Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill

The Convener (Gillian Martin)

Welcome to the Environment, Climate Change and Land Reform Committee’s 28th meeting in 2019. I remind everyone to switch off their mobile phones or put them on silent as they may affect the broadcasting system.

Under agenda item 1, we will hear from Scottish Government officials on the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill. I am delighted to welcome Leia Fitzgerald, wildlife management team leader, wildlife management and biodiversity unit; Grant McLarty, solicitor, animal health and welfare branch, directorate for legal services; Hazel Reilly, solicitor, forestry, natural resources and climate change, directorate for legal services; and Andrew Voas, veterinary head of animal welfare, animal welfare branch. Thank you for coming in. Will one of you set out the context for the reforms that are proposed in the bill and provide an overview of the scale of the challenge relating to animal welfare offences?

Andrew Voas (Scottish Government)

On animal welfare offences, we include information in the financial memorandum about convictions over the past 10 years. During that time, there have been 773 convictions for animal cruelty or animal fighting offences, with 41 custodial sentences and 147 community sentences; the remaining convictions resulted in fines.

We should bear it in mind that convictions are not necessarily a direct measure of offending behaviour, but they give an indication of it. To give the issue perspective, with 41 custodial sentences over 10 years, you could say that, on average, every year there are four very serious animal cruelty or animal fighting offences that have resulted in custodial sentences. Obviously, those offences have raised a lot of public concern because of their very serious nature. There have been sickening examples of sadistic or depraved behaviour. Unfortunately, we have seen cases involving animals such as dogs being tied to a tree, covered in petrol and set on fire. There have been more recent cases involving puppy farming or animal fighting that have been truly appalling. Such offences are relatively rare, but they create a lot of understandable public concern.

On the overall direction of travel, we are concerned about some new developments, such as in the puppy trade. That has gone on for a while, but we are aware that it is a serious problem and that organised crime groups are involved in importing animals.

The Convener

Do you think that such things have escalated because the penalties have been too low?

Andrew Voas

I would not necessarily say that there is a direct cause-and-effect relationship, but that is possibly true. We have heard reports that, because of the penalties involved, organised crime groups might consider things such as illegal puppy dealing or puppy importing to be relatively low risk compared with other criminal activities, such as dealing in drugs or firearms. That view has certainly been expressed.

The Convener

Okay. The bill is about penalties, not new offences. Is that correct?

Andrew Voas

Yes, that is correct. The bill is focused on increasing penalties for existing offences, introducing fixed-penalty notices and looking at powers for enforcement authorities relating to taking animals into possession. It is about penalties and powers; it is not about creating any new offences or any new areas of responsibility.

The Convener

Powers will also be given to people who recover animals. Currently, animals have to be kept for the duration of any court proceedings. There is a change there.

Andrew Voas

Yes. The powers in the Animal Health and Welfare (Scotland) Act 2006 allow enforcement authorities to take animals into possession if they are suffering or are likely to suffer. Currently, a court order is required to allow those animals to be moved out of their possession. The bill proposes a new procedure that will remove the need for that court order, so the procedure should be more straightforward and swifter.

The Convener

So animals could be rehomed or sold on.

Andrew Voas

Yes. They could be more swiftly rehomed or sold on.

Finlay Carson (Galloway and West Dumfries) (Con)

On the fines for puppy trafficking, you mentioned puppy trafficking not being regarded as being in the same group as drug dealing, for example. However, a litter of puppies could be worth £10,000, £15,000 or £20,000. I know that we are looking at potentially unlimited fines, but what are the maximum fines that have been imposed until now? Is it likely that the fines that are imposed as a result of the bill will be substantially greater?

Andrew Voas

The fines that are imposed will, of course, be a matter for the courts. The bill’s purpose is to give the courts the flexibility and additional powers that, in some cases, they have asked for to deal with the most serious offences. Currently, a potential fine for unnecessary suffering is £10,000. That will be changed to an unlimited fine for the worst cases of animal cruelty. [Interruption.] I am sorry: the figure is £20,000. I have been corrected.

The Convener

I am sorry, but would you say that again?

Andrew Voas

The existing maximum available fine for section 19 offences is £20,000.

The Convener

That could become unlimited.

Andrew Voas

It would become unlimited.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

An issue arose there. I presume that the Proceeds of Crime Act 2002 would enable the state to recover the profits that large dealers made.

Andrew Voas

Yes. The Proceeds of Crime Act 2002 certainly applies, and it has been used.

Stewart Stevenson

That is fine. I simply wanted to put that on the record. Thank you.

My interest is in how fixed-penalty notices work. It might be useful to hear from Grant McLarty—I am not sure; it is up to you guys—about whether the acceptance of a fixed-penalty notice creates a criminal record. What would happen to the person? That is a general question about fixed-penalty notices. Are there any differences in that regard with the fixed-penalty notices that are proposed in the bill?

Andrew Voas

Let me deal with that question in general terms; Grant McLarty can give more information if necessary. The bill is intended to create the powers to enable fixed-penalty regimes of different types to be introduced in future regulations. At this stage, we are not getting into detail about exactly which FPN regime will be appropriate in individual circumstances. The bill asks for powers that are sufficiently flexible to allow us to introduce in future regulations FPN regimes of different types for different circumstances.

Stewart Stevenson

We are talking about fixed penalties for minor and technical offences. I can sort of understand “technical”, but what might “minor” mean in this context? You might need to give the committee an example.

Andrew Voas

It will be a requirement that FPN regimes apply only to offences that have a maximum penalty of up to six months’ imprisonment and a fine at level 5 on the standard scale, which is currently £5,000. They will certainly not apply to offences for which there are higher penalties.

In practical terms, we see the need for FPN regimes in relation to, for example, offences that do not necessarily involve harm to individual animals, in the context of our attempts to improve overall compliance with legislation to benefit animal health and welfare more widely. For example, we are planning to introduce legislation to require licensing of animal sanctuaries and rehoming centres and to modernise licensing for dog breeding and pet sales, and there might be paperwork offences, such as not applying for a licence or not holding one, which would not necessarily involve an animal being harmed. It is important that overall compliance with the regulations is achieved.

Stewart Stevenson

I understand that, up to now, fixed-penalty notices have, in essence, been levied on individuals. The example that you gave suggests that it might be possible to levy an FPN on a corporate entity. Some animal sanctuaries are all about an individual, but many of the larger ones are corporate entities and charities. Is it envisaged that fixed-penalty notices will be levied on such bodies?

Andrew Voas

As I said, at this point we are interested in getting the powers to introduce appropriate FPN regimes in future. In future, we will be able to consider the detailed, technical questions of how FPN regimes will operate and on whom penalties could be levied. I think that, in principle, FPNs could be levied on corporate bodies and legal persons as well as on individuals.

Stewart Stevenson

The consultation on animal health is still open, but you have brought forward proposals in that regard. I accept that proposals will be implemented via secondary legislation, but the approach seems slightly unusual. Are you anticipating the results of the consultation? Will you use the results to amend the bill at stage 2?

Andrew Voas

This is partly about the timing of the consultation on animal health. There have been initial discussions with local authorities, primarily about the principle of fixed-penalty notices for animal health offences, and there is a clear desire to introduce FPN regimes for animal health offences, and a need to have the ability to do so. That is why there is provision for animal health FPNs in the bill.

The purpose of the consultation is really to go into a bit more detail about what sort of FPN regimes would be appropriate for animal health. As local authorities will be involved in administering such regimes, a lot of the arguments and considerations in that regard are probably similar to the ones about FPN regimes for animal welfare. That is why we thought that it was justifiable to include in the bill a general provision, which could be refined after the results of the consultation are known. The consultation will close on 23 December and we hope that an analysis of the results will be available early next year.

The Convener

A bill such as this one is about preventing cruelty or harm to animals. That is what we want to achieve. Has there been any analysis of how crimes of the type that you mentioned have reduced as a result of penalties like those that are envisaged in the bill? For example, have you looked at other countries that have done something similar? What reduction do you anticipate?

Andrew Voas

We are increasing the penalties to give the courts the powers to deal with the most serious offences in an appropriate way. The bill is about giving the courts extra powers to deal with offences appropriately.

The Convener

But it should be a deterrent as well.

Andrew Voas

We have looked at the situation in other countries. There are quite complicated arguments about deterrence. We have to balance the seriousness of the penalty with the probability of someone being detected or apprehended. Deterrence may work better with crimes that have more consideration and pre-planning. For example, there may be greater deterrence with crimes such as animal fighting, which might require a fair degree of preparation and planning, than with crimes in which somebody acts violently and abusively towards an animal on the spur of the moment.

Primarily, we see the bill as giving the courts the powers to award appropriate sentences that reflect the seriousness of the crimes that are committed.

Mark Ruskell (Mid Scotland and Fife) (Green)

Alongside fixed-penalty notices and custodial sentences, are there other approaches that can work to re-educate people effectively? I am thinking about awareness courses or sanctions such as banning people from keeping animals. Do you have evidence on the effectiveness of those measures and are they covered by the bill in some way?

Andrew Voas

It should be remembered that various options are available to enforcement authorities before they reach the point of referring a case to the procurator fiscal. Enforcement authorities give a lot of general advice and issue warnings, and some issue care notices under the 2006 act. When a case is put to the procurator fiscal, the fiscal also has non-court options such as warning letters or fiscal fines.

I see the attraction of awareness courses and that sort of thing for convicted offenders, but we have to remember that the number of convictions is relatively small and that, to provide that sort of awareness course, we would need somebody to operate it. Currently, community payback orders require local authorities to set up training or awareness courses so that people who have committed offences can be sent on them. If we were to do something like that—

Mark Ruskell

Can you envisage a community payback order being applied to, for example, a gamekeeper who is convicted of a wildlife crime? What would be a suitable community payback order for such a person?

Andrew Voas

We have considered that in general terms, but we have to be aware of the practicalities. That approach would require suitable courses to be set up and operated so that convicted people could be sent on them.

Mark Ruskell

The bill does not extend the powers of the Scottish Society for the Prevention of Cruelty to Animals in relation to wildlife crime. There is a mismatch between the Scottish SPCA’s current powers in relation to domestic animals and its ability to detect and help to bring people to prosecution for wildlife crimes. Why does the bill not extend the Scottish SPCA’s powers? The organisation is a uniformed service that does effective work with domestic animals. What is holding us back from extending its powers to include wildlife crime?

Andrew Voas

As I understand it, the issue was addressed in a letter to the committee in May 2017, which explained that, with wildlife crime, it was considered more appropriate for police constables to use the full range of powers and facilities that the police have available. That led to an increase in the number of wildlife crime officers. It was decided to go down that route back in May 2017. I know that the issue has been raised with the committee recently. As far as we know, the Scottish SPCA made an offer, which was considered, and the reasons why that offer was not taken up fully were explained in the letter in May 2017.

Mark Ruskell

That letter to the committee outlined a range of actions, one of which was the establishment of special constables on a trial basis to deal with wildlife crime in the Monadhliath area. Why can we not see the evidence and outcomes from that trial to allow us to know whether supplementing the work of wildlife crime officers is a more effective route to tackling wildlife crime than the Scottish SPCA? I am left without knowing the outcome of the process and whether it was effective.

Leia Fitzgerald (Scottish Government)

Along with the police and the Cairngorms authorities, we are carrying out an assessment of the effectiveness of that pilot. We are actively working on that, but it is at an early stage. We are happy to provide the committee with more details, once the assessment has been advanced.

Mark Ruskell

Will that come under our scrutiny of the bill?

Leia Fitzgerald

I do not have timescales, but we will look into that, and I hope that we can get back to you with an indication of when we will complete the assessment process.

The Convener

We would be grateful if you could write to give us an indication of that.

Claudia Beamish (South Scotland) (Lab)

Having been on the previous committee during the previous session of Parliament when the idea of extending the Scottish SPCA’s powers to wildlife crime was raised, I find it puzzling that it is not thought appropriate for the Scottish SPCA to be able to offer additional support to the prosecution of wildlife crime. I do not understand that decision, given that Police Scotland is up against it in terms of resources. I appreciate that there is a pilot in the Cairngorms—we are interested in that—but it would be helpful for the committee to understand the reasons why it is not thought appropriate to extend the Scottish SPCA’s powers. If not now, perhaps you could give us that information in writing. The process has gone on for a long time.

The Convener

We can ask the cabinet secretary the reasons behind that.

Claudia Beamish

Yes, but it might inform developments if the bill team could let us know that—if that is appropriate.

Leia Fitzgerald

We can certainly provide more information in writing, if that would be helpful. As Andrew Voas said, this matter was looked at at the time, since when Police Scotland has increased the number of wildlife crime officers so that there is now one in every division. There is extensive training so that people in Police Scotland more widely are trained. The situation—

Claudia Beamish

With respect, from evidence that I have heard and from going out with people who are on the ground, I know that in South Scotland, the police—with the best will in the world—sometimes take a considerable amount of time to respond. Incidents happen in remote areas, where evidence can be damaged by the weather and must not be touched, and other such issues come up. I still do not understand why that extra support is not possible, when the police are up against it. I am highlighting the issue now.

Angus MacDonald (Falkirk East) (SNP)

Continuing the fixed-penalty notices theme, when do you envisage the Government bringing forward regulations on FPNs? Are they likely to be affirmative, and who will manage the use of FPNs?

Andrew Voas

We do not have any immediate plans for individual FPN regimes but, as I mentioned, the licensing legislation that is being introduced might be where we seek to introduce the first FPN regimes relating to animal welfare.

The regulations will certainly be affirmative, as is the case for all regulations that are made under the 2006 act, and they will come before Parliament. They will probably come to this committee or possibly, in the case of animal health or farm animal-related regulations, the Rural Economy and Connectivity Committee. There will obviously be a requirement for due consultation before those regulations are put forward.

Primarily, it will be local authorities that will administer the FPN regimes, and they will be responsible for the licensing work that we mentioned. A lot of the animal welfare enforcement is done by local authorities. Depending on the exact situation and the purpose of the FPN regime that is developed, other bodies such as the Animal and Plant Health Agency or Food Standards Scotland may be involved.

Angus MacDonald

Do you envisage any capacity issues for local authorities? We always get that feedback from them.

Andrew Voas

We are interested in introducing regulations that will assist local authorities. We know that local authorities are keen on the idea of FPNs in other areas, and we have been discussing with local authorities what future FPN regimes might look like for animal health and welfare enforcement. Generally, local authorities are welcoming of that. Although, inevitably, it is possible that there will be an additional task, there is the opportunity to recover some of the costs of enforcement through the FPN regime. However, those are all details that will be developed in due course when we bring forward the regulations.

Finlay Carson

To tidy up on fixed-penalty notices and other sanctions, is there a possibility in the bill to use the income that is generated from fixed-penalty notices to assist in promoting good animal welfare more widely? If not, are there significant barriers that prevent that possibility?

Andrew Voas

As I mentioned, the basic purpose of the bill is to provide the overall power to introduce FPN regimes of different types and for slightly different purposes in future welfare or health legislation. The focus of the bill is on providing the suitably flexible power that will allow us to do that. As those future FPN regulations are introduced, we can consider exactly how the income should be channelled, who it should go to and what purposes it could be used for. In principle, there is nothing that would necessarily prevent income from being used for particular purposes. However, that is not really the purpose of the bill.

Finlay Carson

Is there potential for the increased use of powers to ban people from keeping animals—whether domestically or for commercial farming—or to require offenders to undertake training to allow them to keep animals in the future?

Andrew Voas

The 2006 act already contains the power for courts to give disqualification orders when an offender is convicted. Those disqualification orders can prevent people from keeping, working with or—basically—having anything to do with animals. When people are convicted of an offence, the courts already have a range of powers. We do not anticipate that changing as a result of the bill, as those powers already exist.

Finlay Carson

I will move on to the issue of animals that are taken into possession to protect their welfare. Over the past 13 years, court orders have been used only 40 times to allow local authorities to take animals away for their welfare, either to be rehomed or to be destroyed. The Government said:

“it has not been possible to produce a reliable figure for the total number of animals”.

Why is that the case? Should it raise concerns, particularly given that the bill would allow animals to be taken into care without the requirement of a court order?

Andrew Voas

To correct Finlay Carson slightly, the enforcement authorities have the power, through the 2006 act, to take animals into possession. The court order comes in when they need to deal with the animals after they have been taken into possession.

We asked all 32 local authorities in Scotland for as much information as they could provide on the times when they had taken animals into possession and then sought court orders. However, it should be remembered that we were asking them to give information covering the past 12 years and that there was no formal requirement to record information in any particular format, so local authorities had dealt with it in a variety of ways. Some of the information will be in case files that are several years old. We got a lot of useful information from several local authorities, but we could not honestly say that we had a complete picture, which is why we said that we could not provide reliable information overall. We should also bear in mind that cases can involve varying numbers of animals; there could be one or two animals or, in the case of farm animals, several hundred. There is wide variation in the numbers of animals that have been taken into possession and in the outcomes for animals in terms of court orders and being sold on or rehomed.

Finlay Carson

Are there specific provisions in the bill for councils to recover the cost of caring for commercial animals that have been seized, or do the provisions address more general issues?

Andrew Voas

Do you mean in relation to the arrangements for taking animals into possession?

Finlay Carson

Yes.

Andrew Voas

The existing arrangements for cost recovery allow local authorities to recover their costs from the proceeds of animal sales and from the animal owner. There are often practical difficulties in doing so, particularly if large numbers of animals are in their possession for a long time. The purpose of the new process is to allow councils to make proper arrangements for animals more quickly, which would minimise the cost—that is really what it is about.

We are doing this to improve animal welfare and avoid suffering by animals that have been taken into possession by allowing proper arrangements to be made reasonably swiftly. We are thinking primarily of commercial situations involving dog breeders or farm livestock, which are probably the most problematic situations, or potentially the animal hoarder scenario, in which somebody has acquired a large number of animals that need to be dealt with properly.

The provisions will allow animals in those situations that have been taken into possession to be dealt with swiftly and efficiently to benefit their welfare. I hope that they will also allow a smoother process, so that local enforcement authorities can use the powers in the 2006 act—which were a major improvement at the time, allowing animals to be taken into possession to prevent future suffering—effectively, as was originally anticipated.

Finlay Carson

Where is such a decision taken? For example, if a member of the public reports what they see as a potential animal welfare issue, at what level is the decision taken to seize puppies or dairy cows, for example, and process them quickly? In the case of puppies, it may be that they should be rehomed within six weeks. Where does the burden of that decision fall? Once there are been a court case, is compensation considered if no prosecution is delivered?

Andrew Voas

Currently, enforcement regarding puppies and companion animals is largely done by the Scottish SPCA, which takes the animals into possession to protect their welfare. It has that power under the existing 2006 act provisions if it considers that the animals are suffering or are likely to suffer in future and it can get a vet to certify that.

Local authorities tend to take on cases involving farm animals. They reach a point when they decide that the appropriate way to deal with a case is to take possession of the animals; they usually take them away from the farm to be cared for somewhere else. The decision to take animals away is up to the enforcement authority, which will be the local authority or the Scottish SPCA.

