Monday, 14 April 2014
Canine Breed Specific Legislation and Irrationality in UK Law
In my last post here, I wrote about Bob Crow's support of my attempts to get canine breed specific legislation (BSL) repealed, and mentioned one strategy I had undertaken, the result of which I was awaiting at the time of Bob's death.
A few days later, that result came through. I had written to the Law Commission, in response to their call for proposals, to get certain unfair laws changed. I demonstrated why Section 1 of the Dangerous Dogs Act (the part pertaining to BSL) is unfair, irrational, wasteful of resources, and a futile way of dealing with any problems that may (or indeed may not) be related to dog welfare and control, or public safety.
The Law Commission turned down my proposal. The reasons for this rejection are, in my opinion, inadequate, lazy and irrational in a number of ways. Their rationale for the rejection was as follows:
"We have decided not to include your project in our 12th Programme because it is fundamentally a practical matter better dealt with by veterinary experts, and others with expertise in dog breeds and behaviour, in conjunction with the Government."
The problems with this rationale are:
1. Law is not made by any sort of 'expert' as such, but within a judicial system. Therefore repeal of BSL was within the remit of the Law Commission.
2. The evidence that I supplied (from myself and others) constituted an adequate form of expertise which could have (indeed should have) been taken into consideration by any party in a position to repeal the legislation.
3. By deeming BSL a 'practical matter' by the logic of the Law Commission, ANY law is merely a 'practical matter best left to the experts and the government', meaning no-one should even bother asking the Law Commission to examine problematic legislation, and no legislation should ever be repealed by the judicial system or subject to public objection and campaigns to change. Rape in marriage could still be legal because "it's fundamentally a practical matter".
4.By the Law Commission's logic, laws on driving safely constitute "fundamentally a practical matter" best left to Casualty doctors and surgeons to deal with.
The following was the remit of consideration for proposals by the Law Commission:
"Please tell us about a problem only if it relates to the law and is:
causing substantial unfairness, or
widely discriminatory or disproportionately costly, or
caused by laws or policies that are complex and hard to understand or
caused by laws or policies being out of step with modern standards."
As the consultation period is now over, I am making public my proposal, made to the Law Commission last year, which followed the rubric of their questions. I will exhibit this on this blog in another post, and have already exhibited it on my facebook group "Strategies to repeal BSL UK" (searchable on Facebook). Alternatively, people may request a copy by various routes (I'm @academicange on Twitter, for example) and I can arrange.
Since I sent this proposal to them last year, I have learned two things. One is that the "burden of proof" on the defendant, while condemned by lawyers, is not unprecedented, as I had originally believed. See A. Ashworth and M. Blake, 'The Presumption of Innocence in English Criminal Law'  Crim LR 306 for more on this.
The second is, that due to the efforts of another person using the Freedom of Information Act, and to whom I am extremely grateful, I was finally able to access the unstable and poorly sourced document used by police, and recommended by DEFRA, to deem a dog of 'pit bull type'. This document is from a 1970's pit-bull fancier newsletter of all things, and frankly has to be seen to be believed. It demonstrates how utterly unstable the category of 'pit bull' actually is, to the point that any dog could be said to be one, and this ties in with both what is known about canine genetics and the so-called 'pit bull', and the issue of function versus form, as discussed in Karen Delize's The Pit Bull Placebo.
Canine breed specific legislation can be demonstrated to be perversely irrational in many ways. The Law Commission's decision to ignore appears part of a tapestry of irrationality in UK law, that I've only in recent years perhaps come to appreciate more fully.