the rural economy and involve the appropriate stakeholders. In particular, one of the problems during the 2001 Foot and Mouth outbreak was that compensation for the financial losses caused by restriction orders (movement, breeding) was inadequate or absent. In the first place, for farms that were culled, the intention was to compensate for the capital represented by the livestock lost, rather than loss of income. Secondly farms which were not culled also suffered because of movement restrictions. Indeed, some of the farmers who suffered most were those in proximity to culled areas, who could neither move nor sell their animals and who sometimes did not have enough feed to maintain them in good health. 2. Do you agree that, if considered necessary and taking into account veterinary advice, this should include culling animals close to an area already affected by a fast spreading disease? (Section 1) Yes and no. The 2001 outbreak of Foot and Mouth Disease (FMD) has been the trigger for the introduction of more effective livestock disease control measures within the UK, but this outbreak also resulted in an unprecedented slaughter of animals (particularly of sheep), based on mathematical models that have yet to be validated, that took little account of the huge differences in disease transmissibility between, for example, cattle and sheep, and that are only now under investigation by other groups (e.g. Risk Solutions Cost Benefit Analysis of Foot and Mouth Controls 2005, a report for DEFRA). Furthermore, little attention has been paid to a series of recent papers published in the Veterinary Record (Taylor et al 2004 Vet Rec 154:617-626; Honhold et al 2004 Vet Rec 155:287-294; Thrusfield et al 2005 Vet Rec 156:229-251 and 156:269-278), which raise serious doubts about the efficacy of blanket pre-emptive culling (particularly of sheep), and thus, the validity of predictive models in defining control strategies during the course of an outbreak. Therefore, the Scottish Executive will need to fully consider the implications of new legislation that empowers ministers, ‘if they think fit’ to cause any of the major farm animal species to be slaughtered.

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The standard practice should stand where Contiguous Premises (CP) may be deemed ‘Dangerous Contacts’ and, as a result of veterinary assessment, such animals may be slaughtered. However, Scottish livestock tends to be kept on extensive systems, apart from pockets of intensive farming of pigs and poultry and an important issue is the way in which the term “contiguous” is interpreted for this CP cull. In some instances in the 2001 FMD outbreak this meant that animals distant from an Infected Premise (IP) but on a farm that was contiguous, even if there was stock free land or a wood separating the animals, were culled; yet animals much nearer to an IP, but on a holding that was not strictly contiguous, were left unculled. In the midst of an epidemic it is obviously difficult to operate other than by fairly simple rules, but risk needs to be more carefully assessed, using information about the topography and data on animal populations. For other diseases (e.g. avian ‘flu, swine fever etc), where there is a relatively fragmented population with, for larger herds and flocks, a high level of biosecurity, veterinary assessment and advice should be an essential pre-requisite before decisions are made by ministers. 3. Do you agree that under certain circumstances, vaccinated animals may be slaughtered? (Section 2) Yes and no. Much will depend on progress made with vaccination programmes and with improved methods of diagnosis. For example, tests that discriminate between antibodies arising from modern purified vaccines and those arising from field viruses have been developed. This would permit the use of a vaccination policy without risk of confusion between vaccinated and diseased animals. One such test, a direct ELISA, detects antibody against non-structural proteins (NSPs) of the virus in animals recovering from FMD virus infection. The importance of this is that serological discrimination of vaccinated from infected livestock is not only essential for disease control purposes but also for the early resumption of trade and the Office International des Epizooties (OIE) has recently approved the technology of this type of test on a herd basis. Using such technology the number of livestock that would need to be slaughtered would be greatly reduced to the benefit of animal health and welfare, and with much benefit to people as well. We would also wish to see the Scottish Executive use emergency vaccination in a strategic manner in any future outbreaks of FMD and engage with the EU to shorten the period required between the last case of infection and the resumption of international trade where vaccination has been used and to remove the need to slaughter vaccinates if serological evidence of infection is negative. In addition, within the slaughter policy, the Bill should address the scientific advances made in the cryopreservation of gametes and their value in minimising the adverse impact of a slaughter policy on genetic resources and animal health. Many of the top pedigree breeders now have semen and embryos from their animals cryopreserved as part of their breeding and business strategy and the Bill should legislate on what will happen to cryoconserved semen and embryos from slaughtered herds and flocks. 4. Do you agree that there should be criminal offences that apply to the new Biosecurity Codes? (Section 3) Yes, however with an increase in “hobby” farming and the growth in keeping “pet” farm species, should the issues under paragraph 14 really be restricted to agricultural land? 5. Do you agree that animal gatherings (including animal dealers) should be licensed to operate? (Section 4) Yes, however, in relation to dealers and ‘animal gatherings’, the former seems a clear definition, the latter not and there is always the risk that “disease spread is possible” at any gathering. The statement on animal gatherings, therefore, should be qualified further. 6. Do you agree that inspectors should have powers to check for animal disease and, if necessary, take samples for analysis? (Section 5) Yes, such powers should be available. 7. Do you agree that it should be possible to vaccinate or treat an animal beyond the current area limit? (Section 6) Yes, but in section 6 of the Bill it refers to treating any bird or animal. However, a bird is an animal. 8. Do the 15 specified diseases (listed in Schedule 2B of the Bill) adequately cover any offence under section 9 (deliberate infection of animals with disease)? (Section 7) Yes they do. 9. Do you agree that it is necessary to clarify and extend the powers to seize and safely dispose of carcases? (Section 9) It is necessary to clarify and extend these powers. 2 The Royal Society of Edinburgh

