We are really concerned about the, albeit well-intentioned, misinformation currently doing the rounds on social media and for the impact this might eventually have on the owners of XL Bully types and, more importantly, on their dogs.
There are many, many, posts telling people not to apply for exemption, mainly based on two reasons, one being a debate to be held on 27th November and the other being a Pre-Action Protocol Letter which has been sent to the government, this is the first step to applying for Judicial Review.
The Debate
The debate scheduled for 27th November in parliament which, it is being claimed, will rediscuss the Bill, and the posts we have seen also indicate is an appeal against the Statutory Instrument currently laid before parliament adding the XL Bully to the list of prohibited breed types and that it could amend, or even do away with it completely meaning you would not need to exempt your dog.
THIS IS NOT THE CASE This is not a debate or a vote on whether or not to ban the XL Bully, it HAS been banned (effective 31st December 2023) and the Statutory Instrument is currently laying before a parliament with cross-party support in favour of it.
The debate on the 27th November is about the E-PETITION to the government requesting them not to ban the XL Bully and also at the same time the petition to repeal the current Dangerous Dogs Act and replace it with a new framework.
Both of these petitions got over 100,000 signatures and Government petitions which reach 10,000 signatures qualify for a response and at 100,000 signatures are considered for debate which in most cases is granted, as it has been with these two.
The government response to the XL Bully petition is plain for all to see. Long after the petition reached 100,000 signatures they issued a statement announcing they were to be banned and have since laid the Statutory Instrument before Parliament that does just that.
The response to the second petition regarding repeal of the DDA received a response from the government in which the government said,
“We recognise that some people are opposed to the prohibitions placed on the four types of dog under the Dangerous Dogs Act 1991. However, the Government must balance the views of those who want to repeal or amend breed-specific legislation with our responsibility to ensure that the public is properly protected from dog attacks. We currently have no plans to repeal the Dangerous Dogs Act 1991 and replace it with a new legal framework.”
THIS DEBATE WILL CHANGE NOTHING, it can’t. As the attached screenshot from the UK Parliament website confirms “Petitions debates can’t directly change the law or result in a vote to implement the request of the petition. They can help to raise awareness of the issue among MPs and the wider public, and put pressure on the Government.”
The Letter Before Action/Judicial Review
The inference is being made by some that there is currently a Judicial Review of the Statutory Instrument. This is not the claiming of those intending on applying for a Judicial Review. They have been honest and upfront in stating they have issued a Letter before Action to the government, not that the Judicial Review has been either applied for or granted. They have taken the first steps in potential proceedings, and we wish them every success in their attempts to get a hearing and then get a positive result from that hearing. There are no guarantees that permission to Judicial Review will be given or that any appeal against a refusal will be granted, and there are certainly no guarantees of a successful outcome and nor are the groups involved in the action offering any and rightly so.
However, well-meaning, and understandably anxious people, are inferring that there is to be a Judicial Review and that it will be successful, meaning the law will be scrapped, or that an injunction will be given to delay the ban without even knowing the grounds for any application to review, or the application having yet been made. The group involved in the action are not advising owners either way on whether to exempt or not and rightly so saying “We cannot advise whether you should apply for the exemption now or wait.” They also state that the relevant procedure is being followed and applications will be made including one for an injunction; they are not claiming this to be underway beyond the Letter of Intent.
We at Deed not Breed also do not want to make any decisions for you but we do want you to have the correct information with which to decide, and we will give our honest opinion on what we believe has the least detrimental impact on your finances, your family and on your dog and advise accordingly giving the reasons for that advice.
The Options and Implications
Exempting your dog –
• Exempting your dog and following the staged restrictions when they begin will ensure that you are compliant with the law and that both you and your dog are safe from action against you.
• The initial cost to you before the ban on being in possession, control, or charge of a prohibited type comes into force is the £92.40 exemption fee and the £25 Companion Club membership fee which includes the required level of insurance cover for exempted dogs and any other dog you own
• Neutering of an adult dog over 12 months does not have to be completed until 30th June 2024 and for dogs under 12 months the 31st December 2024.
