XL Bully dogs are still dangerous when they cross the border - Andrew Stevenson

There ought to be no bone of contention between Westminster and Holyrood over the characteristics of a specific dog breed, writes Andrew Stevenson

Dogs can be happy-go-lucky fellows, cheeky scamps with a wink in their eye. Some may be gentle and sober companions. Or they can be of a type designed to fight either each other or to hunt large animals such as wild boar. Bred to achieve such feats, an adult male Dogo Argentino can weight over 7 stones. This is one of four breeds banned in the UK under the Dangerous Dogs Act 1991. Another is the American Pit Bull Terrier. This is the principal breed in the hybrid known as the XL Bully, an even heavier creature than the Dogo. After a recent spate of attacks by the XL Bully it has just joined the Act’s list of shame, but only in England and Wales, although it now appears that Scotland is about to follow suit.

One might expect that whether a particular breed of dog is inherently dangerous is something which ought to be agreed across the island of Great Britain. Instead, at the moment, XL Bully dogs are outlaws in England but not here in Scotland. Not surprisingly, the news has featured accounts of how these canine refugees are now being transported north in vans to seek sanctuary in Scotland. This disunity has smacked of the Scottish Parliament choosing to legislate differently simply because it can.

Some things are intrinsically risky to human health and safety, such as a firework, a crossbow or a syringe containing heroin. It makes sense to examine the evidence, including statistics of harm, and to reach a consensus on such risks within a territory where they may freely be moved with no border controls. There ought to be no bone of contention between Westminster and Holyrood over the characteristics of a specific dog breed.

XL Bully dogs are outlawed in England but not Scotland (Picture: Jacob King/PA)

Law and order is a devolved matter and the way in which dog ownership is policed and offenders prosecuted can legitimately be distinguished between Scotland and England. For example, the Control of Dogs (Scotland) Act 2010 provides for a unique Scottish Dog Control Database. However, just as a leopard cannot change its spots a dog does not magically change its temperament or inclinations upon crossing a border. A divergence in how their inherent nature is regarded within Britain is not in the public interest.

Dog legislation was confusing even before devolution. A client of mine owned a bullmastiff which savaged a social worker who had arrived at an unexpected hour. The client was charged under the 1991 Act. When it was explained to the procurator fiscal that the Act applied only to public places, the attack having occurred in a private garden, the charge was changed to one under the Dogs Act 1871 (since repealed by the 2010 Act).

This was another blunder. That Act required a dog owner to control or destroy an unruly dog. Given that the bullmastiff had embarked on a one way trip to the vet only days after the attack the 1871 Act was as pertinent and as effective as flogging a dead horse. Undaunted, the fiscal amended to the common law charge of dangerous and reckless conduct. On arrival at Kirkcudbright Sheriff Court I found ladies of the Canine Defence League protesting stridently at what they thought was a capital trial.

The League members’ fervour illustrates that dogs arouse strong feelings, not all of which are rational or proportionate. Regarding XL Bullies, there ought to be consistency, uniformity and clarity north and south of the Border. The First Minister’s announcement that Scotland will follow England and Wales is sensible and to be welcomed.

Andrew Stevenson is Secretary of the Scottish Law Agents Society, a voluntary organisation which represents solicitors