10. Do you agree that it should be a crime to infect deliberately an animal with a disease? (Section 9) Yes, although deliberate infection for research purposes is properly excluded from the Act. 11. In the above circumstances, do you agree that the courts should have the power to ban those convicted from future keeping of, or dealing in, animals? (Section 9) Yes, those convicted should be banned from future keeping of, or dealing in, animals. 12. Do you agree with Scottish Ministers' proposed powers to deal with TSEs? (Section 10) There is scientific knowledge about Transmissible Spongiform Encophalopathies (TSEs) in sheep, man, mice and cattle, and progress is now being made on live diagnosis of some TSEs via cerebrospinal fluid proteins. We support the proposed powers, but while there is a current breeding programme for sheep, to increase their resistance, there seems to be little genetic variation in cattle to susceptibility to BSE. Therefore there is the possibility that all genotypes of cattle are susceptible to BSE. 13. Do you agree that these powers of entry are needed? (Section 11) Yes, these powers of entry are needed, but only on the basis of identifying dangerous contacts through veterinary assessment. 14. Do you agree that vehicles can be stopped in a disease infected area, with police in attendance? (Section 12) Yes, vehicles should be able to be stopped. 15. Do you agree that animal health legislation should reflect more up-to-date sentencing policy for offences that are committed? (Section 13) Yes, animal health legislation should reflect more up-to-date sentencing policy. 16. Do you agree with the proposed revised arrangements for publishing legal matters? (Schedule 2) It will be important that the most effective means of communication is used to communicate to those concerned in the event of an outbreak and that the appropriate mechanisms be incorporated in the Scottish contingency plan. 17. Do you agree that animal samples already taken can be used again for other diagnostic purposes - if necessary without the animal keeper's consent? Yes, samples should be reused, although there will be concerns in the farming community over what government officials may do with the information. PART 2: ANIMAL WELFARE 1. Do you agree with the definitions of "animal" and "protected animal"? (Section 14, 15) The definition of the term "animal", in applying only to vertebrates, perpetuates misunderstandings in the wider public about the classification of species. It would be better to note that the term “animal” includes all vertebrates and invertebrates but state that for the purpose of the current legislation, it will exclude invertebrates. The definition of "protected animal" also has problems. As an example, rabbits that are living in a wild state are "a kind of animal that is commonly domesticated in the British Islands" so they satisfy the first of the three categories listed in Clause 15. As a consequence, they are defined to be "protected" animals even though this is probably not the intention. It will also be important that there is no additional confusion between the definitions that are finally chosen for this Bill and the corresponding definitions in the Wildlife and Countryside Act 1981 in order to avoid the risk of acts of cruelty to animals being covered by neither of the Acts. In addition, the Bill fails to embrace advances in foetal physiology that merit some protection of the welfare of the foetus. In this regard, it is out-of-step with the 1986 Animals Scientific Procedures Act for which Home Office returns have to be made for farm animal foetuses involved in experiments. 2. 3. Do you agree with the definition of the person who is responsible for an animal? (Section 16) Yes, we agree with the definition. Do you agree with the scope of the offence of unnecessary suffering? (Section 17) The Bill will need to relate to regulated procedures that are licensed under the Animals (Scientific Procedures) Act 1986. Temporary capture and release of animals is a common practice in science, but this can result in a small proportion of animal deaths. Some of these procedures are licensable under an 3 The Royal Society of Edinburgh