So, an initial outlay of £117.40 and following the staged rules as they come into force will effectively keep your dog safe from seizure until up to at least the 30th June 2024 (longer for dogs below 12 months of age at the 31st January, 2024), by which time you will have to have produced proof that your dog is neutered if your dog is not neutered already, which gives any judicial process time to progress, and also gives time for enforcers to be trained so they are better equipped to assess the XL Bully type and to be able to indicate, if indeed your dog, in their opinion, has substantial characteristics of the XL Bully type in their opinion. If it does not then there is a mechanism at Article 11 (2) and (3) in the Exemption Scheme to have the certificate of exemption withdrawn and the restrictions therefore removed. There is no detail of the process yet but we would assume this to involve an official declaring there is not sufficient evidence that your dog falls under the ban thereby removing the threat of future seizure for being in possession of a banned type. This has already been done successfully before there was official provision for it, with the consent of authorities in the past, when mistakes in typing have occurred, but we are pleased to see that there is now official provision available, especially with so many owners confused by the very vague standard.
We have a type expert advisor to Deed Not Breed who had this to say to anyone considering having their dog assessed by an independent expert in order to get advice regarding their dog’s type
“An independent expert opinion on the type of a dog which has not already been seized or cleared by enforcers in the area in which it lives, will not prevent the dog from being seized if it is unexempt after the registration closing date if in the opinion of the enforcement agency they have a presumption on examination that it is of a prohibited breed type. Opinions often differ and an independent expert, whilst often extremely useful in a court situation where type is not agreed, is not going to be the person seeing you in the street with an unregistered, potentially type dog and seizing it as a result”
EXEMPTION PROS
• You have the opportunity ahead of the ban to fill out a simple application, pay the exemption fee and obtain third-party insurance to have your dog exempted.
• Your dog (provided you maintain the rules of exemption,) will not be at risk of being seized after the transition period ends. This means your dog will not have to remain in kennels for long periods prior to a hearing, you will not be criminally charged and you will not be subject to potentially thousands of pounds in kennelling costs, legal fees, expert costs if contesting type and court costs.
• Exempting gives an opportunity for any legal challenges to commence/proceed/conclude without risk to either you or your dog for as long as you continue to comply.
• You do not have to prove your dog is neutered until at least 30th June 2024 though we would urge you to do so as soon as possible as failure to provide proof in time will result in your dog becoming unexempt
• Schemes or assistance may be offered during this time by organisations that will reduce the cost of neutering for those unable to afford it. Those currently available are filling up very quickly in the rush to exempt, and in any event, it gives people time to save towards what is likely to be the greatest financial burden attached to exemption.
• There is a mechanism to correct identification mistakes.
EXEMPTING CONS
• Initial outlay of £92.40 exemption fee non-refundable
• £25 Companion Club Membership (£12.50 if you are over 60) lasting 12 months (however for this you get the benefit of third-party liability whatever breed your dog is so you would continue to get the benefits for that period).
• Having to follow the restrictions as they roll out and maintain them if your dog is of type, but you would have to do this if your dog was found to be type after the transition period in addition to to satisfy the court that you are a fit and proper person to keep it; that can be kept secure from escape; it poses no danger to public safety, and also that there is a good reason why you did not exempt whilst you had the opportunity to do so (note “because someone on social media told me not to” is very unlikely to be seen as a good reason. If you intend exempting your dog before 31st January 2024 but are delaying doing so, you would still have to follow the restrictions as they roll out in any event.
NOT EXEMPTING AT ALL PROS
• Not exempting your dog at all either because you don’t agree with the ban, or in the hope it is not type, and not following the staged restrictions when they begin will initially cost you nothing.
• You would not have to have your dog neutered
• You would not have to muzzle your dog or keep it on a lead.
• There would be nothing to stop you exchanging, selling, or gifting your dog if your dog is not type
• Neutering would not have to be undertaken at all if your dog is not type.
• If your dog does not come to the attention of enforcement agencies in its lifetime, or it does and on examination does not in their opinion have substantial characteristics of type, then your dog will be returned and you will be able to resume your lives together and it will have cost you nothing.
• If it does come to attention in its lifetime and is examined and presumed type there is a provision for it to be released on bail.
CONS
• If your dog comes to the attention of enforcement officers on or after 1st February 2024 throughout its lifetime it may be seized for examination.
• If as a result of that examination, there is a presumption that your dog is of the type, it is very likely that your dog would be held in secret kennels pending a court case (currently cases are taking many months to be heard).