You asked about compensation. Under the current arrangements, animals—it is usually farm animals—can be sold on and the proceeds will belong to their owner. The enforcement authority can deduct reasonable expenses from the value. Because we are seeking a swifter resolution under the new arrangements, the owner can be compensated, with the important proviso that the compensation can be deferred if there is a related on-going criminal case. Ultimately, a court will be able to order that compensation is not paid to the owner, if it thinks that that is appropriate after due process and a conviction—that is an important safeguard.

The Convener

We move on to questions about attacks on service animals.

Angus MacDonald

I want to look at the Scottish Finn’s law provisions of the bill. The Scottish Government has told the committee that attacks on service animals are more likely to be prosecuted as malicious mischief or vandalism than they are to be prosecuted under the Animal Health and Welfare (Scotland) Act 2006, which the bill will amend in order to strengthen the provisions in respect of such attacks. Why is that? Why are the amendments to the 2006 act considered to be needed?

Andrew Voas

How offences are dealt with are primarily matters for the police and the Crown Office and Procurator Fiscal Service. We have discussed the issue with the police. My understanding is that, in the past, some attacks have been dealt with as part of wider public order offences, such as breach of the peace, and assaults on police officers. In those situations, the police and COPFS have considered the overall pattern of behaviour when deciding what the appropriate offence has been.

The change that we are trying to introduce—it is known as Finn’s law, as you said—is to make it easier for offences that involve causing unnecessary suffering to police animals to be prosecuted under the 2006 act. That would require courts to disregard whether an action was committed for the purpose of defending the offender, another person or another animal. Currently, courts are required to have regard to that in deciding whether suffering was unnecessary. When we make the changes, courts will be required to disregard the fact that an action was committed to defend a person or a property in relation to attacks on service animals—that is police dogs or police horses. That should make it easier for such attacks to be successfully prosecuted under the 2006 act.

The proposal recognises the fact that service animals should be regarded as sentient and capable of suffering in their own right, rather than as police property or something that can be vandalised. That is the principle behind the provision.

Mark Ruskell

We are talking about service animals. Will there be a wider applicability to Finn’s law? What if, for example, someone beat a racing greyhound at a track and, in their defence, said, “I was trying to ensure that this greyhound wasn’t going to attack another animal or damage the property of another person”? I am trying to get it clear in my mind why the provision applies to service animals but not to other working animals.

Andrew Voas

It is for practical purposes. We have to remember that police service animals are put in positions in which they are trying to apprehend individuals or maybe control the movement of crowds. They are particularly vulnerable to incidents in which someone attacks them and, potentially, argues that they did so to defend other individuals. Those are the circumstances in which the possibility of talking about the use of self-defence in relation to police dogs and horses might arise.

Mark Ruskell

Do you not see racing greyhounds as being in a similar position? They can be in a very vulnerable position and can be attacked by handlers.

Andrew Voas

It would be harder for a handler to say that they were beating a greyhound in order to defend themselves, because a greyhound is obviously not being used to control the handler or in a way that poses the handler any danger. The provision is really about the practicalities of how the arguments about whether the action was committed in self-defence would arise.

The Convener

We move on to the Poustie review recommendations.

Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

The Poustie review recommendations were broadly accepted by the Government at the time of its publication. I am interested in the impact statements.

The Government, after conversations with COPFS and Police Scotland, accepted that the current system works, and that, where the conservation, ecological and animal welfare impact statements are requested, they work well.

It is therefore considered unnecessary to legislate further. Was it the reassurance from Police Scotland and the Crown Office and Procurator Fiscal Service that led the Government not to accept the Poustie review recommendations in that regard?

Leia Fitzgerald

We spoke to stakeholders, who confirmed that they use statements where they feel that that is necessary and helpful. They already have the power to do that, so there is no need to put the matter on a statutory basis. That would be legislating just for the sake of it, because those statements are already being used. There are circumstances in which an impact statement might not be required or helpful, so we do not want to create an unnecessary burden to produce a statement if it is decided that one is not required in a specific case.

Rachael Hamilton

Are you saying that the statements are not requested as a matter of course?

Leia Fitzgerald

A decision is made in individual cases as to whether an impact statement is required. That is how the process works at the moment. Stakeholders feel that it is working well and that they have sufficient ability to use the statements when needed.

Rachael Hamilton

Poustie also recommended that forfeiture penalties should be extended and made consistent across wildlife legislation. What forfeiture and other alternative penalties were considered as part of the background to the bill and why were those alternatives dismissed?

Leia Fitzgerald

Forfeiture penalties are already available under existing legislation, including the proceeds of crime legislation. We are considering the possibility of introducing fixed-penalty notices as an alternative form of penalty. We have already had discussions with stakeholders on that and we intend to consult on it. That is one of the alternative provisions that we are considering.

Rachael Hamilton

Sorry, but can you repeat that last bit?

Leia Fitzgerald

In terms of alternative provisions, we are looking at fixed-penalty notices, as have been looked at for animal welfare and health offences.

Rachael Hamilton

Just to be clear, why were the alternatives that were recommended dismissed?

Leia Fitzgerald

Fixed-penalty notices are one of the alternatives that we are looking at.

Rachael Hamilton

My next question is about firearms legislation, which is reserved to the United Kingdom Government. What discussions is the Scottish Government having with the UK Government with regard to the recommendation that there should be a power to withdraw shotgun certificates in wildlife crime cases? What plans do you know of to amend the existing UK legislation?

Leia Fitzgerald

I am not aware of any such plans at the moment. We have spoken to our justice colleagues, who lead on firearms legislation. The Scottish Government would like amendments in a number of areas relating to firearms, and not just wildlife crime. Justice colleagues have regular discussions with the Home Office about that. As far as we are aware, the Home Office has no plans to introduce new legislation, but we will certainly continue to have those discussions with justice colleagues and, if an opportunity presents itself, we will consider that.

Rachael Hamilton

Mark Ruskell touched on a preventative strategy for wildlife crime. The Poustie review recommended that empathy training be given. Do you have any comment on awareness courses, which might be a bit like rehabilitation courses for people who have committed speeding or other driving offences? Those could be brought in as part of a preventative strategy for wildlife crimes.

Leia Fitzgerald

There are powers already, but no specific courses of that kind are being run or developed in Scotland. If the court was to make that provision, there would need to be a suitable course. However, as Andrew Voas said, thankfully, the number of cases is quite low. There are practicalities about having suitably qualified people to deliver the courses and having sufficient numbers of people on them. We have not ruled that out, but there is no obvious course available at the moment that we could use. If such a course were to be developed by stakeholders or others, we would certainly look at it to see whether it was appropriate.

The Convener

Mark Ruskell has some questions on vicarious liability.

Mark Ruskell

I understand that only two vicarious liability restrictions have been put in place in the past seven years. There are questions about whether the current extent of the use of vicarious liability is effective in tackling wildlife crime. What representations have you had on the topic in relation to the bill? What consideration have you given to extending vicarious liability in the bill?

Leia Fitzgerald

We have not had any specific recommendations about extending vicarious liability. We know from speaking to the police and the prosecution service that it is something that they will always consider and, if they deem it appropriate and there is sufficient evidence, they will seek to bring charges.

In his review of the Protection of Wild Mammals (Scotland) Act 2002, Lord Bonomy recommended introducing vicarious liability for offences relating to hunting with dogs. We are looking at that and, when we introduce proposed legislation on fox hunting, we will consider whether it would be appropriate to implement that recommendation.

Mark Ruskell

Okay, but you have no plans to extend vicarious liability in the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill.

Leia Fitzgerald

The bill is about increasing the penalties for existing wildlife offences; it does not seek to create any new wildlife offences.

Claudia Beamish

I seek clarification whether, when it is alleged that a crime has been committed but no one has been directly prosecuted for it, it would still be possible for there to be a vicarious liability prosecution. Would court action be considered even in the absence of the perpetrator being convicted? It would be helpful to have that clarified, because there is concern about that issue, which, to a degree, relates to the bill.

Leia Fitzgerald

In order for a charge of vicarious liability to be brought, it is not necessary for somebody to have been convicted of the underlying offence. Often, a charge of vicarious liability will be brought when somebody has been convicted of the underlying offence, but it can still be considered if someone has not been convicted. However, the Crown would have to be content that there was sufficient evidence that it could bring such a charge.

The Convener

Claudia, would you like to ask your questions about evidence gathering?

Claudia Beamish

Yes—I want to turn to wildlife crime investigations and video surveillance. Given the nature of wildlife crime—it has already been highlighted that it is committed in remote areas, that the weather can affect the gathering of evidence and that evidence can be removed—the likelihood of perpetrators being apprehended is clearly an important factor in the context of the bill, as is the deterrent effect of sentencing. How will the bill impact the ability of authorities to investigate and gather evidence of serious wildlife crime?

Leia Fitzgerald

One of the things that the bill is doing is increasing the time limit for prosecutions to be brought. We have spoken to the police, the Crown and stakeholders, and they have all said that there have been cases that they have not been able to pursue because of the time limit, for the reasons that you alluded to. In addition, quite a lot of complex forensic testing sometimes needs to be undertaken. Stakeholders feel that the proposed increase in the time limit will be helpful, because it will give them more time to investigate. As I said, the police, the Crown and stakeholders were all able to give examples of cases that had fallen under the time bar, whereas if the time bar had been longer, they might very well have been able to bring a charge.

Claudia Beamish

That was helpful.

As you will know, the committee has heard previously that video surveillance could be important in gathering evidence and thereby enabling the prosecution of wildlife crime. However, there has been some debate about the admissibility of such evidence in court. Will the bill shift the debate in this area? Do you think that it is more likely that evidence that is gathered through video surveillance will be admissible as a result of wildlife crime being treated as serious crime?

Leia Fitzgerald

The increase in the penalties will mean that there will be opportunities for police-sanctioned surveillance, providing that it is considered that that would be appropriate and all the requirements for carrying out that surveillance are undertaken. That will help in that regard.

On the issue of evidence that has been gathered from third parties, the bill seeks to make no changes to the processes or procedures under which wildlife crime is investigated or prosecuted. At the moment, the rules governing the admissibility of evidence are not specific to wildlife crime, the use of closed-circuit television or video evidence. The Crown is able to consider such evidence and it will do so. However, it has to make decisions on a case-by-case basis about whether a piece of evidence is admissible. There will be various reasons that are considered in that regard, some of which will be legal reasons.

Claudia Beamish

That is helpful. Particularly with regard to third parties, has article 1 protocol 1 of the European convention on human rights, which concerns private property, been considered in relation to future developments? I am thinking about the issue in view of where we started with regard to the remoteness issue and the importance of recognising that wildlife crime is now being said to be a serious crime.

Leia Fitzgerald

It is not being looked at in relation to the bill, as the bill is concerned with the penalties rather than those wider areas. As I said, a decision would have to be made about whether video evidence could be used—that will continue to be the case. There have been cases where it has been deemed to be admissible.

The Convener

Just to clarify, am I correct in thinking that the legal issues around the use of video evidence relate to any crime and are not specific to wildlife crime? That is, there is a threshold that has to be met in order for the police to embark on any kind of video surveillance of a situation. Is that correct?

Leia Fitzgerald

There are rules governing when police surveillance can be used and there are, obviously, operational decisions that Police Scotland has to make. There are rules governing the admissibility of any kind of evidence. In May 2017, Sarah Shaw wrote to the committee with information that covered all the rules around what the Crown takes into consideration when determining whether evidence is admissible.

Finlay Carson

The bill includes the ability to increase sentences and make unlimited fines. Will that increase the possibility of video evidence being used in a case?

Leia Fitzgerald

No. The police have certain criteria under which they can authorise surveillance. Increasing the maximum penalties that are available for some of the crimes might make them fall under some of the categories in those criteria, but there would still be case-by-case decisions for the police to make about whether, based on all the criteria, it would be appropriate to authorise surveillance.

There will be no impact on the use of video evidence from third parties. It will still be for the Crown to determine whether that can be used, under the current rules and regulations.

Finlay Carson

But, potentially, the police will have more scope to consider using video evidence, because the limits involve whether something is a serious crime, a crime that might result in a sentence of three years or more and so on.

Leia Fitzgerald

Yes.

The Convener

I will conclude the questioning by asking about the Werritty review. It was expected to report in the summer, but it did not. Do you have any idea when it might report?

Leia Fitzgerald

The review was delayed for reasons that were outwith the control of the review group. It is an independent review. We do not have a definite date, but we have been advised that the group hopes to present a report to Government shortly.

The Convener

Thank you very much. I thank everyone for their time this morning.

The Presiding Officer (Ken Macintosh)

The next item of business is a stage 1 debate on motion S5M-21200, in the name of Mairi Gougeon, on the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill.

The Minister for Rural Affairs and the Natural Environment (Mairi Gougeon)

I am delighted to present the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill to the chamber and to introduce these important proposals for the stage 1 parliamentary debate.

If the bill is passed, it will modernise and strengthen the implementation of existing legislation impacting on animal welfare, assisting enforcement authorities to ensure that Scotland’s domestic animals and wildlife benefit from the best possible protection.

Bearing in mind the increasingly busy parliamentary schedule, the bill is tightly focused to deliver the changes that are most sought after by front-line enforcement staff and that require amendments to existing primary legislation. The aim is that the changes will come into force this year.

The bill addresses specific priorities, many of which have been highlighted during discussions as part of the close working relationship between officials and key stakeholders—particularly those with practical experience of working with the existing legislation, who recognise that the proposals will make significant improvements to the protection of our animals. Those include Police Scotland, the Scottish SPCA, local authorities and the Animal and Plant Health Agency. All the priorities in the bill received strong support from respondents to the Scottish Government’s consultation.

In short, the bill increases the maximum available penalties for animal cruelty and wildlife crime and removes the six-month time bar for many offences; it introduces a new power to put in place fixed-penalty notice regimes; it improves the procedures for rehoming and makes other arrangements for animals that have been taken into possession by enforcement authorities to protect their welfare; and it improves protections for police dogs and horses by introducing Finn’s law in Scotland, recognising their indispensable role in our society.

Thankfully, the most extreme animal cruelty and animal fighting offences in Scotland, which result in a custodial sentence, are rare. There have been 41 custodial sentences in the past 10 years, and there have been only three custodial sentences longer than 300 days in that time. However, although the most extreme cases are rare, as a society and as a Government, we need to send the strong message that any animal cruelty or wildlife crime shall not be tolerated. I hope that the publicity around the bill will start the necessary behaviour changes to banish that cruelty from our society.

These often traumatic and sadistic offences rightly attract considerable public concern. We are also concerned about links to serious organised crime in some other cases, particularly those to do with the illegal trade in puppies.

We consider—and others agree—that the current maximum penalties are simply not high enough to allow the courts to deal appropriately with such cases.

The bill will also standardise wildlife crime penalties and bring the penalties for 22 of the most serious offences, which involve the illegal killing or injuring of wild birds and animals, into line with the new maximum penalties for animal welfare offences. That recognises that wild animals should be given protection equivalent to that which is given to domestic and farm animals from the worst types of deliberate harm.

Emma Harper (South Scotland) (SNP)

I welcome the bill and the Scottish Government’s action to give enhanced protection from harm to animals and wildlife.

The minister mentioned farm animals. Does she share my concern that incidents of livestock worrying are on the increase in Scotland? She will be aware of my proposed protection of livestock (Scotland) bill. Will she agree to meet me to discuss the bill? We are almost at stage 1.

Mairi Gougeon

I thank Emma Harper for her intervention and congratulate her on all the work that she has done on tackling that important issue. I am happy to commit to meeting her to discuss the matter further. It is a vital issue, and it is important that we work together to make sure that we are successful in addressing it.

The penalties for 36 other offences, including those that deal with the disturbance of wild animals and their habitats, will be standardised and increased in line with the recommendations of the Poustie report.

An issue that is related to the higher maximum penalties is the availability of trial by indictment, which will directly benefit enforcement agencies such as Police Scotland, the Scottish SPCA and local authorities, as well as the Crown Office and Procurator Fiscal Service, by removing the current statutory six-month time limit for commencing criminal proceedings. That will give authorities additional time to gather all the appropriate evidence and to draft complete and considered reports on increasingly complicated cases that often involve serious organised crime elements.

One of the aims of the bill is to emphasise that animal cruelty and wildlife crime will not be tolerated in Scotland, so it will provide courts with the flexibility that is needed to impose sentences that are appropriate for a wide range of offending behaviour. The new maximum penalties will allow courts the flexibility to issue the most appropriate sentence for the worst cases, while the introduction of a new power to develop new fixed-penalty notices will provide an additional enforcement tool for more technical offences.

The bill will also introduce overarching powers that will allow the future introduction of fixed-penalty notice regimes through regulations for animal health and welfare and wildlife crime offences, which will enable bespoke FPN regimes to be designed to deal with a wide range of offences in a proportionate and timely manner. For example, FPNs could be used to deal more effectively with breaches of movement restrictions during an animal disease outbreak or failure to comply with movement and traceability regulations. Although those technical breaches might not impact negatively on individual animals, they can be detrimental to the health and welfare of wider animal populations. It is important to deal with all breaches of our animal regulations effectively in order to improve compliance overall, and I hope that the proposed focused changes to the penalty regime will lead to behaviour change across our communities, reflecting the public concern for animals in Scotland.

The bill also proposes a new and innovative approach to dealing with animals that have been taken into possession in emergency situations to protect their welfare. The new process will allow enforcement authorities to make appropriate permanent arrangements for such animals without the need to apply for a court order. That streamlined process, which is independent of any potential prosecution, will result in significant savings in staff time and resources for all parties, including the courts, and it should speed up the process of resolving often traumatic animal welfare situations.

We know that the neglect and subsequent suffering of animals is often a symptom of another problem, such as financial difficulties, bereavement, mental health issues or other illness. Enforcement authorities are acutely aware of that, and there are already processes in place for referrals to other agencies such as social work, where that is required. The new powers have been specifically designed to balance the property rights of the individual with the need to protect the welfare of animals. The bill recognises that, although animals have a legal status as someone’s property and the owner, too, might be suffering, those animals are sentient beings whose welfare needs must be met.

As the new robust and streamlined process will be implemented by enforcement authorities without any need to go to court, the necessary safeguards to protect human rights have been provided for at the same time as a focus on the welfare of the animals.

I am proud that the bill introduces Finn’s law in Scotland. I have met Finn and his handler, Dave, as well as colleagues in Police Scotland, and I have heard at first hand about the importance of the role of police dogs and horses. I have been touched by Police Scotland’s support for the proposals, which are, along with other elements of the bill, simply the right thing to do. They also keep pace with action that is being taken by other United Kingdom Administrations.

The bill will provide police animals with the same level of protection as other animals that are not routinely used in situations in which attackers could claim to have been acting to defend themselves. The provision will exist alongside the increase in the maximum penalties that are available for crimes against all animals, meaning that all of Scotland’s animals, be they guide dogs, police dogs or police horses, will benefit equally from the bill.

