Lucy's Flaw & Planning Law (or the total muck up happening in England around dog breeding)

To me, Lucy’s Law is like a terrible movie with an excellent trailer. You see the trailer and you think, “OH YEAH, this is right up my alley. I’m amped, I’m gonna get wine, popcorn, treats, bring the blanket down to the sofa, dogs either side of me, I’m putting the phone away and I’m giving this my full Friday night attention.” And when the film ends, you realise you’ve been scrolling instagram for most of the movie, because the best thing about it was the trailer. (Personal example: Where the Wild the Things Are)

That’s Lucy’s Law. It promised so much and has not delivered.

Before I get to why it hasn’t worked, let’s quickly review what Lucy’s Law was meant to be: Lucy’s Law was meant to stop the third party sale of puppies. Puppies (and kittens; see we do care about cats) under the age of 6 months, being sold in England, have to be sold from the premises in which they were bred. Buyers must be able to see the mother interacting with her pups (or kittens).

Now, this is a really smart aspect of the regulations, because a big reason sellers wouldn't sell a puppy from the place it was raised is because they don't want anyone to see the conditions. The purpose of having a middle man sell the dogs, away from the puppy farm, has often been to hide unacceptable conditions and unhappy breeding dogs. At one point, AirBNBs were used as stage houses to sell puppies, to mislead buyers about the conditions in which these dogs were raised.

Lucy’s Law was meant to put a stop to all of this. These and more regulations directed increased scrutiny toward breeding facilities, by forcing the sale to occur on these premises.

So, what went wrong? Last year, information emerged that some English dog breeding facilities were licensed to breed puppies outside of England and then import the puppies, to be sold in England. And under the black and white letter of Lucy's Law (at least how DEFRA chose to interpret it), this was legal.

Our alarm bells started ringing. As we understood the law -- and as the government relayed the issue to the public -- these dogs breeders should not have been legally able to sell puppies under 6 months in England, UNLESS they had been bred at their facility in England. However, the puppies were being bred outside England, yet still sold in England. We believe that this operates as a legal loophole, one that circumvents the true intention of the law.

[If you’re interested in reading more on this legal back-and-forth (including how much the government knew about this possible “loophole” prior to the commencement of Lucy’s Law), our friends over at One Little Westie have done an amazing job obtaining FOIs on this issue. We have some of this information which we will add to our resources in due course, but they have more at present and have done a stellar job (in TAAP parlance: they are motha clucking heroes). Also see the excellent article by Private Eye in February called “Lucy’s Flaw” .]

Maybe you're thinking, well what’s the problem? So what if dogs are being bred outside the country? One problem is, the public is being misled. The endless self-congratulatory back-patting from the government about the success of this law failed to include an asterisk about the huge caveat. Lucy's Law ACTUALLY operates by lulling English buyers into a false sense of security.

And why is it a false sense of security? Because, in contravention of what the law was supposed to accomplish, we can't now know for certain what the breeding conditions were like in establishments that sell young puppies in England. Outside the country means outside our jurisdiction -- where our welfare laws don't apply. What are these foreign breeding practices like? How much cruelty are we turning a blind eye to? Which laws will regulate the functioning of the establishment and the standards kept? What laws will protect the animals' welfare -- if any? Will a prospective buyer know that their puppy was bred outside of England, meaning that the puppy's welfare may have been endangered? We do not see such information being easily available to consumers.

Lucy's flaw and planning law: Douglas Hall Kennels, Kelly's Kennels, and the UK Dog Breeding Academy

Documents we obtained under FOIA revealed two large scale dog breeders, Douglas Hall and Kelly's Kennels, which had been in correspondence with the Pendle Borough Council about Lucy's loophole (see One Little Westie site). In the records shared with us, we saw some discussion about interpreting the new law between the Council, the breeder's solicitor, and DEFRA. According to the records, the Council didn't want the hassle of judicial review to determine whether breeders could be licensed for facilities outside of England. (To be fair to the breeders, the law is a shambles, with definite ambiguity in its provisions. And to be fair to the Council, we know that councils are desperately underfunded and we can understand their position if the reason was that they couldn't afford an expensive legal battle. But where was DEFRA?) In the end, the Council decided to give licenses to both facilities to breed dogs at the UK Dog Breeding Academy in Northern Ireland. Puppies bred there are then imported to England to sell.

These licenses perfectly demonstrate an inherent problem with this loophole. This gets really interesting, especially given our love of planning law. (Don't go, it really is interesting.)

Douglas Hall Kennels and Kelly's Kennels were given licenses to keep 300 and 200 dogs, respectively, at the same address in Fivemiletown where the UK Dog Breeding Academy is. We also know that David Hamilton (of the UK Dog Breeding Academy) is licensed to keep 250 bitches and a further 100 dogs at that site. So in total that’s 850 dogs that are licensed to that site. Here’s the catch: the planning permission only allows 600 DOGS AND PUPS.

What does this mean? If each of the three businesses licensed to this same site are operating to the capacity of their licensing (which most do), it means this one Fivemiletown site may potentially have 250 more dogs than allowed under the premises' planning permission. And this number doesn’t even account for the litters of puppies, which could bring the number of dogs on site into the thousands.

This is not just a tiny administrative issue. This is a big deal. This is an issue that goes to the adequacy of the facilities to keep these dogs. Planning permission sets out things such as the number of kennels, the size of the kennels, how the waste generated will be removed, how and when the facilities will be cleaned. Crowded facilities create a health hazard -- for the dogs, for the public, and possibly also for animals in the surrounding areas. Planning permissions put a cap on the numbers that can be kept for exactly these reasons, and many more. True, we don't know exactly how many dogs are on the site, only the potential of what the problem could become. That's why we wrote to Fermanagh and Omagh District Council on 8 March 2021.

The first person acknowledged the potential problem and advised that the council would open this as an enforcement case and investigate whether there are any breaches of planning.

This followed with a letter of acknowledgement.

Then -- crickets.

We wrote on 3 further occasions for updates. All of these were ignored by the Council. Why? Why nearly 6 months after we wrote to them about the issue has there been no update?

In the meantime, we understand that a further planning application for an “assisted whelping and socialisation building” (LA10/2021/0757/F) has been made for that same site. We have written to the council to find out whether this planning application arises from, or will have any bearing on, the enforcement investigation, and if so, why they didn't grant us the courtesy of mentioning it.

Fermanagh and Omagh Council: Do better.

What this whole debacle highlights is that there are significant problems with the operation of this English licensing regime. Will a prospective purchaser in England be able to easily find out what the conditions were like in the Northern Ireland facility? Will they be able to easily find out whether the facility was operating within its planning permission and not being overcrowded? If our correspondence with the Council is the standard, it won't be easy at all.

This is not the transparent scheme the government promised. The government and councils' enforcement of Lucy's Law is not in keeping with the intention of the legislature (or indeed even the government webpage on the issue!) and it's time to be honest with the public about what is happening.