• Whilst there is provision for a dog to be released on bail pending a hearing, this is at the discretion of individual police forces and in reality is rarely used. If it were to be used, you would be expected to comply with all of the restrictions placed on the exempted dog until the case concludes
• You could be criminally charged.
• The burden of proof is reversed meaning that you would have to prove your dog is not of a prohibited type.
• Legal aid may not be available even for those on low incomes dependent on the procedure used meaning it could cost into the thousands in legal and expert fees to argue that your dog is not a banned type.
IF YOU LOSE THE ARGUMENT ON TYPE
• Costs for kennelling at an average of 15 pounds plus per day could be awarded against you. (Cases are currently taking up to a year to be heard).
• Other costs, orders and fines could also be granted against you.
• You and your family’s circumstances would come under the scrutiny of the court regarding whether they are able to be satisfied that you are a fit and proper person to own such a dog.
• Your dog’s temperament, past behaviour and the environment it is kept in would come under the scrutiny of the court as to whether they are satisfied that, if exempted, it would not pose a danger to public safety.
• Your accommodation and the environment in which your dog lives would be scrutinised as to whether the dog can be kept securely.
• You would have to give a good reason as to why you did not exempt your dog when given the opportunity to do so.
• There would be a presumption in favour of destruction unless the above meets the satisfaction of the court and, from our experience, what the court requires in order to be satisfied varies wildly from court to court.
• The court may, if satisfied of the above, allow your dog to become exempted, but at what cost?
• You may get disqualified from keeping a dog
• You might go to jail
IF YOU WIN ON TYPE
Your dog will be returned to you, but likely, after potentially months spent in kennels, it may come home with medical or behavioural problems associated with the long-term kennelling of dogs such as loss of house training, separation anxiety and compulsive behaviours such as excess licking causing sores.
DELAYING EXEMPTION UNTIL THE LAST MINUTE
PROS:
• No initial outlay whilst waiting for: –
• A debate/vote being held on the 27th that might overturn the law
• The law to be passed
• The injunction
• The Judicial Review to overturn the law
• Because I can’t exempt my dog until it’s neutered.
CONS
• The debate has nothing to do with the actual legislation it is a result of the e-petition and will be heard in tandem with another e-petition. These types of debates cannot change the law and they are usually given automatically to any e-petition which gets more than 100,000 signatures
• The law is passed. It has been since 1991, the statutory instrument is laid and made to add the XL Bully to the list of prohibited breed types using the mechanism and powers already in the law to do so.
• An injunction must be applied for and there is no guarantee that it will be given
• The application for Judicial Review has not yet been lodged, so is in the early stages and there is no guarantee that permission will even be given at this stage, and certainly none that it will be concluded before the deadline, or that the result will be favourable.
• If the Judicial Review is successful the government could decide simply to amend the law or the statutory instrument to rectify anything that it ruled unlawful by the High Court. It will not be difficult as the ban has cross-party support in the house.
• Some people are being told that they cannot exempt their dog until it is neutered THIS IS NOT THE CASE. You MUST exempt your dog before the 31st January 2024. You then have, in the case of a dog aged over 12 months at the deadline, until the 30th June 2024 to provide proof to the Index that your dog has been neutered. If your dog is below the age of 12 months at the deadline you have until the 31st of December 2024 to provide proof that your dog is neutered. Failure to do so will be a breach of your exemption and your dog will cease to be exempt.
• If you delay you still have to follow the staged rules on the date they come into force so you will still have to lead and muzzle your dog; will not be allowed to sell, gift or exchange it or advertise it for sale, gift or exchange, and prevent it from straying from 31st December 2023.
• Defra and the government as a whole will, like most people, be taking a Christmas break so for a time there will be no one to deal with queries or enquiries.
• The postal service will be under immense pressure with Christmas mail and those intending to apply by post only have until the 15th January 2024 for the index to receive their applications. If mail is lost it will need to be resent.
• If there are any system glitches or errors on applications it could cause people to miss the deadline. Once the register closes to applications the only way to exempt is to be taken through the courts; this will result in most cases with dogs being seized and greater cost and your dog is at risk.
OUR ADVICE
If you own an XL Bully please exempt as soon as you can, if you believe your dog is very close to an XL Bully please exempt, mistakes in identification can be rectified later if required. Some of us watched this all unfold 32 years ago with the Pit Bull type and are still carrying the scars. Please think very carefully before risking your dog.
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