The bill is being delivered alongside a number of other initiatives to improve the welfare of our animals and wildlife that do not require changes to primary legislation. In relation to animal welfare, they include the creation of a modern and flexible licensing framework for pet breeding, animal sanctuaries, rehoming activities and pet sales—proposals that we will bring forward later this year.

Mark Ruskell (Mid Scotland and Fife) (Green)

Will the Government introduce regulations on performance animals in the current session of Parliament?

Mairi Gougeon

I will look at that specific issue and will get back to the member on it.

We also intend the new regulations to give effect to Lucy’s law—a measure to prevent the third-party sale of cats and dogs under six months old as pets—as well as addressing the proposals that Jeremy Balfour has made on modernising the licensing of pet shop sales. The overall aim is to regulate to protect animal welfare in a way that is not unduly burdensome for those who are doing a good job, while being effective in dealing with cases in which welfare is not being sufficiently protected.

Officials are also working to introduce compulsory closed circuit television in abattoirs, and they are undertaking reviews of the use of electronic training collars for dogs as well as gathering evidence on the incidence of dog attacks on livestock. We look forward to Emma Harper’s member’s bill on that subject being introduced in the near future.

On the illegal trade in puppies, we delivered two very successful public awareness campaigns in 2018 and 2019 to encourage responsible dog ownership and help to alert pet buyers to the dangers of buying from illegal puppy dealers posing as home breeders.

Regarding wildlife, we are working on responses to the recommendations that were made by both the grouse moor review group and the deer management review group. We will publish a strategic approach to wildlife management that puts animal welfare at the centre while protecting public health and economic and conservation considerations.

We have established Scotland’s first animal welfare commission, which comprises 12 experts from different disciplines in the field of animal welfare and is chaired by Professor Cathy Dwyer of Scotland’s Rural College and the University of Edinburgh. The commission, which will have its first meeting this month, will provide an independent expert forum to consider how the welfare needs of sentient animals are being met, examine the possible legislative and non-legislative routes to further protect their welfare and identify any research that is required for an evidence base for future policy development. I am confident that that new advisory body will have a real impact in prioritising the action that is required to tackle the wide range of issues regarding all sentient animals in Scotland.

I hope that members appreciate that that package of complementary measures, together with the provisions in the bill, will address a wide range of stakeholder concerns about Scotland’s animals.

There is widespread and strong support for the proposals in the bill, particularly among those with practical involvement in the current legislation, including veterinary staff and the police. I am honoured to be responsible for introducing the refinements that are proposed in the bill, which will make an immediate impact in assisting with enforcement and further protect Scotland’s animals.

I look forward to this afternoon’s debate and to working with parliamentary colleagues to ensure that the important improvements in the bill can be introduced as quickly as possible, without unnecessary delay.

I am proud to move,

That the Parliament agrees to the general principles of the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill.

The Presiding Officer

I invite Gillian Martin to speak on behalf of the Environment, Climate Change and Land Reform Committee.

Gillian Martin (Aberdeenshire East) (SNP)

On behalf of my colleagues on the Environment, Climate Change and Land Reform Committee, I open by saying that we welcome the bill and support its aim to increase the penalties for crimes of animal harm. We took evidence from many experienced and expert stakeholders, and we published our report in February. I thank the minister for her recent letter to the committee, and for early notice of the matters on which she intends to lodge amendments at stage 2.

The committee particularly welcomes the establishment of the animal welfare commission. We were encouraged to see its very experienced members being announced recently, and we look forward to working with them.

I turn to the bill and the committee’s consideration of it. It has been said that

“The greatness of a nation and its moral progress can be judged by the way its animals are treated.”

I certainly agree with that sentiment, and I know that my committee colleagues feel as strongly as I do about it. Disregarding the health and welfare of animals can make it easier for us to disregard the health and welfare of our fellow humans. It can limit our capacity for empathy, and there are often links between animal abuse and other crimes.

It is right that the Government is seeking to increase penalties in line with the grave nature of many of the crimes that are committed against animals, and to give the courts greater flexibility to penalise appropriately. We welcome the proposals to increase the maximum sentences for the most serious offences, and to introduce fixed penalty notices that would allow a sanction short of prosecution.

Given this nation’s affection for animals, it is surprising that we currently have among the lowest penalties in Europe for animal welfare and cruelty offences: a sentence of 12 months for the worst act of animal cruelty compares badly with sentences of five years for crimes such as fly tipping or theft. Many of us here will have seen distressing animal cruelty crimes that warrant much harsher penalties and giving the courts greater flexibility to impose sentences that are more in line with the amount of serious harm that has been done. That view is reflected in public opinion.

As I said, animal cruelty is often a flag for other offences; there is a substantial body of evidence that says that animal cruelty offenders also commit other crimes, including domestic abuse and other violent offences.

Much animal cruelty is about individuals or groups wanting to make money from the sale of animals. Stakeholders expressed concerns about organised crime including illegal puppy farming and dog fighting, in which offenders are often driven by profit and for which current penalties do not provide a sufficient deterrent.

It is also important to say that the committee heard that not all cases of animal suffering are caused by deliberate cruelty. Neglect of animals can happen for various reasons, including an owner being unable to cope because of physical or mental illness. We welcome the flexibility in relation to fixed-penalty notices and appeals procedures to reflect that, so that we do not unnecessarily criminalise people who are in complex situations that might require the involvement of social services and animal welfare services.

The committee understands that there are tiers of penalties for wildlife crimes, which brings me on to one of our key recommendations, which we believe will strengthen the bill and make an even bigger impact on wild animal welfare. We heard evidence about the effects of destruction of habitats. Destroying an animal’s habitat can be as fatal as directly harming or killing an animal. For example, the destruction of badger setts could lead to the destruction of a colony and the deaths of some or all of the animals, particularly during breeding. We believe that wilful destruction of a habitat is as much abuse of an animal as direct abuse is.

The committee is therefore recommending that the Scottish Government reconsider its approach in order to ensure that enhanced protections are extended to resting places and breeding sites, so that sentencing can reflect crimes having equivalent outcomes in terms of harm to the animal. We believe that such an extension will act as a deterrent to the wilful destruction of animal habitats and will strengthen the bill.

I note the minister’s recent assurances in her letter that the penalties in the bill that apply to different types of offences are coherent, proportionate and appropriate, and that they fit the circumstances of each individual case. I invite the minister, in summing up the debate, to reflect further on the committee’s recommendation about habitats. We took strong evidence on that from a range of expert stakeholders.

I want to talk about the proposal for regulations to be made to create a fixed-penalty notice regime. The committee has already flagged up that it is seeking assurances that FPNs will not be used when the severity of the crime is such that prosecution would be the more appropriate action, and we welcome the update from the Scottish Government on the timing of the outcomes of the consultation on FPNs for animal health offences. I note that the minister will seek to amend the bill at stage 2 to allow fixed-penalty notice regulations, and we look forward to receiving more information about the nature and detail of those ahead of stage 2.

I also note the minister’s intention to consider whether it is appropriate to lodge a stage 2 amendment to introduce a power in the bill for Scottish ministers to make provision in future regulations for use of fixed-penalty notice regimes for certain wildlife offences, and we will consider that if we are presented with such an amendment.

The committee made a strong recommendation on impact statements in our report. When we were considering wildlife crime, we heard from experts that impact statements are very helpful for coming to conclusions on the penalty that is required. In the report, we mention our support for the recommendation of the Poustie review to put impact statements on a legislative footing. Stakeholders told the committee that sheriffs and procurators fiscal having impact statements available to them before sentencing is extremely helpful because they provide background information. The committee was convinced that that was an important point and has therefore recommended that it be required by law that impact statements be made available to the court for offences of this nature.

We note the minister’s recent comment that the current system is “working well”. However, the committee has asked

“the Scottish Government why it considers putting impact statements on a legislative footing, as recommended by Professor Poustie, is unnecessary.”

Perhaps the minister can answer that question in her closing statement.

I will move on to what the committee believes to be one of the most significant procedural changes that is presented by the bill. The bill proposes a power to rehome or sell off animals without first obtaining a court order. The committee heard compelling evidence to support the introduction of such a power and is fully supportive of the change. The move will protect the welfare of affected animals by allowing domestic animals to be rehomed quickly, rather than being in limbo in kennels, and by allowing livestock to be quickly sold to new owners. The proposal also means that animal charities or local authorities will not have to provide resources for and bear the enormous cost of caring for animals long term. The committee is supportive of that change, which we consider to be an important step forward in animal welfare.

We also heard about the need to provide additional protection for service animals by way of a Scottish Finn’s law. Thankfully, there have been very few attacks on service animals in Scotland, but it is only right that animals that work to keep us safe should be given the fullest possible protection in return, so the committee fully supports the additional protections in the bill.

I will end by discussing the importance of information sharing. The committee heard that there is no centralised registration system for current penalties such as disqualification orders. We believe that there is a need for relevant agencies to share information on criminal animal cruelty. The committee welcomes the recent confirmation from the minister that Police Scotland is currently discussing a joint working protocol with the Scottish SPCA, and would welcome further information on that collaboration.

I thank the many expert stakeholders who gave such compelling and important evidence, which we hope will strengthen an already very strong bill that will act as a deterrent to people who wish to cause harm to animals. On behalf of all the committee’s members, I thank the committee clerks for all their hard work and assistance.

The committee recognises that the bill is not the end of the work that we have to do to protect Scotland’s animals and its wildlife. However, it is a very positive step, and some elements of it have been described as “groundbreaking”. The committee is therefore pleased to support the general principles of the bill.

Finlay Carson (Galloway and West Dumfries) (Con)

I am pleased to lead the debate for the Scottish Conservatives, given that I am a member of the Environment, Climate Change and Land Reform Committee, which is overseeing the bill.

The Scottish Conservatives are supportive of the general principles of the bill. Indeed, three years ago, I had preliminary talks with officials about whether there was an opportunity to address many of the shortcomings that the bill will now address, including: increasing penalties for animal and wildlife crime; introducing new fixed-penalty notices; extending the time allowed for prosecution; giving more powers to authorities when animals are taken into possession to alleviate their suffering; and the very welcome move of increasing the protection of service animals through our own Scottish Finn’s law, which my colleague Liam Kerr has championed.

Liam Kerr (North East Scotland) (Con)

As the member said, that is an excellent provision, which follows a huge campaign led by PC Wardell and so many others, with more than 56,000 signatures on my petition. However, this is only stage 1 of the bill. Principle and execution are not the same thing and it is crucial that the principles of Finn’s law are fully enshrined in statute through precise amendments.

Therefore, does the member agree that service animals must be given proper protection, to reflect the respect that we have for them, that attackers must be punished appropriately and that we must all work at stage 2 to make sure that the execution matches the principle?

Finlay Carson

I thank the member for that intervention. I agree, and we look forward to stage 2, when we will make sure that the bill fulfils everybody’s expectations of protecting service dogs.

We must also make it clear that, rightly or wrongly, the bill does not cover many outstanding issues: for example, issues related to the recent Bonomy review, dog control and the licensing of animal breeding, pet sales and animal sanctuaries. We should have undertaken a review of the entire Animal Health and Welfare (Scotland) Act 2006 to include some of those issues, but we are where we are.

Although the bill strengthens sentencing for animal cruelty offences and tackles the subject of animal welfare, I refer members to the contribution that I made at the Public Audit and Post-legislative Scrutiny Committee at this time last year, on the review of the Control of Dogs (Scotland) Act 2010, which was introduced a decade ago. I put forward the case that a host of members’ bills relate to the subject of animals and there is still the potential for all those separate pieces of legislation to become complicated, particularly in how they interact. Rather than there being a lengthy process for multiple members’ bills, the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill could have gone further and been an overarching piece of legislation on animal cruelty.

It is 14 years since this Parliament passed the previous major piece of legislation on animal welfare and cruelty in 2006. This bill is long overdue, and we need to introduce new penalties for those who continue to cause pain and suffering to animals and wildlife. That is backed up by the fact that 99.4 per cent of respondents to the consultation agreed with the proposals to introduce tougher sentencing.

However, it is important to note that the legislation before us does not create any new offences. The overarching positive of the new legislation is that it allows greater flexibility in punishing offenders, whether that is through lengthier jail sentences or unlimited fines. The fact that the current legislation allows for maximum punishments of only 12 months has done little to deter or adequately punish the offenders who carry out these crimes.

Battersea Dogs and Cats Home’s welcome briefing ahead of today’s debate highlights that, between 2011 and 2016, 522 people were convicted of animal cruelty offences, yet only 45 per cent of those convicted received sentences of more than six months.

The committee raised the issue of sentencing guidelines for wildlife crime. Battersea and the Law Society of Scotland point out that, following the passing of this legislation, it would be helpful if the sentencing guidelines were also updated. That would strengthen our courts systems and enable them to have a uniform approach when it comes to dealing with animal welfare and wildlife crimes.

The Law Society also pointed out that sentencing for wildlife crimes can be different from other crimes when it comes to assessing culpability, harm and other public policy guidelines; again, that strengthens the need to update sentencing guidelines. We need clarity on the way that certain wildlife crimes are viewed. As Gillian Martin mentioned, the likes of destroying a single badger sett needs to be considered in light of the long-term impact on the colony.

The independent Scottish Sentencing Council—and rightly, not politicians—has the responsibility for developing sentencing guidelines but, during the progression of the bill, we welcome further discussions with the Scottish Government on what would be the best way to update those guidelines.

The Scottish Conservatives are also supportive of the principle of fixed-penalty notices, which are outlined in the bill as a further deterrent. As the ECCLR Committee noted, that would give authorities a greater degree of flexibility in determining proportionate penalties. However, those notices should be delivered only for minor and technical offences where no harm has come to animals. I would welcome a commitment from the minister to bring more clarity around the notices and details of the stage 2 amendments that she intends to introduce.

The Scottish Government’s consultation on fixed-penalty notices received a positive response; 61.4 per cent of respondents agreed that they should be brought in, and the 32 local authorities were in unanimous agreement. However, we need to ensure that people face the consequences of their criminality, and I would like the Government to reflect on how many of these notices it estimates will be served and how many will, potentially, go unpaid.

On notices, I would like to raise concerns about how the information will be held and shared between relevant authorities. Currently, there is no one central register in which to hold the information, and the committee recognises that there needs to be more joined-up thinking when it comes to intelligence sharing. That information sharing would help to track patterns of animal abuse. As a member for a rural constituency—Galloway and West Dumfries—it is clear to me that animal welfare and wildlife crimes are linked to other crimes, including domestic abuse and other criminal activity. That strengthens the need for sophisticated intelligence gathering.

I agree with Battersea’s position on the issue. Information on convictions, sentences, disqualifications and so on should be held in a database and shared with the relevant authorities. We will seek to strengthen the bill with amendments at stage 2 to give clarity and reassurance around who is party to that sensitive information. Having access to information in order to identify convicted offenders is a vital part of the bill, but it must be done in the right way.

Although there has been some increase in police resources, I still have concerns because in order to ensure that the increased penalties act as a deterrent, we must also ensure that the chances of being caught and convicted are increased. We can do that by giving more resources and support to wildlife crime officers to catch those offenders. I am open to the SSPCA’s suggestion that a taskforce should be set up to review the extension of wildlife powers and overall enforcement when it comes to tackling wildlife crime in Scotland. I would also welcome further discussions with the Scottish Government in order to increase the resources that are available to those who support the tackling of wildlife crime.

In England and Wales, we have already seen the welcome introduction of Finn’s law to protect police dogs and horses who serve alongside our officers. As we heard earlier, my colleague Liam Kerr has done a tremendous amount of work to ensure that that law will be extended to Scotland by its becoming part of the bill. I pay tribute to his efforts alongside those of many other campaigning groups and individuals, such as PC Dave Wardell.

The bill is long overdue. It will ensure that those who continue to commit painful and cruel crimes against animals know that they will be dealt with by the full force of the law. It is welcome to see the Scottish Government deliver on its commitment to that, ensuring that all parts of the United Kingdom have legislation that cracks down on wildlife crime. Although there is scope to bring forward amendments to the bill at stage 2, in principle, the Scottish Conservatives welcome the legislation.

Claudia Beamish (South Scotland) (Lab)

Scottish Labour robustly welcomes heavier sentences—of up to five years in prison and unlimited fines—for serious animal and wildlife crimes. We are supportive of all the recommendations of the ECCLR Committee, of which I am a member. I note for the record that its report was agreed unanimously. We agree with the general principles of the bill, and Scottish Labour recognises animal sentience.

As our convener, Gillian Martin, highlighted, there is strong public interest in ensuring the protection of animals and wildlife. I thank the minister for her response to the committee’s recommendations, which was received in reasonable time to consider—which was most welcome.

Although we recognise the complexities of some of the issues, my colleague Colin Smyth and I will today highlight parts of the bill on which it is our view that the Scottish Government’s response is somewhat disappointing.

As our convener has already outlined, in relation to the destruction of habitats:

“The Committee recommends that the Scottish Government reconsiders its approach to ensure enhanced protections are extended to resting places and breeding sites therefore sentencing can reflect where crimes in effect have equivalent outcomes i.e. in terms of harm to the animal.”

In that respect, the minister’s response is disappointing in relation to badger setts and other habitats, and I would ask her to reconsider it before stage 2. As I understand it, that relates to the law—to legislation—and not to sentencing guidelines. The use of illegal pesticides also does not seem to carry a sentence, although it is likely that would act as a deterrent. The minister’s response to the committee on that is also disappointing.

My colleague Colin Smyth will cover other offences that we agree should be considered as serious crimes.

In January, I attended a meeting organised by Fisheries Management Scotland and Scottish Land & Estates at which there was wide recognition that Atlantic salmon are reaching crisis point and that salmon conservation should become a national priority. Fisheries Management Scotland has indicated its concern that some of the offences in the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 are not included in the bill, despite fish crime being included in the wildlife crime penalties review group, which was led by Professor Poustie and which reported in November 2015. I ask the minister to confirm what action the Scottish Government intends to take to ensure that our iconic salmon and freshwater fish are better protected and that penalties are commensurate with the potential for damage to those species and to the habitats on which they depend.

Sadly, there have been few prosecutions and convictions for vicarious liability. Some would argue that the introduction of vicarious liability has raised awareness of owner responsibility higher up the agendas of owners. However, the committee has called for

“increased transparency around Crown Office decision-making”,

which in our view is in the public interest. In response to our recommendation that

“the Committee would welcome the concept of vicarious liability being extended to further wildlife offences”,

the minister is interested in hearing what other crimes could be considered. I welcome that, and I therefore ask that the crimes listed could be the same as those that any alleged perpetrator has committed, on the basis of evidence.

I turn to the detection of wildlife crime. The committee argued that we should

“enhance detection and prosecution by expanding the powers of the SSPCA ... as an approach to better resourcing wildlife crime enforcement.”

We are all keenly aware that such crimes happen in remote and hard-to-reach areas of the country and we know only too well that resources are stretched. The combination of poor weather and delayed forensic examination at potential crime sites can compromise prosecution. The Scottish Government argues that the bill should not be delayed to enable further consultation on the extension of those powers.