"enactment" but not all are. For example, tagging animals is not always licensable. The licensing process should ensure that properly regulated science studies are allowed to remain legally compliant. There may also be confusion in the situation when a member of the pubic come across a protected animal (such as a cat) that has been injured by a motor vehicle. Para (1) of Clause 17 seems to make them responsible for addressing the matter even though they are not responsible for that animal. 4. Do you agree with the definition of mutilation and with the provision that certain procedures can be carried out if specified in regulations? (Section 18) Yes we agree with the definition of mutilation and the provisions in Section 18. 5. Do you agree with the scope of the offence of cruel operations and administration of poisons? (Section 19, 20) Yes, we agree with the proposed scope of the offence of cruel operations. 6. 7. Do you agree with the scope of the offence of animal fights? (Section 21) Yes, we agree with the scope of the offence of animal fights. Do you agree with the provisions to ensure the welfare of animals? (Section 22, 23) While we agree with the provisions to ensure the welfare of domesticated animals, there is probably never an occasion when all the provisions in Section 22.3 can be complied with for non-domesticated species. This would have implications for the captivity of wild animals in zoos. 8. Are the powers of Scottish Ministers sufficient and satisfactory to ensure that animal related activities can be adequately licensed and registered? (Section 24) Yes, we agree with these license and registration powers. 9. Do you agree that Scottish Ministers could prohibit, by regulation, the keeping of any animal at domestic or specified premises? (Section 25) Yes, we agree with this regulation although there would be merit in further consultation on the extent of this prohibition. 10. Do you agree with the scope of the offence of abandonment? (Section 26) Yes, we agree with the scope of this offence. 11. Do you agree that there should be a prohibition on the selling of animals to persons under 16 years of age? (Section 27) Yes, there should be a prohibition on the selling of animals to persons under 16 years of age. 12. Do you agree that animals should not be used as prizes unless given in a family context? (Section 28) Yes, animals should not be used as prizes unless in a family context. 13. Do you agree with the powers that an inspector or a constable will have to deal with animals in distress? (Section 29) Yes, although in undertaking these powers, consideration will need to be given to where the animal is kept and any associated farm biosecurity problems. In addition, if animals are taken without veterinary certification, and subsequently found not to be in distress, then compensation should be available to those responsible for the animal. 14. Do you agree with the powers that are available to courts to deal with animals taken into possession? (Section 30) Yes, we agree with these powers. 15. Do you agree with the extent of the powers that are available to courts to deal with animals taken into possession? (Section 31) It is not clear how a healthy animal, not to be returned to the owner, is to be dealt with by the inspector who is required to make the application. 16. Do you agree with the provisions which allow an animal to be destroyed? (Section 32) Yes, we agree with these provisions.

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17. Should Scottish Ministers have powers to make regulations to establish animal welfare advisory bodies and facilitate the co-ordination of bodies that have functions relating to animal welfare? (Section 33) Yes, there should be such powers. 18. Do you agree with the procedures under which Scottish Ministers can issue animal welfare Codes of Practice and the legal status of these Codes? (Section 34) It should also be made clear that codes which already apply to farmed species should be applied to species in the “pet” context, if this is indeed intended. 19. Do you agree with the provisions of deprivation Orders, destruction Orders, disqualification Orders, breach of disqualification Orders and the suspension of orders pending appeal? (Section 35, 36, 37, 38, 39, 40) Yes, we agree with the provision of these Orders. 20. Do you agree with the timescales for bringing proceedings for an offence under the Bill? (Section 41) Yes, we agree with these timescales. 21. Do you agree that bodies corporate or Scottish partnerships and individuals within them should be guilty of an offence? (Section 42) Yes, bodies corporate and individuals within them should be guilty of an offence 22. Do you agree with the range of penalties for the different offences? (Section 43) Yes, there should be a range of penalties. 23. Do you agree that fishing should be excluded from the scope of the welfare part of the Bill? (Section 45) Fishing should be excluded from the scope of the Bill while current knowledge of fish welfare is inadequate, although presumably farmed fish are included within the Bill. 24. Do you agree with the system for appointing 'inspectors' and that inspectors will not incur civil or criminal liability? (Section 46) Yes, although the inspectors appointed will need to have appropriate training and experience if they are to incur no liability. 25. Do you agree with the powers of entry, search, inspection and seizure which authorised persons will be given? (Section 48) Yes, we agree with these powers. 26. Do you agree with the provisions for making regulations under the Bill? (Section 49) Yes, we agree with these provisions. Additional Information In responding to this consultation the Society would like to draw attention to the following Royal Society of Edinburgh responses which are of relevance to this subject: A contingency plan for the possibility of BSE in sheep (January 2002); Inquiry into Foot and Mouth Disease in Scotland (July 2002); National Scrapie Plan: Scrapie Flocks Scheme (February 2003); Preparing an Animal Health and Welfare Strategy for Great Britain (April 2003); Preparing for a new TB Strategy on bovine tuberculosis (April 2004); The UK Contingency Plan for the Possible Emergence of Naturally Occurring BSE in Sheep (August 2004). Copies of this response and of the above publications are available from the Policy Officer, Dr Marc Rands (email: mrands@royalsoced.org.uk) and from the RSE web site (www.royalsoced.org.uk). July 2005

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