I recognise that there are complex issues to clarify, but I understand that the SSPCA is working with ministers, officials and Police Scotland to find a suitable solution away from the bill. As Finlay Carson highlighted, the SSPCA has said:

“Now is the right time to establish a taskforce to review enforcement when it comes to tackling wildlife crime in Scotland and allow for the potential of extension of wildlife powers to be discussed in more detail. We believe this group could be established within the next three months.”

The issue was live in the previous session of Parliament, and Scottish Labour asks for a resolution in the current one.

Colin Smyth (South Scotland) (Lab)

On the issue of enforcement, the bill proposes allowing animals to be rehomed without a court order, but does Claudia Beamish agree that one positive measure that a number of animal welfare charities are proposing is that there should be a time limit for dealing with appeals so that animals are not held for protracted periods while the court makes a decision on the appeal?

Claudia Beamish

I absolutely agree. The SSPCA has highlighted that animals can have to wait for a decision on their fate for weeks, months or sometimes years, so that is of fundamental importance.

In recommendation 51, the committee raised the issue of video surveillance relating to wildlife crime. That is a valuable detection tool and evidence opportunity, although it has long thrown up challenges. Following the recognition that such crimes are serious, I expect that Police Scotland will be able to make use of that method more widely, and I hope that that will be the case. The principles governing the admissibility of evidence are not specific to video or closed-circuit television evidence, which is often used in criminal trials in Scotland, so I hope that that will be a possibility.

As I will make further remarks in my closing speech, I will leave it at that for the moment.

Mark Ruskell (Mid Scotland and Fife) (Green)

I welcome the introduction of the bill to Parliament. The Greens will of course back its general principles at stage 1. As the convener of the Environment, Climate Change and Land Reform Committee has pointed out, the way in which we as a society treat animals is a true measure of our wider values. Those who abuse and cause suffering to animals often go on to direct their sadism towards vulnerable people. By protecting animals, we protect everyone in society.

The bill introduces welcome and urgently needed increases to penalties, including for wildlife crime, but alone those are not enough. Much more needs to be done to address the wider barriers to successful convictions. As the 2015 wildlife penalties review group concluded, raising penalties is just part of the package that is needed to address wildlife crime and animal cruelty. There have been only two successful convictions under the vicarious liability provision in the Wildlife and Natural Environment (Scotland) Act 2011 since it was introduced seven years ago. In one high-profile case this year, a gamekeeper was convicted of multiple accounts of wildlife crime, including killing protected birds of prey, but the Crown Office did not proceed with a vicarious liability prosecution. There is still time for the bill to introduce wider reforms, including extending vicarious liability to cover crimes against mammals and ensuring that it can be applied to all forms of landowners.

As I am sure the minister knows, wildlife crime is prolific in areas such as the Angus glens. I had hoped that the Government’s special constable pilot in the Cairngorms would have proved to be the model for enhancing the detection of wildlife crime, but it has proved to be largely ineffective and has not resulted in any successful prosecutions whatsoever. Meanwhile, the Parliament has been incredibly patient while the Government has pondered extending the role of the SSPCA, so that its powers can cover wildlife crime. That was first proposed more than a decade ago by Peter Peacock MSP and since then the SSPCA has repeatedly offered to extend its role. In the intervening years, while we have been waiting, we have seen sustained persecution of birds of prey; every year we celebrate as fledgling sea eagles, golden eagles or hen harriers are tracked leaving their nests, but every year the same birds are found dead, poisoned and shot. That is Scotland’s national shame and we need to take decisive action. As part of the approach, we need a force with eyes and ears on the ground assisting the police. The SSPCA would be able to bring its professionalism and know-how to investigating and protecting wildlife crime evidence.

Why is it that an SSPCA officer can visit an illegal trap with a live animal caught in it, but a trap a few metres away with a dead animal is beyond its legal responsibility? Why is it that someone beating a dog at home is a matter for its investigation but someone beating a wild animal on the other side of the garden fence is not? The Scottish Government has the chance with this bill to do what it should have done years ago and make a logical extension to SSPCA powers while the statute book is still open.

On other aspects of the bill, the introduction of fixed-penalty notices is a welcome addition to tackle the most minor of offences in a speedy fashion. I am sure that there will also be further debate on extending maximum sentences to more welfare offences and on automatic bans on owning animals.

In a modern justice system, rehabilitation and restorative programmes as well as criminal sentencing, are vital. We discussed empathy training in the committee—indeed, it was a recommendation of the Poustie review that there should be such an option available at sentencing. We are, however, currently stuck in a chicken-and-egg scenario, where the lack of availability of appropriate empathy courses means that judges are unable to choose that route for an offender.

Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP)

What evidence did the committee see that empathy training has any impact? The evidence seemed to be ambiguous.

Mark Ruskell

That is the nature of the chicken-and-egg scenario that we are in. We have been unable to roll out empathy training in relation to animal cruelty despite the fact that judges have wanted to use it as a route. The restorative and rehabilitative approach works with other areas of criminality. There is good evidence from other countries on how the approach is starting to be used with wildlife crime and other forms of animal cruelty. It is an area that the minister is interested in and I ask her whether a reasoned amendment to the bill would help move us on at stage 2.

I warmly welcome Finn’s law in relation to service animals, which removes the defence that some may use to excuse violence against them. I ask the Government to review whether that provision could be broadened further.

The Animal Health and Welfare (Scotland) Act 2006 was a landmark piece of legislation. It was broad in scope, and I remember that the committee at the time had to work hard to scrutinise a wide range of issues, from the definition of an animal through to tail docking. With our exit from the European Union, the fresh bill could have been the opportunity to fully update the 2006 act, including consideration of more fundamental issues such as how the sentience of animals should be embedded across Government policy.

I recognise that a range of secondary legislation is in preparation for dealing with animal sanctuaries, breeding and sales, but there are still significant reforms that will now be delayed until the next session of Parliament, including—I am guessing, on the basis of the minister’s answer to my question earlier—the regulation of performance animals.

I hope that the minister can see that further opportunities still exist in the bill for the Government to take a progressive lead in the UK on animal welfare issues, and I hope that at stage 2 she will remain open to changes coming from Opposition parties as well as from the Government.

Liam McArthur (Orkney Islands) (LD)

I am pleased to take part in this debate on the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill on behalf of the Scottish Liberal Democrats. I start by commending Gillian Martin and colleagues on the ECCLR Committee for their scrutiny work, and I thank all those who have supported their efforts, particularly those who have provided written and oral evidence at stage 1.

The Scottish Liberal Democrats strongly back the principles of the bill, and many of the measures that it proposes, not least the introduction of what has become known as Finn’s law.

As Battersea Dogs & Cats Home and others have reminded us, Scotland has one of the lowest tariffs of sentence in Europe for animal cruelty. Twelve months in prison, plus a fine and a ban on keeping animals, for the worst act of animal cruelty compares badly with five years for crimes such as fly-tipping. The comparison does not reflect well on our justice system, nor does it reflect public attitudes towards crimes of animal and wildlife cruelty. The case for reform is therefore compelling. The bill seeks to bring in such reform by increasing the maximum available penalties for cruelty and causing unnecessary suffering to wild or domestic animals.

As OneKind has pointed out, establishing the principle of penalising wildlife offences at the same level as offences against domestic animals is both significant and very welcome. So too, I think, is the point that has been made by OneKind about the need to make a distinction between those acting perhaps out of ignorance, or a lack of capacity, and those who, as OneKind suggests, should know better. It is not unreasonable for courts to take a particularly dim view of individuals who perpetrate acts of cruelty or cause unnecessary suffering of animals in the course of their employment or business. Breeders, farmers, and gamekeepers can rarely argue with any credibility that they are somehow ignorant of the law.

In supporting an increase to up to five years’ imprisonment for the most serious cases of cruelty and abuse, the Law Society of Scotland helpfully clarified that the benefit is in the extent to which that broadens the range of prosecutorial options. That will allow certain offences to be tried on indictment, where circumstances merit it, and will potentially also increase police powers in the detection of certain more serious crimes.

As well as allowing for more appropriate sentencing in some instances, I hope and expect that the measures in the bill will act as a more effective deterrent. Obviously, the ambition is to see a reduction in cases overall, including a reduction in the number of individuals who reoffend. In that context, I was particularly struck by OneKind’s comments about the potential for alternative approaches. At a time when our prisons are full to bursting, when all the evidence tells us that short prison sentences are less effective in reducing rates of reoffending than community-based measures, this area seems ripe for making use of alternative and more effective approaches.

Community payback orders are already used widely to deal with animal welfare cases, but perhaps not enough attention is given to using them to deliver lasting behavioural change. That is in line with the Poustie review, which recommended

“That wildlife crime offenders should be required to attend retraining courses, including courses on empathy where appropriate”.

However, Poustie went on to warn that

“This would require establishing that such courses are available and raising awareness of such courses amongst the judiciary.”

As the Justice Committee has heard repeatedly over recent years, that is a common refrain when it comes to community-based measures.

The investment that is needed to increase capacity and raise awareness is far less costly than continuing with custodial sentences and high rates of reoffending. I hope the ECCLR Committee will look at how the bill might be amended at stage 2 to broaden sentencing options further, including, for the reasons that Mark Ruskell laid out, by using restorative justice.

I note the committee’s support for an extension of vicarious liability provisions. I was a member of the committee that considered the Wildlife and Natural Environment (Scotland) Bill, which first brought in vicarious liability provisions. The previous convener of that committee swung effortlessly into the role of minister before bringing forward the proposals that the committee was scrutinising. Those proposals were intended to respond to the persistent and egregious persecution of raptors and birds of prey.

Notwithstanding Mark Ruskell’s concerns about the lack of prosecutions, I believe that the measure has had some success as a deterrent. However, the painful truth is that the illegal poisoning and persecution of many of our iconic species continues at shameful levels. That helps to explain the conclusions that Professor Werritty reached in his report on the case for licensing. I think there is an argument for looking at how vicarious liability might sensibly be extended to other types of wildlife crime.

I am not yet persuaded on the argument for extending the powers of the SSPCA. That was another debate that we had at the time of the WANE bill’s passage through Parliament. I was sympathetic to the frustrations and difficulties in gathering evidence, and indeed about the capacity of police officers to cover the ground in a timely fashion. I also recognise the apparent anomalies in the powers that SSPCA officers have in responding to complaints of cruelty towards domestic animals compared to reports of wildlife crime incidents.

Nevertheless, I remain uneasy about an extension of SSPCA powers. My mind is not closed to the idea, but the implications—and knock-on consequences—of going down that route need very careful consideration. I believe a task force would be well placed to give that consideration.

Claudia Beamish

Will the member accept an intervention?

Liam McArthur

Do I have time to take an intervention?

The Deputy Presiding Officer

Oh, why not?

Claudia Beamish

Could the member explain why he is uneasy about the alteration of powers, especially in view of what Mark Ruskell said and of the fact that the SSPCA has said that it already has powers in relation to animals?

Liam McArthur

Claudia Beamish raises a legitimate question. I sympathise with some of the anomalies that Mark Ruskell has outlined, but I recall from the debates that we had about the WANE bill that the consequences of extending the SSPCA’s powers, as has been suggested, are not without challenges. The task force seems to be a suitable framework for further consideration before we bring forward any proposals about that.

That is just one of the issues that I am sure that ECCLR Committee members will wrestle with during stage 2. Another is the question of whether the Finn’s law provisions should be extended to cover other working animals, including assistance animals. I look forward to seeing how the debate on that and many other issues unfolds at stage 2.

Meantime, I welcome the bill and the additional protection that it will provide to animals and wildlife in Scotland. As the minister reminded us, its provisions enjoy overwhelming public support and Scottish Liberal Democrats will be happy to vote in favour of the principles of the bill at decision time.

The Deputy Presiding Officer

We move to the open debate. Please keep speeches to six minutes. I have a tiny bit of time in hand, but do not go overboard.

Kenneth Gibson (Cunninghame North) (SNP)

I am pleased that the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill has been brought to the chamber. I thank OneKind, Battersea Dogs & Cats Home, Dogs Trust and a range of other animal charities for the briefings that they have provided.

The bill is another step in the Scottish Government’s strategy of improving animal welfare across Scotland. In 2016 the SNP Government improved responsible dog ownership through compulsory microchipping, which helps make it easier for dogs to be recognised and reunited with their owners if lost or stolen.

In February, the SNP Government appointed members of the Scottish animal welfare commission to advise on the welfare of sentient animals, in line with the 2019-20 programme for government. The Government has also consulted on introducing compulsory video recordings of slaughter in abattoirs to make sure that that is carried out humanely, and will bring forward secondary legislation on that next year. In that regard, the Government supports industry introduction of closed-circuit television in abattoirs before it becomes compulsory and is committed to exploring the potential for new systems of calf rearing in the dairy sector.

Animals are defenceless and might need human help when it comes to their safety, wellbeing and protection—particularly when they are threatened by other humans. Legislation provides a framework for that, and we should pay tribute to those who work, often as volunteers, on the front line.

In my constituency of Cunninghame North, such work is done at Hessilhead Wildlife Rescue near Beith. Dedicated staff who are mostly volunteers do all that they can on a daily basis to rescue animals, treat them and nurse them back to health. Once rehabilitated, the animals are released back into the wild when it is deemed safe. Facilities at Hessilhead include an intensive care unit, a swan and seal hospital with indoor pool, a hedgehog unit, a surgery with X-ray equipment and more than 60 outdoor aviaries, enclosures and release pens. Hessilhead is a busy rescue centre, known for carrying out its work with the utmost care and to the highest standards.

Sadly, not all rescue centres live up to that and there are still upsetting cases in which those we entrust with responsibility for our pets and other animals turn out to be the worst perpetrators. Colleagues may remember the 2017 case of the Ayrshire ark, a rescue home in Patna that was exposed for the mistreatment and neglect of animals after a police raid resulted in the discovery of the emaciated and mutilated corpses of 15 dogs and one cat. The photos of the frozen remains of once-loved pets paint terrible pictures of the suffering inflicted on them that stay with anyone who sees them.

The perpetrator received a pitiful seven-month jail sentence for causing the animals unnecessary suffering, with a concurrent four-month sentence for failing to ensure their welfare and a lifelong ban on owning or keeping animals. That was after the offender had pled guilty to nine charges, including causing unnecessary suffering, exposing dogs to unsatisfactory conditions and failure to provide the necessary nutrition and veterinary treatment.

Dee McIntosh, who was then the communications director of Battersea Dogs & Cats Home, said:

“Had this woman been convicted of fly tipping”—

which is another issue that members have raised today—

“she could have been jailed for up to five years. Instead, she escaped with just a few months.”

Increasing penalties, including a maximum custodial sentence of five years for animal cruelty, and introducing fixed penalties are, in my view, most welcome. However, as other members have pointed out, more needs to be done to secure successful prosecution; Mark Ruskell’s comments in that regard were particularly compelling. Such penalties are particularly important for wildlife crimes, which are just as serious as domestic animal crime. Cruelty is cruelty, and it should be treated as such by the authorities.

I pay tribute to the brave dogs and horses working for Police Scotland. I am not on Twitter, I am pleased to say, but I am told that I am truly missing out on the Scottish police dogs and Scottish police horses accounts. I understand that day in, day out the dogs and horses display the greatest valour and sometimes suffer vicious attacks in the line of duty, occasionally resulting in injury or death. That is why section 3 of the bill, which seeks to improve the protection of such service animals, is most welcome. Police dogs and horses are an extension of their handlers and when an alleged perpetrator attacks them it is an attack on the police. There should be no mitigating circumstances for that, and I agree that the self-defence argument should be removed.

I believe that to achieve maximum protection, the terminology that is used in section 3 could be reconsidered to clarify what a “service animal” is. I would not necessarily look for a definition along the lines of animal species, as limiting it to species that are currently in harness may not be enough in the future. It would be better to define more clearly which services the animals are involved in. It would also be good to clarify whether the definition includes guide dogs, which even more than rescue and armed forces service animals are an extension of the person who handles them. I am sure that such matters can be thrashed out as the bill is considered at stage 2.

I am delighted to support the principles of the bill and I look forward to it soon becoming law.

Maurice Golden (West Scotland) (Con)

I have spent several years campaigning to improve animal welfare in Scotland, and there is much to welcome in the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill, not the least of which is toughening up punishments for animal cruelty.

The Scottish Conservatives are clear on this: those who inflict pain and suffering on animals should always feel the full force of the law. However, that has not been the case. In almost 800 animal cruelty convictions over the past decade, most perpetrators avoided prison. Only 41 custodial sentences were handed out. The public will understandably be outraged by that lack of justice. We saw that in the bill consultation, to which 99.4 per cent of respondents agreed that punishments should be strengthened. It is right that the bill should increase the maximum sentence for animal cruelty offences to five years or an unlimited fine. However, we should go further by introducing measures such as automatic bans on keeping animals for those who are convicted of the worst animal cruelty offences, and life bans for the worst offenders. That position is supported by a number of welfare organisations, including the Dogs Trust and the SSPCA.

I welcome the introduction of fixed-penalty notices for the most minor offences, which will give local authorities more flexibility to deal with more minor cases and help free up courts to deal with the more serious ones. Given the support for that across the Parliament, I hope that we can correct an omission from the bill: the lack of provision for a central register to track those fixed penalties, or animal cruelty cases in general. Such a register would help to make investigations more efficient, monitor risk factors and spot when low-level incidents might escalate. The Scottish Conservatives believe that that is too important an advantage to throw away, and we will look to amend the bill at stage 2 to make better provision for data sharing. I look forward to working with the minister where there is common agreement.

I am also pleased to see that the bill will introduce Finn’s law; Liam Kerr has already had an outing today. Service animals risk their lives to protect us, so it is only right that we give them protection in return. That is long overdue. PC Dave Wardell, along with the aforementioned Liam Kerr, has fought hard to introduce that.

On the other hand, I was disappointed to see the bill do nothing to address electric shock collars. I campaigned for an end to those cruel devices and over 20,000 people signed my petition in agreement. A prompt and effective ban was promised, but ineffective guidance was delivered. That is not good enough, and the welfare organisations agree. The Kennel Club and the Dogs Trust have said that they were disappointed. The Edinburgh Dog and Cat Home has called for an outright ban, and that was echoed by OneKind, which says that the Scottish Government should follow the Welsh example with a real ban. The minister should listen to the experts. The current guidance does not protect dogs. It is time to ban the use of electric shock collars in Scotland—once and for all.

Long overdue, too, is making pet theft a specific offence. As the law currently stands, pets are classified as objects. Stealing a dog is treated the same way as stealing a phone. Anyone who has a pet knows that they are not objects; they are part of the family and they deserve better protection in law.

In tandem, there is a need to improve how pet theft and animal cruelty incidents are recorded by the police. The Dogs Trust and SSPCA are actively looking at that. With five pet thefts each day across the UK, we need action. In Scotland, residents in Fife worry that gangs target specific homes, and, in one terrifying incident, an Arbroath lady was held at knife-point while trying to rescue her dog.

There is good will across the Parliament to see the bill succeed, and we should use that good will to ensure that Scotland has the highest animal welfare standards. I stand ready to work with the minister and with members across the Parliament to deliver the bill.

The Deputy Presiding Officer

I have a wee bit more time in hand now. If any members would like to offer or take interventions, I can allow time for that.

Colin Smyth (South Scotland) (Lab)

I declare an interest, as I am a member of the League Against Cruel Sports, the deputy convener of the cross-party group on animal welfare and Scottish Environment LINK’s member of the Scottish Parliament species champion for badgers.

Mahatma Gandhi once said:

“The greatness of a nation and its moral progress can be judged by the way its animals are treated.”

From baiting and fighting to mass puppy farming and the illegal shooting of birds of prey, there is nothing great about the heartbreaking stories of cruelty that we hear of taking place in Scotland every day. This Parliament has a moral duty to ensure that our laws help tackle that cruelty and deliver the highest standards of welfare for every animal in Scotland.

It is clear that the current sentencing options for animal welfare and wildlife crimes do not reflect the severity of the crimes that we hear about, so I welcome the decision to correct that in the bill and I congratulate all the campaigners who have fought so hard for that change in the law.

The penalties that are proposed in the bill for animal welfare and wildlife crime will act as a stronger deterrent and will give courts the flexibility that they need to deliver fairer sentences. In particular, the decision to set the maximum sentence for the most serious wildlife crimes at the same level as that for domestic animal welfare crimes at long last reflects the sentience of wild animals.

However, as well as increasing the penalties for those crimes, we need to look at whether the law’s coverage of crimes and animals is adequate. In their joint briefing on the bill, Blue Cross, Cats Protection, the Edinburgh Dog and Cat Home, PDSA and the Dogs Trust highlighted the significant number of animal offences that are not covered by legislation. Offences such as mutilation, cruel operations, poisons, failure-to-ensure-welfare offences, licensing activities involving animals and abandonment are not covered by the changes to be made by the bill, despite the serious harm that such crimes can clearly cause. As it stands, any such offences would be punishable only by a maximum of six months’ imprisonment or a £5,000 fine. If the aim of the bill is to properly punish, act as a deterrent and give the courts more flexibility to deal with animal welfare crimes, it does not go far enough and there is a clear case for expanding the number of offences that are covered by increased sentences.

Likewise, the Environment, Climate Change and Land Reform Committee’s positive report, on which I congratulate the committee, highlights problems with how wildlife crimes are categorised. The committee calls for

“a consistency of approach for categorising and prosecuting different types of wildlife offence.”

In their evidence to the committee, Scottish Badgers and Scottish Environment LINK specifically highlighted the need for stronger protection for habitats and badger setts, which was reflected in the committee’s conclusion that

“the destruction of a habitat could be as fatal as directly harming or killing an animal.”

The committee rightly recommends that the Government

“reconsiders its approach to ensure enhanced protections are extended to resting places and breeding sites”.

I was deeply disappointed that the Scottish Government dismissed that suggestion and I urge it to reconsider.

Scottish Badgers has suggested that a minimum fine is introduced for the most serious wildlife crimes, as recommended in the Poustie review. I hope that the Scottish Government will also give due consideration to that suggestion.

We need to review which animals are covered under the Animal Health and Welfare (Scotland) Act 2006. It is becoming increasingly clear that cephalopods and decapod crustaceans should be protected animals, as more and more evidence points to the fact that they are intelligent, sentient animals that are capable of experiencing pain.

Although the longer custodial sentences and higher fines that are proposed in the bill are welcome, they must not be the only action that is available. In its evidence to the Environment, Climate Change and Land Reform Committee, OneKind highlighted the need for alternative solutions

“to help an individual develop empathy and regard for animals and learn to treat them humanely”,

and suggested that community payback orders can be better utilised

“to effect behavioural change and provide long term protection for animals.”

It is vital that our response to such crimes is constructive and not purely punitive. Although non-custodial interventions, such as restorative justice processes and rehabilitation programmes, are not currently prohibited, there is no dedicated option for animal welfare, and little clarity on how and when such an approach should be taken. The bill is an opportunity to address that, so I am disappointed that the Government’s response to the committee fails to acknowledge the value that such a scheme could have, dismissing it as not “proportionate or cost effective”.

The introduction of fixed-penalty notices is a useful proposal, but it must be limited to minor offences, and I urge that consideration be given to Scottish Badgers’ suggestion that where FPNs are issued, they should be combined with behaviour orders specifying restrictions or goals for future behaviour.

We should also use the bill as an opportunity to discuss the possibility of automatic bans on owning animals for those who are convicted of serious animal cruelty offences.

On the subject of enforcement, although the strengthened penalties are welcome, they are meaningless if we do not improve the detection and prosecution of such crimes. That means backing up the bill with properly resourced specialist enforcement. I echo the committee’s recommendation that

“the Scottish Government explores in detail the options to enhance detection and prosecution by expanding the powers of the SSPCA”.

I hope that we do not look back on the bill as a missed opportunity to do so, given the SSPCA’s significant expertise and skills in this area. We should make the most of such skills in our fight against animal cruelty.

Stuart McMillan (Greenock and Inverclyde) (SNP)

I welcome the bill and the stage 1 report by our colleagues in the Environment, Climate Change and Land Reform Committee. I thought that the report was extremely helpful for someone who is not a member of the committee and that it set out a lot of the issues in the bill. I recommend that anyone outside the Parliament who is interested in the bill and the subject that it deals with look at the report. I also thank the minister for our dialogue last year, when we had a meeting regarding a particular local issue that I will come to in a few moments.

I will focus my comments on that local issue, but I will first touch on a couple of issues in the bill and the stage 1 report. I thank my committee colleagues for their report and their clear analysis of the bill. The graphic information on page 2 of the report sets out clearly what the bill will do. It is important that people recognise that the bill

“Increases penalties for animal and wildlife crime ... Introduces fixed penalty notices ... Extends the time allowed for prosecution ... Increases the protection for service animals ... Gives new powers to ‘authorised persons’”.

Those are extremely important provisions. I welcome the recommendations on page 5 of the report to increase “maximum penalties” to “five years in prison” and that “further discussion” take place with the Scottish Government on the issue of “sentencing guidelines”.

Page 7 highlights the issue of “empathy training”. I welcome such training, but I believe that some individuals have no empathy whatsoever and that any empathy training would be totally wasted on them. Sadly, that is just a fact of life in society.

I welcome the recommendations on page 8 regarding the sharing of information, and I note the reply from the Government on that matter. For me, the issue here is that it does not matter where some individuals live, because the issue of local authority boundaries will make absolutely no difference to them. It is therefore important that we get it right on the issue of information sharing.

I turn now to the local issue that I referred to, which I have spoken to the minister about previously and raised in the previous parliamentary session as well. There was an incident in Gourock in 2011 at the Pets Corner animal shelter in Darroch Park. It was reported in the local newspaper, the Greenock Telegraph, that someone had entered the park and killed a number of the animals in the shelter. It was thought that the animals were killed by a golf club and by a dog. The article in the newspaper stated:

“The animal attackers went on a sickening rampage at the popular family attraction which left six animals dead, 12 missing and another two needing urgent treatment at a vet surgery. It’s thought a golf club and a large dog were used as lethal weapons in the frenzy.”

Local vet, Neil McIntosh, of the Abbey Group, who was involved in the treatment of the animals, said:

“The four guinea pigs were gripped and killed by the dog, and the rabbit had a badly broken jaw, probably caused by the golf club that was left lying at the scene.”

That crime shocked the whole community, and the local newspaper undertook a justice for pets campaign. The campaign received over 5,400 signatures for its petition, which was handed to the then cabinet secretary, Richard Lochhead, at a meeting. The ex-MSP Duncan McNeil and I attended that meeting and we were fully supportive of the Greenock Telegraph’s campaign. The campaign’s two asks were increased sentencing and removal of the time bar for prosecutions. The latter ask is important, because the crime took place in 2011 and local police found DNA evidence in 2013—two years later—that directly linked an individual to the offence. The police therefore arrested him. Sadly, as the arrest happened after the six-month period that was allowed at that point for arrests after an offence, the individual went free.

The bill seeks to safeguard domestic, farm and wild animals, and the various penalties highlighted are very welcome. Each of the penalties will involve trials under either solemn or summary procedure, and time bars for bringing prosecutions will not apply after the bill has been enacted. I would be grateful if the minister could clarify whether the bill achieves the goal set out in the Greenock Telegraph’s campaign. If there are any issues in that area, I will continue to have dialogue with the minister.

The minister wrote to me in March 2019 about the campaign. She said that the Scottish Government

“intends that the most serious animal welfare offences could, in future, be prosecuted under solemn procedure, removing the statutory time limits for prosecution. Those proposed changes would appear to meet the concerns of those supporting the Greenock Telegraph’s petition.”

However, I am very much aware that section 10 of the bill says:

“But no such proceedings may be brought more than 3 years”

after in certain cases. I would be grateful for a wee bit of clarification on that aspect.

I am genuinely delighted that this long-overdue bill has been introduced to Parliament. I thank the minister for her hard work on, and her determination in progressing, the bill. I know that animals across Scotland will be a lot safer as a consequence of the bill, and I am quite sure that many of my constituents will be delighted with it.

Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

I thank the Environment, Climate Change and Land Reform Committee and its convener for all their hard work in putting together the recommendations that are set out in its report.

The bill will amend the Animal Health and Welfare (Scotland) Act 2006, several pieces of wildlife legislation and the Animal Health Act 1981 for the purposes of further protecting the health and welfare of animals and wildlife in Scotland.

It is important to remember that the bill does not create offences; rather, it is concerned with increasing the range of sentencing options for existing animal and wildlife offences.

Individuals who cause pain and suffering to animals should be met with the full force of the law. The Scottish Conservatives welcome this long-overdue bill, which will toughen sentences for animal cruelty.

Some 99.4 per cent of respondents to the Scottish Government’s consultation agreed that penalties are too low and that increasing the maximum penalties would increase sentencing options, which would ultimately act as a deterrent.

We have all heard about many shocking animal cruelty cases in which the maximum sentence available to the court was not sufficient. The bill amends the 2006 act to increase the maximum available penalties for causing unnecessary suffering, and it increases the penalty for animal fighting offences from the current 12 months’ imprisonment and/or a £25,000 fine to five years’ imprisonment and/or an unlimited fine.

Battersea Dogs & Cats Home has said that there needs to be a change because, no matter the circumstances in which an animal has suffered, the courts in Scotland can punish only the most serious acts of animal cruelty with up to 12 months in prison, a fine of up to £20,000 and a ban on keeping animals. The British Association for Shooting and Conservation submitted that

“BASC fully accept and recognise that the current penalties for animal welfare offences do not reflect the seriousness of the crimes in question.”

The proposed penalties of up to a five-year custodial sentence and/or an unlimited fine reflect the abhorrent nature of the offences, as detailed in sections 19 and 23 of the Animal Health and Welfare (Scotland) Act 2006. The severity of the sentences will likely be a strong deterrent factor, which will effectively reduce the prevalence of animal welfare offences across Scotland.

I turn to some of the changes that the bill will bring. The bill introduces powers to enable the Scottish ministers to make regulations for the issuing of fixed-penalty notices in respect of certain animal health and welfare offences. There is broad cross-party support for providing authorities with flexibility to determine the appropriate means for the range of enforcement tools that are needed to provide a deterrent for minor offences. It would be useful to hear the results of the consultation and how the Government intends to introduce fixed-penalty notices.

The Law Society of Scotland is concerned that the operation of fixed-penalty notices lacks detail, and it would have expected consultations to have been concluded before the introduction of the bill. For example, we do not know how the Scottish Government will ensure that fines do not go unpaid. The Scottish Conservatives hope to have the details about that ironed out as the bill progresses.

The Scottish Conservatives have vigorously campaigned to increase the protection for service animals. We consider that increasing such protection for police dogs and horses makes it easier to convict people of causing unnecessary suffering, and the bill will include the Scottish version of Finn’s law. Currently, when determining whether a person has committed such an offence, the court must have regard to whether the conduct was for

“the purpose of protecting a person, property or another animal”.

The bill will require a court to disregard that defence when the offence is committed against a service animal in the course of its duty.

Giving new powers to authorised persons is important, and the bill amends the 2006 act to introduce a new procedure to allow enforcement agencies to transfer, treat or destroy animals that are taken into their possession for welfare reasons without needing to obtain a court order. At the moment, enforcement agencies must obtain a court order to take such action. The new procedure will surely help in those circumstances.

With regard to wildlife crimes, the committee wants a consistent approach to be taken to the categorisation and prosecution of different types of wildlife offence, and it has asked the Scottish Government to consider taking such an approach. The committee understands that there are different tiers of penalties and is unclear about the logic for those differences. The effect of the destruction of a habitat could be as fatal as directly harming or killing an animal. For example, as we have heard, the destruction of setts could lead to the destruction of a colony and the deaths of the animals.

Given that Police Scotland played a full part in the wildlife crimes penalty review group, which was chaired by Professor Poustie, the organisation’s views were considered as part of his final report. As that appears to form the basis of a significant part of the bill, Police Scotland supports the bill in principle, as it will give the organisation additional options for investigating wildlife crime offences, such as the use of covert surveillance. However, it should be reiterated that the utilisation of such police tactics will always be considered on a case-by-case basis.

We support tougher sentencing for animal cruelty. It is long overdue for the most serious cases of animal cruelty to be dealt with much more severely by our courts. We campaigned for Finn’s law, and we thank PC Dave Wardell and Liam Kerr for their hard work in that regard. We believe that service animals such as police dogs play a vital role in the detection and prevention of crime, but, at the moment, the criminals who harm them are let off the hook. Anyone who causes pain and suffering to animals should be met with the full force of the law, and we support harsher sentences for animal cruelty.

Ruth Maguire (Cunninghame South) (SNP)

Would Ms Hamilton support legislation to tackle the cruelty of foxes being ripped apart by dogs?

Rachael Hamilton

As I have said numerous times, I think that it is important that anyone who inflicts cruelty on animals is punished in accordance with the law. I agree with many of the recommendations from the Bonomy review, including those on the code of practice and the monitoring.

The Environment, Climate Change and Land Reform Committee—of which I am no longer a member, as I have moved to the Rural Economy and Connectivity Committee—will strengthen the bill through amendments to ensure that agencies can share information on animal cruelty, which will make it easier to investigate abusers.

I would have liked to talk about the impact statements, which I think will be extremely important, and the committee’s recommendation to the Scottish Government about an amnesty on pesticides, but I must stop there.

Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP)

I declare an interest as convener of the cross-party group on animal welfare and as a member of the SSPCA and RSPB Scotland. I congratulate the ECCLR Committee on its report. I almost—only almost—miss being on a committee. I thank the organisations that sent briefings in time for the debate.

Because I am speaking at the tail end of the debate—not that I mind being at the tail end—I will retread some of what has been said, starting with the purpose of the bill, which will amend the Animal Health and Welfare (Scotland) Act 2006. In particular, it will increase the maximum penalties for cruelty, introduce powers for the Scottish ministers to issue fixed-penalty notices, increase protection for service animals and provide for a new procedure to allow agents including the SSPCA to transfer, treat or destroy animals that are taken into their possession for welfare reasons without first having to obtain a court order.

On the number of animals that we know are in need, the SSPCA has told us that there were 82,000 reports in 2019, the majority of which related to injured wildlife. As we know, that is probably just the tip of the iceberg, because tracking and tracing animal welfare and wildlife crime is extremely difficult. It is difficult to locate it in the first place, and thereafter it is difficult to identify the culprits and to get sufficient evidence to pursue a prosecution. Such events, by their nature, take place covertly—one might say that they are perpetrated in a cowardly manner—and often in remote and rural areas.

As others do, I deplore every instance of animal cruelty, whether it is domestic or involves wildlife. To be frank, although I welcome the proposed increase in the penalties, I could support the maximum being raised even further.

I note that, according to the Scottish Government, there are more than 200 wildlife offences scattered across many pieces of legislation. I think that what Finlay Carson is calling for is a consolidation act. For the public, let alone for people who practice law, it is not handy to have 200 offences across many pieces of legislation: it would be handy to have them all in one place. That said, I welcome the proposed increase in the maximum penalty for offences from one year to five years, and I particularly welcome the removal of the time bar. With a time bar, if we do not prosecute soon enough, we cannot prosecute at all.

Fixed-penalty notices, which are a work in progress, are a good idea for minor and technical offences. I am not, however, so convinced about so-called empathy training, which I raised with Mark Ruskell. The Scottish Government said in its reply to the committee:

“There have been a number of recent studies on the efficacy of rehabilitation/empathy training on sexual/violent offenders, with mixed results being reported ... While it is possible that empathy training might benefit some offenders, it would be very difficult to come up with training that would effectively prevent/reduce re-offending in all offenders.”

I am not saying that such training is a bad thing; I just think that the jury is out.

Rachael Hamilton

When we discussed empathy training in the committee, concern was expressed that there would be issues related to resources and time.

Christine Grahame

We should investigate whether it is worth putting resources into things before we put resources into them—that is my point. The jury is out on whether empathy training is working where it is used at present.

The ability for agencies such as the SSPCA to rehome animals without the need to apply for a court order is long overdue. There is a cost to animals’ wellbeing. The average period for which animals are kept in custody, as it were, is currently 203 days, which is usually because they are being used in evidence in a case. Between 2016 and 2018, that cost the SSPCA some £1.5 million, which could perfectly well have been used for other things.

While I am talking about the SSPCA, I note that increased powers of investigation—which Mark Ruskell mentioned in passing—and even of enforcement are a really good idea. We are stretched in terms of policing wildlife crime. I note that special constables are being trialled—I think, in parts of the Cairngorms. That is a good idea. The more boots on the ground for finding out where wildlife crime is taking place, and for gathering evidence at the right time, the better.

Mark Ruskell

Does Christine Grahame agree that one of the issues is confusion about the powers of the RSPCA and SSPCA? The RSCPA can pursue its own prosecutions, whereas the SSPCA does more evidence-gathering work that supplements and supports the work of the police. That is the extension of powers that we want to focus on, rather than necessarily giving the SSPCA the full powers to prosecute that the RSPCA has in England.

Christine Grahame

When I mentioned enforcement, I did not mean prosecution. I agree that the problem of the distinction between the RSPCA and the SSPCA is long standing. People leave money in their wills to the wrong animal welfare organisation by mistake.

On the idea of a central register, it would be hugely difficult to get on one register all the information about written warnings, animal welfare cruelty and wildlife cruelty, but it is worth pursuing. I will plug my member’s bill—if Emma Harper can do it, I can do it. I have proposed the responsible breeding and ownership of dogs (Scotland) bill, which would provide for a central register of all puppies that are born in Scotland, to match the fact that all licensed breeders must register puppies. That is so that we would know who has dogs and where they have come from. That is nothing to do with the debate, but I mention it anyway.

The one recommendation that I could not quite follow is on absolute removal of the defence of self-defence in relation to attacks on service animals. I do not want anybody to get me wrong; I deplore attacks on service animals. However, if someone who is in charge of a horse or a dog weaponises it, or if an animal is out of control when it should be under its handler’s control, and someone—the victim—has to respond by inflicting a physical injury on the animal in order to protect themselves, that would be self-defence. In those examples, the handler would be using their animal almost as a weapon, either accidentally or deliberately.

When the committee asked the Government whether it was aware of any cases in which a working animal had been attacked and the attacker successfully used the defence of self-defence under the relevant section 19, the Government replied that it had no examples whatsoever. I do not see why we are taking away a defence that is so rarely used—even in the criminal courts when a person is attacked by another person. There might well be examples when it is perfectly legitimate for a person to say that they responded to the actions of an animal as an act of self-defence. I will leave that there for consideration. Other than that, I fully support the bill.

Claudia Beamish

In closing for Scottish Labour, I will highlight more committee and party issues, and respond to some of the comments that have been made during the debate.

I start with the impact statement and the value in sentencing, which was compellingly argued for and was highlighted by the committee’s convener today. I would value a response from the minister on that.

Members have talked about empathy training in some detail. It is disappointing that the Scottish Government response rules out taking responsibility for its development. I appreciate that it would have costs, but the minister’s response states:

“Those animal welfare offences most likely to involve a significant lack of empathy and that result in custodial sentences are those involving deliberate abuse. Given that there are so few custodial sentences, it does not seem proportionate or cost effective to develop and deliver bespoke training for them.”

Some animal charities, including OneKind, with which my colleague Colin Smyth and I have had careful discussions, and which has experience and good judgment, have supported the proposal for empathy training. OneKind stated that the bill should be amended

“to require the courts to consider restorative justice processes and rehabilitation programmes for all people convicted of offences against animals, where these are available.”

I echo that. There should be funding for that crucial part of the range of sentencing opportunities.

I will therefore consider lodging an amendment to require the Scottish Government to develop a bespoke animal welfare empathy training programme to be delivered as part of community payback orders, where appropriate, and to set out guidance clarifying how and when that should be used in sentencing, as has been called for by some charities. As Colin Smyth said, it is important to be constructive and not only punitive.

I welcome the minister’s commitment to look at the detail of fixed-penalty notices before stage 2. In view of her comments about their use and the fees, I hope that it might be possible for local authorities to be responsible for them, and for them to use the fee money appropriately and relevantly. The minister’s letter to the committee today spoke about the FPN consultation process and highlighted a positive response.

The Environment, Climate Change and Land Reform Committee recommended robust information sharing. I hope that the minister will consider, in addition to the arrangements that she talked about, the committee’s suggestion about sharing information with social work departments, as appropriate, as is done in some countries. There is evidence of a link between a range of challenging crimes, some against animals, and others—equally sadly and worryingly—against humans.

I welcome the complementary measures in the bill, which were also highlighted by the minister. When I was a deputy convener of the animal welfare cross-party group, with Christine Grahame, closed-circuit television in abattoirs was explored in some detail. Will the minister say whether there will be support for smaller abattoirs if the proposal goes forward, because they might be challenged by installation costs?

Because they are connected with the bill, I feel an obligation to highlight the challenges that are faced in relation to some driven grouse moors and wildlife crime. Scottish Labour is clear that the Scottish Government should move urgently to introduce licensing of driven grouse moors, and with robust criteria. It is not acceptable to wait out the five-year pause that was recommended in the Werritty report on a range of issues that have gone on for far too many years.

Committee questions on suspension of general licences and appeal arrangements received a detailed response from the minister. The civil balance of probabilities test on whether wildlife crime has been committed

“can be an effective enforcement tool”,

but, of course, it in no way implies that criminal prosecution is not possible, or that criminal prosecution as a separate process should be delayed.

Finally, I commend all those who have supported the development of this vital bill, and I look forward to working with colleagues on the ECCLR Committee and with the minster and stakeholders as we progress to stage 2.

Annie Wells (Glasgow) (Con)

I welcome the chance to speak about this long-overdue bill. One of the biggest perks of my new role as environment spokesperson is the chance to speak about animals and to ensure that they get the protection that they deserve.

I thank the Environment, Climate Change and Land Reform Committee for all the work that it has done so far. I welcome Gillian Martin’s contribution on behalf of the committee, and I look forward to working with her and fellow committee members throughout the progress of the bill.

As the owner of two dogs, Albert and Faith, I know how I would feel if they came to any harm, so it is right that we take the steps to make sure that sentences are appropriate and that justice is done. As Claudia Beamish said,

“there is strong public interest in ensuring the protection of animals”.

I totally agree with that. We can all readily agree that individuals who cause pain and suffering to animals should meet the full force of the law.

It is right that we increase the maximum penalties and make sure that there is an appropriate deterrent. Twelve months for animal cruelty, in the most severe cases, is just not enough. The justice system needs the flexibility to treat the most shocking acts more seriously than it does at the moment. Maurice Golden made a good point regarding a lifelong ban for those who commit the most serious of crimes, and I look forward to seeing amendments at stage 2 in that regard.

As Liam McArthur reminded us, Scotland has one of the lowest rates of sentencing in Europe, with only 41 custodial sentences in the past 10 years. The increase to a maximum of five years will bring us into line with the current penalties elsewhere, and there was unanimous agreement on those measures in the Scottish Government consultation. As we have heard, 99 per cent of respondents were in agreement; I do not think that I can remember that happening in any other consultation.

The Scottish SPCA’s briefing summed it up well when it said:

“Everything proposed in the Bill will make Scotland a better place for animals.”

I know that that is what we all want.

Blue Cross also made an interesting point in its briefing for today’s debate when it highlighted that it is not only the animal that suffers horribly from cruelty, because there is a huge amount of emotional and mental distress for the staff who have to deal with the aftermath. There is more that we can do to help those workers to get the support that they need. The bill is probably not the place for doing so, but I would like us to explore how we can better help those workers deal with trauma. Specific training for workers could perhaps be provided in the meantime.

Of all the measures in the bill, I am especially delighted to welcome the inclusion of Finn’s law. Last year, the UK Government passed its own bill, which is known as Finn’s law. As we know, my colleague Liam Kerr has fought hard to ensure that we get the right level of legal protection for service animals such as Finn. Some people do not realise how hard Liam has fought for the bill. He visited a police dog training centre, where he was fitted with protective gear, and a dog was encouraged to bite his arm. Needless to say, the dog went for it. Some of the photos did not see the light of day but the look on Liam’s face was something to behold. He has gone above and beyond to make sure that Finn’s law happens in Scotland, as it has in the rest of the UK. Therefore, I am glad to see recognition today for my colleague and everyone who has campaigned for Finn’s law.

On the suggestion that the provisions of Finn’s law should be extended to other working animals, it is important that we do not unnecessarily dilute that part of the bill. The committee found no firm evidence to support the idea that existing legislation cannot protect working animals. Attacks against other types of animal can be prosecuted under existing offences in the 2006 act, such as causing “unnecessary suffering”. I note the committee’s point that, regardless of the type of animal involved, the bill will increase the maximum penalties for those offences.

As far as improvements are concerned, the bill could be made better in two areas. First, the Law Society of Scotland made a worthwhile point when it suggested that there is a need for guidelines to help inform, guide and ensure consistency of sentencing. Anecdotally, I accept the Law Society’s point that we could have more firm evidence on that. The sentencing of people who have committed horrific acts on animals can be inconsistent. In her response to the committee, the minister raised the fact that the Scottish Sentencing Council has responsibility for guidelines. In May 2019, it said that it would defer the creation of those guidelines so that it could focus on sexual offences. Although I support that decision and the independence of the Sentencing Council, there is a need for guidelines to be introduced as soon as is practically possible. The minister said that she would write to the Sentencing Council to draw attention to those discussions; I hope that that happens and that the Sentencing Council receives the support that it needs to draw up those guidelines imminently.

Secondly, and as my colleague Finlay Carson set out in his speech, there appears to be a desire to share information between authorities but the committee heard that that does not happen in practice. That can act as a significant barrier to animal protection and can make investigations inefficient.

The committee took evidence and realised that sharing information about disqualification orders and fixed-penalty notices might help to track patterns of offending, such as domestic abuse and criminal activity. Given that the committee convener and members have raised that point today, I hope that we can strengthen the bill with amendments on information sharing. The minister’s response to the committee on that point was welcome; she said that the Government is open to considering

“how we can support any possible improvements to information sharing and databases”.

The Scottish Conservatives look forward to working with other parties to make sure that that happens and that the necessary improvements are made, so that the bill is as strong as possible.

As the minister stated in her opening remarks, any animal cruelty or wildlife crime will not be tolerated.

The Deputy Presiding Officer

I call Mairi Gougeon to wind up the debate. Minister, I would be obliged if you could take us up to 4.45 pm.

The Minister for Rural Affairs and the Natural Environment (Mairi Gougeon)

I have about a million pages here, so I will happily oblige you with that. I have been frantically taking notes throughout the debate, because a lot of points have been raised today.

As we have heard, we all take animal welfare and wildlife crime seriously in Scotland and across the chamber. People are rightly passionate about the subject, so I am proud to introduce this important bill to strengthen and modernise the enforcement of our world-leading legislation, because we have some of the best animal welfare standards in the world. This important and focused bill will have real impact on the ground, as soon as it comes into force later this year. It will send a strong message that animal cruelty and wildlife crime of any kind will not be tolerated.

Kenny Gibson best highlighted the contrast that we currently have when he pointed out that, right now, someone can receive a harsher penalty for fly-tipping than for some of the most unthinkable acts that are carried out against animals, which he outlined in his speech.

Finlay Carson

Given the restricted nature of what we are dealing with in this bill and the long list of other bills, including members’ bills, that are coming forward, does the minister agree that a fuller review of the 2006 act should have been considered? Does she agree that, as Christine Grahame mentioned, there was the potential to consolidate the legislation to make it slightly simpler to navigate?

Mairi Gougeon

I know that Finlay Carson raised that point in his contribution earlier. However, I hope that I outlined in my opening speech all the other complementary measures that we need to take. The measures that we are introducing today require primary legislation; others require secondary legislation. A number of different areas need to be looked at, but we are doing this in the most streamlined and consistent way we can.

We heard from Stuart McMillan about the truly horrific crimes that have taken place, which emphasises again why these proposals are so important and why the penalties need to better reflect the seriousness of the crimes. I am happy to reiterate what I stated in my letter to him, which is that, because the crimes will be considered to be serious, the time bar will not apply. That is a vital measure that we are introducing.

The bill will reduce the burden on the court system, enforcement officials and the police. However, more importantly, it will better protect the vulnerable people and animals that are involved in these often troubling animal welfare situations. The bill is welcomed by stakeholders and has strong support from the public, and I hope that its provisions will lead to behaviour changes that further reduce the incidence of animal cruelty and wildlife crime.

Members highlighted a number of issues in relation to the bill. In closing, I will try to cover them, as well as some of the issues that came out of the stage 1 report, as best I can. I will start by picking up on a few of the points that Gillian Martin raised on behalf of the Environment, Climate Change and Land Reform Committee. She highlighted the penalties that we have outlined for wildlife crimes, as did Claudia Beamish, Colin Smyth and a few others in the chamber. I will explain a bit more about the rationale for the position that we reached in determining the penalties for wildlife offences.

There are more than 200 wildlife offences across many pieces of legislation. The approach to increasing penalties for this area of crime was to offer a proportionate maximum level for crimes that involve direct unnecessary suffering, which would be similar to offences under sections 19 and 23 of the Animal Health and Welfare (Scotland) Act 2006. The penalties for the offences that we identified as having the most severe welfare impact, such as the killing or harming of a wild animal, have been increased to a maximum of five years’ imprisonment, or an unlimited fine, or both, under solemn conviction, as recommended by Professor Poustie in his review of wildlife crime.

We then considered a range of offences that may indirectly cause harm to a wild animal, such as the disturbance of, or damage to, habitats. For those offences, we have proposed that the maximum penalty be raised to 12 months’ imprisonment, or a £40,000 fine, or both, under summary conviction. When it comes to those kinds of offences, it is also important to remember that, if a person commits an offence in respect of more than one animal, egg and/or nest, there is currently provision in the Wildlife and Countryside Act 1981 for the court to consider each animal, egg, or nest separately when sentencing. It would therefore be possible for a fine to be imposed up to the new maximum of £40,000 in respect of each animal, egg and/or nest.

What we have proposed is proportionate, it is similar to some of the higher penalties that are found elsewhere in the world and it is in line with what was recommended as part of the Poustie review. If members have particular proposals that they want to raise with me, I am more than happy to discuss those with them. As I said, I know that the issue was highlighted by a few members around the chamber today.

Claudia Beamish

The minister may well be going to touch on this, but is she able to respond to Fisheries Management Scotland’s concerns about the iconic salmon species, either today or in the near future before stage 2?

Mairi Gougeon

That issue is covered in my copious notes, and I will give a direct response to Claudia Beamish on it, should I have time.

Rachael Hamilton, Christine Grahame and others touched on fixed-penalty notices. I assure members that those valuable additional and proportionate enforcement tools will be used for technical and minor offences only. The bill limits their use to offences with a maximum penalty of six months’ imprisonment, so they will not be used for the more serious animal welfare and wildlife offences that attract higher maximum penalties. I emphasise that we are not creating those fixed-penalty notice regimes as part of the bill. The bill will establish the powers to create those regimes but, as they progress, they will be subject to parliamentary scrutiny through the affirmative process. When I attended the committee, I stated that I will work with it on developing the regulations, and I remain more than happy to do that, because I want us to work together and get them right.

Finlay Carson and a few other members raised the issue of Scottish sentencing guidelines. As Mr Carson mentioned, the sentencing guidelines are, rightly, the responsibility of the Scottish Sentencing Council. Annie Wells touched on the fact that, in May 2019, the SSC announced that guidelines on wildlife and environmental crimes were being deferred to allow the council to deal with sexual offences. The council also highlighted that a delay would be needed anyway, because guidelines cannot be prepared while penalties are being changed. I am happy to reiterate what I said in response to the committee’s report. I will write to the SSC to draw its attention to the discussion that we have had today, which will help to inform its considerations of its future work programme.

On vicarious liability, after careful consideration and discussions with stakeholders, my officials and I have not been able to identify any further offences to which we think it would be useful or appropriate to extend the offence of vicarious liability. However, as I said, I would welcome suggestions on other particular offences that warrant that, and I will happily consider the matter further. Claudia Beamish might have made a suggestion earlier—[Interruption.]

The Deputy Presiding Officer

Excuse me, minister, but there is a terribly irritating low murmur going round the chamber. The minister has only a couple of minutes left in responding to the debate, so I ask members to listen to her, please.

Mairi Gougeon

Rachael Hamilton mentioned the potential for a pesticide amnesty, which I believe is an issue that she raised in the committee. There have been two previous pesticide amnesties in Scotland, so we think that it is unlikely that a further scheme would be effective, because those who wished to dispose of their stock have had ample opportunity to do so. We have sought the views of Science and Advice for Scottish Agriculture, the rural payments and inspections division, Police Scotland and the Crown Office and Procurator Fiscal Service on the need for and effectiveness of undertaking another disposal scheme, and it was felt that there would be little merit in that. A point was raised about considering increasing the penalties for holding illegal pesticides. Again, I am open to having a conversation on that with members.

Christine Grahame

Will the minister take an intervention?

Mairi Gougeon

I am sorry, but I do not have enough time.

Almost every member who spoke raised the issue of additional powers for the SSPCA relating to wildlife crime. To consider that as part of the bill would mean pausing the process to investigate the issues fully and gather more evidence before coming back to Parliament. It is not simply a case of granting more powers. Doing so could mean changes to the SSPCA as an organisation, which obviously needs to have the time to consider that. Given the amount of work that has to be done, my fear is that that approach could significantly delay the bill to the extent that there might not be sufficient time to complete its passage in the current parliamentary session. I want to ensure that the issue gets the time and detailed consideration that it deserves, so I have already given a commitment, which I am happy to reiterate today, that it will be investigated. I hope that members will be content with that assurance.

I hoped to be able to touch on a number of other points, one of which was the point that Claudia Beamish raised about wild salmon. I will respond to her about that.

One important final point that I want to touch on is the issue that Colin Smyth raised in an intervention on Claudia Beamish about the appeal process when animals are seized. It is important to highlight that the decision to appeal will have to be made within three weeks, and that the onus will lie with the owner to make the appeal and to pay the court fee for lodging it. That is a complete change from the current process. Also, the decision on the appeal will be final, and there will be no further appeal beyond that. Therefore, the process will be much more expedited—infinitely more so than it is at the moment. Further, compensation will be considered entirely separately, so that will not hold up any proceedings.

I thank all members for their contributions. The strength of feeling on the issue is clear, as is the passion that we all have for the welfare of animals and wildlife in Scotland. I am pleased that the bill has attracted wide support from stakeholders and from members. I emphasise that, although I could not get through all the points that I wanted to, my door is always open. I am happy to meet members to discuss potential amendments prior to stage 2 to consider how we can improve the bill. That offer stands for those who raised issues that I did not get the chance to cover and which they wish to discuss further.

I hope that members will join me in supporting the general principles of the bill.

The Deputy Presiding Officer

That concludes the stage 1 debate on the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill.

The Presiding Officer (Ken Macintosh)

There is just one question to be put as a result of today’s business. The question is, that motion S5M-21200, in the name of Mairi Gougeon, on the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill, be agreed to.

Motion agreed to,

That the Parliament agrees to the general principles of the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill.

The Convener (Gillian Martin)

Good morning and welcome to the 11th meeting in 2020 of the Environment, Climate Change and Land Reform Committee.

Today’s business is consideration of the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill at stage 2. We are joined by the Minister for Rural Affairs and the Natural Environment, Mairi Gougeon, and her officials, whom I welcome. We are also joined by Colin Smyth MSP and Maurice Golden MSP. I welcome you both, too.

We have a lot to get through this morning, so the meeting will work well if we take things slow and steady. When I call someone to speak, please take a short pause before you start, to allow your microphone to be switched on.

Everyone should have a copy of the bill as introduced and the marshalled list of amendments, which sets out the amendments in the order in which they will be disposed of. Members also have the paper with the groupings of amendments.

I remind members that requests to speak should be made by typing “R” in the BlueJeans chat function, after I call each group of amendments. Please speak only when I have called your name.

Only committee members are eligible to vote. We will use the BlueJeans chat function to vote. If, when I read out the result of the vote, you think that your vote has been incorrectly recorded, please let me know that as soon as possible. I will pause to provide time for that. If we have tied votes on an amendment, as convener I will vote in the same way as I voted in the division. I will do that consistently throughout the process.

Should time be against us and we do not complete consideration of the amendments by 1 pm, we will continue consideration of the bill at our next meeting.

If we lose the connection to any member or to the minister, I will suspend the meeting until we reconnect. In the unlikely event that reconnection is not possible, we will reschedule stage 2 consideration. I will suspend the meeting for five minutes for a comfort break at a suitable point—probably around 11 o’clock.

I strongly encourage short and succinct contributions from everyone who speaks, if that is at all possible.

Before section 1

The Convener

Amendment 65, in the name of Colin Smyth, is in a group on its own. I refer members to the correction slip that has been issued in relation to the amendment.

Colin Smyth (South Scotland) (Lab)

Amendment 65 would extend the scope of the Animal Health and Welfare (Scotland) Act 2006 to include cephalopods and decapods—that is, animals such as octopuses, squids, crabs and lobsters—as protected animals. Such animals are not currently covered by the 2006 act and therefore receive no protection under it.

The Scottish Government has indicated its willingness to consider such a change, should appropriate scientific evidence become available. There is significant evidence that those animals are sentient, intelligent and capable of experiencing pain. In 2007, in his paper, “Cognitive ability and sentience: Which aquatic animals should be protected?”, Professor Donald Broom concluded:

“There is evidence from some species of fish, cephalopods and decapod crustaceans of substantial perceptual ability, pain and adrenal systems, emotional responses, long- and short-term memory, complex cognition, individual differences, deception, tool use, and social learning. The case for protecting these animals would appear to be substantial.”

Cephalopods, in particular, are known to be incredibly intelligent; octopuses have large and well-developed brains, and are known to be capable of learning, navigating mazes and solving puzzles.

Similarly, decapod crustaceans have been found to be capable of experiencing pain, and animals such as lobsters have advanced central nervous systems. In fact, a 2005 paper on the welfare of animals, by the European Food Safety Authority, designated cephalopods and decapods as category 1 animals, which are animals for which

“The scientific evidence clearly indicates ... that animals in those groups are able to experience pain and distress”.

The Animal Health and Welfare (Scotland) Act 2006 provides a specific exemption for anything that occurs in the normal course of fishing, so I stress that amendment 65 would not have an adverse impact on the fisheries sector or other sectors. They would simply be required to maintain the same safe standards of care as we do for all protected animals.

Making cephalopods and decapods protected animals under the 2006 act would reflect the evidence of their sentience and ensure that those animals would be protected from cruel treatment and inhumane slaughter methods. They are protected by animal welfare legislation in a number of other countries, so the change would simply bring Scotland into line with international best practice, and it would reinforce our reputation as a world-leading country for animal welfare.

If the minister is not willing to support amendment 65 and is not convinced by what I believe is clear evidence, I hope that she will clarify what would be considered to be sufficient evidence to make the change. I also hope that she will assure us that the Scottish Government will make the change as soon as evidence emerges that satisfies her.

I move amendment 65.

Mark Ruskell (Mid Scotland and Fife) (Green)

I welcome amendment 65 from Colin Smyth. I was on the predecessor committee, which dealt with the Animal Health and Welfare (Scotland) Act 2006. We heard a lot of evidence that some species that do not have backbones—invertebrates—can, nevertheless, feel pain and distress, and can show complex behavioural patterns. Amendment 65 would bring us up to speed and into line with European Union and United Kingdom legislation on scientific procedures. That legislation recognises that decapods and cephalopods are sentient and need to be protected under animal welfare legislation. It would be a welcome catch-up. The evidence exists, so we should be bringing such species into line with the protection that exists for vertebrates.

The Minister for Rural Affairs and the Natural Environment (Mairi Gougeon)

The purpose of amendment 65 is to expand the definition of “animal” as it is in section 16 of the 2006 act. However, the 2006 act allows for such a change to be made under regulations. That is why I will not support amendment 65.

A scientific review of the evidence for sentience in cephalopods and decapods will be held in the near future. The outcome of that can then be considered by the UK animal welfare committee and our new Scottish animal welfare commission. If that review illustrates that cephalopods and decapods require such protection, I will, of course, be happy to introduce the necessary consultation and potential statutory instrument for the committee’s consideration under the affirmative procedure.

I will not support amendment 65, so on the basis of what I have said, I ask Colin Smyth to seek to withdraw it.

Colin Smyth

I welcome the Government’s willingness to consider the issue and am happy not to press amendment 65 on that basis. However, I reiterate the point that there is already sufficient evidence to merit an urgent review of the scope of the 2006 act. I understand that, as the minister said, the Department for Environment, Food and Rural Affairs is undertaking research into the sentience of cephalopods and decapods. I hope that it will confirm what other research shows—that they are sentient animals.

I will not press amendment 65, but I hope that we get an update on the outcome of the research from the minister, posthaste.

The Convener

Thank you. Can you confirm that you wish to withdraw amendment 65?

Colin Smyth

Yes.

Amendment 65, by agreement, withdrawn.

Section 1—Prevention of harm to animals: penalties for offences

The Convener

Amendment 67, in the name of Colin Smyth, is grouped with amendment 99.

Colin Smyth

My notes say that amendments 66 and 63 are next, but that could be wrong.

Amendment 67 seeks to create more consistency in use of disqualification orders. During stage 1, a number of stakeholders highlighted the need for greater clarity on when those orders should, or should not, be used.

Amendment 67 seeks to introduce an automatic lifetime disqualification order for those who are sentenced to the maximum penalty for animal cruelty. It calls for the Scottish ministers to create regulations that set out where those orders should otherwise be used, in order to support consistency and proportionality in their use.

I appreciate that a disqualification order is not always appropriate or useful, so my amendment 67 also calls for regulations that would clarify when disqualification orders should be waived, while making it clear that, in such instances, the convicting court must state the reasons for doing so.

Amendment 67 would create a crucial way of achieving transparency. I have chosen to take a largely enabling approach, in order to acknowledge the need for flexibility and to give ministers the opportunity to fulfil prior fishing regulations.

Amendment 99 by Maurice Golden similarly aims to address concerns that have been raised about use of disqualification orders. It calls on the courts to consider a lifetime disqualification for those who receive the maximum penalty, and would require the courts to provide a reason when they do not do so. I do not disagree with Maurice Golden’s amendment; I believe that it would be an improvement on the current law. However, it is not as comprehensive as my amendment 67 and would not do anything to clarify use of disqualification orders outwith the rare instances in which the maximum penalties are issued.

Maurice Golden (West Scotland) (Con)

Amendment 99 would provide a duty on courts to consider a lifetime disqualification from owning animals for people who receive the maximum penalty for relevant offences. In such circumstances, the court will almost certainly be dealing with the worst cases of animal cruelty. As such, I believe there would be an intention among the public—

The Convener

I am sorry, Maurice: I have to stop you. I turned two pages instead of one, earlier. I had two pages stuck together. I hope that it will be the only mistake that I make today. I am going to go back. Colin Smyth was correct to say that I should have called amendment 66. The clerks have now corrected me. I will allow Colin a few seconds to get himself together. I apologise to everyone.

Amendment 66, in the name of Colin Smyth, is grouped with amendment 73.

Colin Smyth

Thank you, convener. The good news is that when we get to amendment 67 I will be able to refer members to my previous comments.

Amendments 66 and 73 aim to make breaches of laws related to licensing subject to new higher maximum penalties. The introduction of five-year sentences for animal cruelty is a key aim of the bill. As the bill stands, that applies to only two offences. All other offences remain subject to only six months’ imprisonment or maximum fines of £5,000.

My amendments 66 and 73 would make the new maximum penalties cover any offences that are created in regulations that are made under section 27 of the Animal Health and Welfare (Scotland) Act 2006. The enabling powers in section 27 are very broad and could underpin the creation of a wide range of very serious offences and unlicensed activities in settings including breeding, animal sanctuaries and pet shops.

The case for higher penalties is as clear in this matter as it is in any in which there is the potential for harm on a mass scale. Such offences could involve profitable businesses, which means that fines should be high enough to act as a deterrent. Amendments 66 and 73 would increase the maximum penalty for those offences, while maintaining the options of summary conviction and lower penalties. The amendments would not mandate a higher penalty, but would simply give flexibility to issue one where appropriate.

I move amendment 66.

The Convener

No other member has indicated that they wish to speak, so I call the minister.

Mairi Gougeon

Amendments 66 and 73 would set the maximum penalties that would be available under animal licensing regulations at the same level as the increased penalties that the bill makes available for the most serious unnecessary suffering in animal-fighting offences. Setting a maximum penalty of five years in prison and an unlimited fine for all possible future licensing infringements would not be proportionate. There are other issues.

Amendments 66 and 73 would prevent Parliament from treating each piece of future licensing legislation on its merits, and from considering at that time what the most appropriate penalty regime would be. That would bind the hands of future parliamentary decision making, which would not be proportionate because future licensing regimes are likely to include offences that are of varying degrees of seriousness. It would therefore not be appropriate to dictate that the highest penalties should apply in all circumstances.

For example, the proposed licensing legislation on animal sanctuaries, dog, cat and rabbit breeding and pet sales is currently being drafted, and it seems likely that many of the associated offences will be relatively minor and technical, and will not directly involve harm to animals. They could include failing to renew a licence or not complying with all the conditions of a licence. A maximum five-year prison sentence for someone who fails to renew a dog-breeding licence would clearly be excessive.

Another important point is that, as the committee knows, the bill will introduce the power to develop new fixed-penalty notice regimes, which will cater for a wide range of scenarios. That development will be subject to affirmative procedure and will devise the most suitable penalties for each regime. Licensing legislation is likely to be particularly suitable for future FPN regimes under which, as I have said, the offences might be relatively minor and technical, and might not involve direct harm to animals. It will be possible to develop FPN regimes only for offences for which the maximum penalty is no more than six months’ imprisonment or a level 5 fine.

Setting the maximum penalty for all future licensing legislation at a higher level would deprive the Scottish Government of opportunities to develop such regimes in an area where they would be particularly suitable, and where they would provide a proportionate and cost-effective way of improving compliance with the legislation. That is why I cannot support amendment 66, so I ask Colin Smyth to seek to withdraw it.

Colin Smyth

I believe that the broader and potentially very serious nature of the offences that can be created under section 1 of the bill means that it is important to provide as much flexibility as possible on fines, and to have a more robust and higher penalty, if that is required. The potential for making profit in licensed activities means that higher fines must be on the table so that they are a strong enough disincentive. Sentencing guidelines can be used to clarify whether higher penalties would be appropriate in order to ensure that they are not applied unfairly, just as for offences under sections 19 and 23 of the 2006 act.

However, I acknowledge that someone can be charged with minor breaches of the conditions of licence. Also, the minister said that regulations on dog, cat and rabbit breeding are in the pipeline. Other licensing regulations are due on pet vending, performance animals and so on. The minister has emphasised that more minor offences might be committed in those areas, but I ask her to make it absolutely clear ahead of stage 3 whether the Government will consider stronger penalties as an option as it develops regulations. I will not press amendment 66, but I note that I could bring the issue back at stage 3, if the Government does not do that.

Amendment 66, by agreement, withdrawn.

The Convener

As previously trailed, amendment 67, in the name of Colin Smyth, is grouped with amendment 99.

Colin Smyth

I will keep my comments very short. Amendment 67 seeks to create more consistency in the use of disqualification orders.

I am happy to support amendment 99, in Maurice Golden’s name, which similarly aims to address the concerns that have been raised about the use of disqualification orders. I do not disagree with his amendment; however, my amendment 67 is more comprehensive, as it does not do anything to clarify the use of disqualification orders outwith the rare instances when the maximum penalties have been issued. I will leave it at that, convener.

I move amendment 67.

Maurice Golden

Amendment 99 relates to the provision of a duty on the court to consider a lifetime disqualification from owning animals for those who receive the maximum penalty for relevant offences. In such circumstances, the court will certainly be dealing with the worst cases and, as such, I believe that there will be a public expectation that those involved are not fit to own or care for animals and that the best way to ensure that future offences are prevented is to disqualify those people from animal ownership.

That position is broadly shared by animal welfare organisations such as the Scottish SPCA, the Dogs Trust and OneKind. In such cases, the court would be mandated to consider a lifetime disqualification and, if one is not imposed, to state the reasons for declining to impose one. I believe that that is a balanced approach that allows the court some leeway to take account of exceptional circumstances while retaining the welfare of animals as a consideration in sentencing decisions.

I welcome the spirit in which Colin Smyth lodged amendment 67, but I believe that amendment 99 is a more workable and practical solution to broadly the same issue.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

I will make a technical point. Amendment 67 addresses only the issue of ownership of animals, which would create, if it were to be agreed to—and I am not likely to support it for other reasons—the option for people whom we would not wish to have care of animals to have animals in their care. Restricting the issue to ownership is not an adequate way to achieve the intention of the amendment.

Mairi Gougeon

I completely understand the motivation behind the amendments, and I am absolutely mindful of the concerns that have been raised about whether disqualification orders should be used more frequently and consistently by the courts than they currently are.

However, I cannot support either amendment. They would impose a requirement on the courts to consider a lifetime disqualification from keeping animals for those people who receive the maximum available penalty for animal welfare offences or, in the case of Maurice Golden’s amendment 99, the full range of animal health, wildlife and wild plant offences.

Although there are some fundamental problems with the drafting of both amendments, that is not my principal objection to them. Members will be aware that, under section 40 of the 2006 act, courts are already able to issue a disqualification order to ban someone who has been convicted of an animal welfare offence from keeping or owning animals or from being involved in a wide range of activities that involve animals. That disqualification can be for any time period, up to and including a lifetime ban, which rightly provides the courts with the flexibility to address the particular circumstances of each case and the likely risk that each offender could pose to animals in future.

Further, section 40(5) of the 2006 act already requires the courts to state their reasons if they decide not to make a disqualification order for the relevant offence. That puts the onus on the courts to consider imposing a disqualification order and to then explain any decision not to impose such an order, which encourages the use of such orders where appropriate.

Disqualification orders are routinely raised in animal welfare cases. In recent years, more than half the court cases in which the Scottish SPCA has been involved have resulted in a disqualification order, with most being for five years or more.

I know that the Scottish SPCA has concerns about the apparent lack of consistency in the lengths and types of disqualification orders that the courts have issued in different cases. However, the Scottish SPCA understands and accepts the important and long-established principle that sentencing in any given case is a matter for the courts, which take into account all the facts and circumstances of the case before reaching a decision within the overall legal framework that is provided by the Parliament. Any new requirement for the courts to follow as they undertake their sentencing responsibilities has to be a matter for the judiciary or the independent judicially led Scottish Sentencing Council. If Parliament were to place new obligations on sentencing, that would run the risk of threatening that judicial independence, so such moves should be resisted.

It is worth noting that, if and when the changes to the overall legal framework for sentencing that are proposed in the bill are enforced, the Scottish Sentencing Council will look at the area, with a view to considering the guidelines. That seems an appropriate way to proceed that does not threaten judicial independence.

In saying all that, I recognise that the area is of concern, particularly for Colin Smyth and Maurice Golden, who have lodged amendments. I am willing to work with them to consider whether it will be possible to lodge a stage 3 amendment to section 40 of the 2006 act, in order to strengthen the existing requirement on courts to explain their reasons for deciding not to impose a disqualification order for a relevant offence. If both members are content with that, I invite Colin Smyth to withdraw amendment 67 and Maurice Golden not to move amendment 99, because, for the reasons that I have outlined, I cannot support the amendments.

Colin Smyth

Both amendments in the group try to address a clear issue that exists in the use of disqualification orders, and I believe that both would be an improvement.

My amendment 67 looks to create as much consistency and clarity in the process as possible, while recognising the need for flexibility. Given that the issue is complex and requires proper consultation, I have opted for a largely enabling amendment to allow that work to take place. My aim is to set out clearly when it is appropriate and proportionate to use disqualification orders, right up to an automatic lifetime ban for the most serious convictions. However, I recognise that a one-size-fits-all approach will not work, and my amendment 67 is clear that there must be a mechanism for waiving a disqualification order when appropriate, provided that an explanation is given.

As there are two amendments on the issue, I am happy to discuss changes to the specific wording of my amendment ahead of stage 3. Given the Government’s assurances about the general aim of my amendment and its willingness to discuss the matter further, I will not press amendment 67. However, I make it clear that I intend to lodge an amendment at stage 3, and I hope to work with Maurice Golden and the Government ahead of that stage, so that they can have input into the final wording.

Amendment 67, by agreement, withdrawn.

The Convener

Amendment 68, in the name of Colin Smyth, is grouped with amendments 69 to 72.

Colin Smyth

As with the amendments in group 2, all the amendments in this group aim to expand the offences that are covered by the increased maximum penalties that the bill will introduce. I fully support the introduction of five-year sentences and unlimited fines for the most serious animal welfare crimes but, as it stands, the change will not be applied widely enough.

The amendments in the group seek to expand the offences to which the new maximum penalties will apply. Amendment 68 would increase the maximum penalty for offences relating to mutilation; amendment 69 would do the same for offences relating to the performance of cruel operations on animals; amendment 70 would do so for poisoning offences; amendment 71 would do so for offences relating to the failure to ensure the welfare of animals; and amendment 72 would do so for offences relating to abandonment.

There is clearly scope for serious harm to have been done under all those offences, and the current maximum penalties of six months’ imprisonment or a fine of up to £5,000 simply do not reflect that. Increasing the maximum penalty for such offences while retaining the options for a summary conviction or lower penalties will give flexibility to ensure that proportionate sentences can be issued, depending on the severity of the crime that has been committed.

The amendments shine a light on the diverse nature of cruelty offences, and highlight that not all of them are given the prominence that they should have in sentencing. For example, I cannot understand why abandonment is anything other than a cruelty offence; it should be placed in a higher category than in the 2006 act. The bill brings in fixed penalties for lesser offences, but a fixed penalty for abandonment, for example, would be totally unacceptable, given the potentially serious outcome of such an offence.

If the Government is not prepared to accept amendments that would bring in those stronger sentences for a wider range of offences, I hope that consideration might be given to the question whether an offence such as abandonment should still be seen as a lower-level offence in the categorisation of offences.

I move amendment 68.

Mairi Gougeon

By taking action to increase the penalties for the worst forms of animal cruelty, the Government is setting out clearly our commitment to properly protect the welfare of animals in Scotland.

We are taking bold action with the bill. If passed, it could mean imprisonment for up to five years for those who commit the most extreme offences, which involve unnecessary suffering, animal fighting and the worst sorts of wildlife crime. Fortunately, such horrific cases are rare, but they rightly attract considerable public interest as well as concern that suitable penalties should be available.

I acknowledge that some animal welfare groups believe that all animal welfare offences, of any sort, should attract the strongest possible penalties. However, as we take bold action to increase penalties, it is vital that we do so in a way that does not undermine long-established legal principles, which include the need for proportionality between the offence and the sentence.

Before setting out why it is not proportionate to include all those offences within the new penalty regime, I highlight from the outset that the most important feature of the 2006 act is that, if the circumstances of any offence involve unnecessary suffering, they can be prosecuted under section 19, which sets out the maximum penalties available under the act. That important feature already provides robust protection across the board. As we clamp down on animal cruelty, I am keen to ensure that we retain the long-established and proportionate two-tier approach of lesser offences continuing to be subject to a lesser penalty.

The offences in sections 20, 21, 22 and 29 of the 2006 act are rarely prosecuted. I completely understand that their terminology is very emotive, but it is important that we consider that what that amounts to in practice tends to relate to some of the lesser, more technical offences.

For example, a more accurate description of the offence that is described as “mutilation”—a very emotive term—is that it relates to the carrying out of any procedure that interferes with sensitive tissues or the bone structure of an animal. That might include routine procedures such as micro-chipping or ear tagging, which are permitted by regulations that control the way in which they are done. Accordingly, a failure to carry out procedures in accordance with the regulations is an offence under section 20, which could include incorrectly inserting an identification ear tag in a farm animal, for example.

Regarding abandonment, which Colin Smyth mentioned, an offence under section 29 could include temporarily leaving an animal unattended without making adequate provision for its welfare, which could include situations in which no harm is caused to the animal. In those circumstances, a five-year prison sentence would, quite clearly, be disproportionate.

The offence in section 24 of the 2006 act of failing to take reasonable steps to ensure that the welfare needs of an animal are met

“to the extent required by good practice”

is most commonly used in prosecutions for behaviour that might affect the welfare of an animal but which does not amount to causing unnecessary suffering. That can often occur due to ignorance or misunderstanding, rather than intentional neglect or cruelty. That distinction is very well understood and accepted by the enforcement authorities, which include the Scottish SPCA, local authorities and the Animal and Plant Health Agency. They know that, if the circumstances of an offence involve unnecessary suffering, they can be prosecuted under section 19 of the 2006 act, and can attract the higher penalty.

Although the offences that we are considering have the potential to involve harm to animals, it is vital that our penalty regime is proportionate. In any case, where unnecessary suffering is actually caused, the new, higher maximum penalties will already be available.

Another important point to remember is that, if Colin Smyth’s amendments in this group are agreed to, they would—as was the case with amendments 66 and 73, which we discussed earlier—prevent ministers from using the powers in section 2 that relate to fixed-penalty notices, because FPNs can be exercised only in relation to offences for which the maximum penalty on conviction does not exceed six months’ imprisonment. Colin Smyth’s amendments would remove our ability to deal with those lesser offences, so I cannot support them, and I urge the committee not to support them, either.

The Convener

I invite Colin Smyth to wind up.

Colin Smyth

Strengthening penalties for the most serious animal welfare crimes is one of the key aims of the bill. However, in my view, if any serious crimes continue to carry a maximum sentence of just six months, that aim will not be achieved. It does not make sense that some animal welfare crimes will carry a sentence of up to five years in prison or an unlimited fine, while offences such as that of mutilation, which can be severe, will carry a maximum sentence of six months or a fine of £5,000.

My amendments would not mean that minor crimes under the provisions in question would have to be dealt with differently—when a short sentence or a small fine was appropriate, that would still be what was issued. They would simply mean that, when a higher sentence was needed, the scope would exist to issue one. As I indicated in relation to amendments 66 and 73, clear guidance would need to be provided to clarify when higher penalties would be appropriate to ensure that they would be used appropriately.

However, I recognise that the most severe offences can be charged on the ground of causing unnecessary suffering. The challenge is ensuring that that would continue to be the case and that such offences would become subject to the new maximum sentence. It is equally important that we ensure that offences such as abandonment are not covered only by the issuing of fixed penalties; I do not share the minister’s view that abandonment can be seen as a relatively minor breach of the law. I would therefore welcome further discussion with the Government about how that can be achieved.

On that basis, at this stage, I will not press amendment 68 or move my other amendments in the group, given that we have a period of time to discuss the issue before stage 3.

Amendment 68, by agreement, withdrawn.

Amendments 69 to 73 not moved.

Section 1 agreed to.

Sections 2 and 3 agreed to.

Section 4—Fixed penalty notices for offences relating to animal health

The Convener

Amendment 3, in the name of the minister, is grouped with amendments 4 and 5.

Mairi Gougeon

Section 4 of the bill at introduction provided for a general power to make provision in regulations for fixed-penalty notices to address animal health offences. The aim is to provide an additional level of enforcement that could be delivered without the intervention of Scottish courts while still providing a meaningful penalty for those who breach animal health rules.

The bill contains provisions to allow the Scottish ministers to create such a scheme for minor and technical animal welfare offences. We consider that similar provisions should be available for appropriate animal health offences. That uniformity in approach will provide clarity and consistency and send an important message that we expect all animals in all circumstances to be protected from harm. We held a consultation last autumn to test those proposals further, and the majority of respondents to it were supportive of the principle behind section 4.

Amendment 4 sets out the detail of how those powers will work in practice. The provisions are subject to strict limits but also allow sufficient flexibility to take account of any future changes to animal health legislation. Amendments 3 and 5 extend the provisions to include offences under the Bees Act 1980 and offences in any order that are made under that act. That ensures that fixed-penalty notices can be used, where appropriate, in respect of offences relating to the control of diseases of kept bees.

Prior to the bringing forward of secondary legislation to introduce a fixed-penalty notice scheme, further stakeholder consultation will be undertaken to help develop the details of the scheme and the range of offences to which it would apply. Any future regulations that make provision for the issuing of FPNs will be subject to the affirmative procedure and, as such, scrutinised by Parliament before being made, as is the case with animal welfare FPN provisions.

I move amendment 3.

Mark Ruskell

I have a brief question. I should probably declare an interest, as I am a beekeeper. In relation to the Bees Act 1980, as I understand it, amendment 3 increases the level of fine on summary conviction from level 3, which is £3,000, to level 5, which is £5,000. The minister outlined the issues about disease control. Does the Scottish Government have any concerns that compliance with the Bees Act 1980 is not high?

The Convener

I invite the minister to address that question, and to wind up.

Mairi Gougeon

I would be happy to get back to the committee with more information on Mark Ruskell’s question. Certainly, I have not been made aware of any particular issues with compliance with that act. Nonetheless, it is important that compliance is covered by any regime that we bring in to ensure that we have it.

Amendment 3 agreed to.

Amendments 4 and 5 moved—[Mairi Gougeon]—and agreed to.

Section 4, as amended, agreed to.

Section 5—Wildlife and Countryside Act 1981: penalties for offences

The Convener

Amendment 6, in the name of the minister, is in a group on its own.

Mairi Gougeon

In the course of considering the bill’s provisions, it was brought to my attention that there is an anomaly in section 15A(2) of the Wildlife and Countryside Act 1981, which governs the use of pesticides and biocides. The purpose of amendment 6 is to address that anomaly by extending the defence in section 15A(2) of the 1981 act to include European Union regulation (EC) 1107/2009, which governs the use of plant protection products—in essence, to extend the legitimate defence to the offence regarding plant protection products.

Currently, section 15A(3) of the 1981 act empowers the Scottish ministers to prescribe, by order, ingredients of pesticides that it is an offence to possess. The power was used to make the Possession of Pesticides (Scotland) Order 2005, which prescribes a list of eight active ingredients that it is an offence to possess. Although the 2005 order refers to pesticides, the banned ingredients relate to substances that can be used in plant protection products.

PPPs are used to protect plants from pests, diseases and weeds and might be agricultural pesticides or biocidal products that control harmful or unwanted organisms through chemical or biological means. Examples of biocides are disinfectants, food preservatives, hand sanitiser and insect repellents.

Under section 15A(2) of the 1981 act, a defence is available to the offence of possession of pesticides

“if the person shows that the possession of the pesticide was for the purposes of doing anything in accordance with—

(a) any regulations made under section 16(2) of the Food and Environment Protection Act 1985 (c. 48), or

(b) Regulation (EU) No 528/2012 of the European Parliament and of the Council.”

Let me give an example. Some of the ingredients in the 2005 order can still be used in rodenticides, so a professional, trained pest controller could show that their possession of a product was in accordance with the regulations, if they were using the product for its permitted purpose and in full compliance with the conditions that governed its use.

Amendment 6 will extend section 15A(2) of the 1981 act to ensure that a defence is also available if the person can show that the offence was for the purpose of doing anything in accordance with regulation (EC) 1107/2009 of the European Parliament and Council.

Amendment 6 will have no immediate effect, because the 2005 order does not currently list any substances that are approved for use in plant protection products under the EU PPP regulations. However, our adding a reference to the PPP regime at this time will enable us to add any substances that are covered by that regime to the 2005 order through secondary legislation, should the need arise. That is important, because it will allow a fast policy response, should it be discovered that new pesticides are being used for wildlife crimes, for example.

Amendment 6 will also allow us to add pesticides to the 2005 order while preventing the unintended consequence of criminalising a person who legitimately uses a plant protection product under the EU plant protection regime.

I move amendment 6.

Amendment 6 agreed to.

The Convener

Amendment 74, in the name of Claudia Beamish, is grouped with amendments 75 to 78, 95 and 96.

Claudia Beamish (South Scotland) (Lab)

I will speak to my amendments and, briefly, to Mark Ruskell’s amendment 95.

My amendments in this group are intended to ensure that wildlife crimes and crimes against wild mammals can be considered for vicarious liability prosecution, where there is evidence of a prosecutable crime. It is important that the landowner or occupier who has the legal right to carry out management activities on the land can be prosecuted under vicarious liability. That might act as a deterrent to those few landowners who do not respect the law. The amendments apply to offences that are found in the Wildlife and Countryside Act 1981 and the Wild Mammals (Protection) Act 1996.

I will talk about my amendments briefly. They would mean that vicarious liability would be applicable to various offences under sections of the 1981 act, including those on the “Sale etc of live or dead wild birds, eggs etc”; the “Registration etc of certain captive birds” and their eggs; the “Protection of captive birds”, which relates to ensuring that they have a sufficient cage size; the “Protection of certain wild animals”, which includes the protection of shelters and the prevention of poaching; the “Protection of wild hares etc” in the close season; the “Prohibition of certain methods of killing or taking wild animals”; the “Prevention of poaching: wild hares, rabbits etc”; the “Protection of wild plants”; the “Prohibition on keeping etc of invasive animals or plants”; and the “Prohibition on sale etc of invasive animals or plants”. Finally, the amendments would also cover offences under section 1 of the Wild Mammals (Protection) Act 1996, which lists the ways in which causing unnecessary suffering to any wild mammal can occur.

I took the decision not to include marine mammals in the list not because they are any less precious, but because ownership of them is such a complex issue, as they are at sea. The minister has now indicated that she will lodge amendments at stage 3 in relation to the killing of seals. Therefore, it might be appropriate to discuss the application of vicarious liability to that with her between stages 2 and 3. However, I ask the minister whether at this stage she is in a position to comment on a possible Scottish Government amendment, and how that can be consulted on and scrutinised by our committee.

I also decided that it was not appropriate to include the protection of deer in my amendments, as deer management will continue to demand appropriate culling. Therefore, in my view, it would be too complex to include them in the section that is being considered on vicarious liability.

I have made individual amendments for each species—and I hope that that was the correct way to do it—to give members and the minister the choice as to which ones they wish to take forward, if any. If passed, the amendments should send a strong statement of deterrence across Scotland to all those concerned.

I will listen with care to Mark Ruskell’s remarks on his amendment in this group.

I move amendment 74.

Mark Ruskell

Amendment 95 would introduce vicarious liability for offences relating to badgers. I appreciate and support Claudia Beamish’s attempt to apply vicarious liability more widely. However, I believe that the case for extension is strongest for badgers. Vicarious liability is about landowners taking responsibility for the actions of those who are working on their property, and badgers face a huge amount of persecution through the destruction of their setts.

I have heard of a number of cases—including some in Fife, which is in the region that I represent—in which it has been difficult to pin down liability because there are contractors, sub-contractors, agents and landowners all passing the buck. Perpetrators can get away with damaging badger setts because landowners are not liable and penalties are too low. In one case that took place in my region, a factor was simply given a warning letter that was written by the court following the damage of a sett.

Badger setts are being damaged and destroyed through building works or forestry operations, and I have heard of horrific cases in which tunnels have been blocked by soil, rocks, trees and brush, which has then caused the animals below to suffocate.

There are also examples of estates on which multiple “doughnuts” have been discovered. A doughnut is a large circular area of disturbed ground that is typically dug by a badger when it is caught in a snare and dies while it is struggling to break free. In one case, eight doughnuts were found on an estate, stretching back over a number of years. The landowner had clearly avoided taking action to prevent that from happening time after time.

Badgers are territorial animals that settle in particular areas. Their presence is easily identifiable because of their visible setts; it is virtually impossible for a landowner not to know that badger setts are there. Law-abiding landowners have nothing to fear from vicarious liability being applied to offences relating to badgers. However, those who allow sett destruction and persecution to take place need to know that the buck stops with them.

Mairi Gougeon

Vicarious liability was widely discussed during stage 1. I said at that point that, although I had not been able to identify any further offences to which I thought it would be useful or appropriate to extend vicarious liability, I would absolutely welcome the committee’s suggestion on any particular offences that members felt warranted such an extension.

I have given close and careful consideration to all the amendments that Claudia Beamish and Mark Ruskell have lodged, and I have a number of significant concerns with them, which I will lay out for you now.

Amendments 74 to 77 would extend vicarious liability to a range of offences, but I simply do not believe that the evidence is there to justify that extension. When vicarious liability was introduced under sections 18A and 18B of the Wildlife and Countryside Act 1981, it was because we believed that there was clear evidence that demonstrated the need for it in relation to offences against wild birds and their nests and eggs, and the use of banned pesticides. Extending vicarious liability to poaching, for example, would not make sense, because it is often the landowner or manager who is the victim of that kind of crime.

Likewise, I have heard no compelling reason why vicarious liability is needed for offences that relate to the protection of wild plants or the keeping or sale of invasive animals, and I have heard nothing that demonstrates the type of employer-employee relationship that would make it reasonable to hold the employer criminally liable for the acts or omissions of their employee in relation to such offences. I do not feel that we have evidence to show that landowners and managers have been complicit in those types of crimes.

We need to remember that vicarious liability is a type of strict liability. Where vicarious liability applies, it is sufficient to show that an employee committed an offence in the course of their employment for their employer to be held criminally liable for the acts or omissions of their employee, unless they are able to demonstrate a due diligence defence. It would therefore be a significant step to open up vicarious liability to other offences and extend the situations in which it applies.

Amendments 78, 95 and 96 open up the possibility of a vicarious liability prosecution to be taken against owners or occupiers of land who have a legal right to provide “management activities” on that land. “Management activities” has a wide-ranging and non-exhaustive definition in amendment 78 and opens up the possibility of a vicarious liability prosecution being brought against a host of individuals who would not be liable under the existing provisions in the 1981 act. Although we discussed during stage 1 the possibility of extending the offences to which vicarious liability could be applied, there were no discussions on widening the definition of to whom it could be applied. It would be inappropriate to make such far-reaching changes without first engaging in proper consultation or undertaking full impact assessments so that all the implications and ramifications of such a change could be fully understood.

It is also important to remember that it is already an offence for someone to knowingly cause or permit an offence under sections 6, 7, 9, 11 and 13 of the 1981 act and sections 1 to 4 of the Protection of Badgers Act 1992. Admittedly, that does not go as far as vicarious liability, but it means that, should an employer or land manager instruct an employee to commit one of those offences, they would be liable for that offence.

Having said all that, I think that there are some things in amendments 78, 95 and 96 that we could consider ahead of stage 3, but I cannot support the amendments as they are currently drafted.

Claudia Beamish raised a point about seals and referred to the letter that I sent to the committee about lodging a stage 3 amendment in relation to seals. This is not an ideal situation and that is not something that I would ordinarily do. In that letter, I offered the committee the opportunity to discuss this further with officials, if that is something that the committee wishes to do. I hope that you take up that offer so that officials can give you more detailed information about the potential for that amendment.

Finlay Carson (Galloway and West Dumfries) (Con)

We strongly disagree that the new provisions of vicarious liability add anything to existing laws. We do not accept the extension in the bill because it would appear to make the landowner liable for the actions of third parties, irrespective of whether he or she has paid due care and attention.

We accept the legal principles of liability, and agree that landowners can and should be held responsible in certain circumstances, but these amendments appear to make the landowner liable for the actions of third parties, irrespective of whether he or she has taken due care and attention. We will not support the amendments.

The Convener

Minister, I give you the opportunity to come back on any of that.

Mairi Gougeon

I am happy to move on, convener.

The Convener

I call Claudia Beamish to wind up and press or withdraw amendment 74.

Claudia Beamish

I thank those members who have contributed to the debate. If it is appropriate, convener, before I tell the committee my decision on my amendments, I want to comment briefly on Mark Ruskell’s amendment 95.

A landowner would definitely know about the existence of badger setts on their land, or they could easily be informed of it by those who manage their land. As Mark Ruskell said, there have been some serious cases of sett destruction. I would simply state that I support amendment 95.

I note what the minister said about poaching and invasive plants, and I take that point on those amendments.

As amendments 78 and 96, on those with the legal right to carry out management activities, widen definitions, I do not want to move them today because the minister said that consultation will be needed. On the section on traps and snares, I hope that it might be possible for the minister to consider something in relation to vicarious liability before stage 3. Convener, is it possible for the minister to comment on that, or have I left it too late?

The Convener

I am happy for the minister to answer that.

Mairi Gougeon

That is one area that I would certainly be happy to discuss with Claudia Beamish ahead of stage 3.

The Convener

Claudia, do you wish to press or withdraw amendment 74?

Claudia Beamish

I wish to withdraw it.

Amendment 74, by agreement, withdrawn.

Amendments 75 to 78 not moved.

The Convener

Amendment 7, in the name of the minister, is grouped with amendment 9.

Mairi Gougeon

It was brought to my attention that the bill needed to be updated to bring it into line with recent amendments to section 21 of the Wildlife and Countryside Act 1981, which provides the penalties for the offences in that act. Without this update, there would be a discrepancy in the section that provides penalties for all the offences in part 1 of the 1981 act.

After the bill was laid in Parliament, in September last year, the Wildlife and Countryside Act 1981 was amended by secondary legislation in order to enact the new EU invasive alien species regulations. The Scottish statutory instrument made changes to some sections in the 1981 act concerning the control and release of invasive non-native species, and it inserted a new offence of contravention of regulation (EU) 1143/2014, which covers the prevention, management, introduction and spread of invasive alien species.

As the bill was drafted prior to the SSI being laid, it does not include penalties for the offences inserted by those regulations. The present drafting of the bill is based on how section 21 of the 1981 act was set out prior to its being amended by the 2019 regulations. If these amendments were not made, the provisions would not make sense.

At the same time, we will increase the maximum penalties for the new offences so that they attract the same maximum penalties as the similar existing offence in section 14 of the 1981 act, which also deals with invasive alien species. That will allow sheriffs to issue equivalent sentences in cases in which multiple offences have been carried out across the 1981 act.

I move amendment 7.

Amendment 7 agreed to.

The Convener

Amendment 8, in the name of Claudia Beamish, is grouped with amendments 10, 79 to 90, 11 and 91.

Claudia Beamish

These amendments are about increasing maximum penalties and focus on offences relating to breeding sites and resting places, as found in section 1 of the Wildlife and Countryside Act 1981, and offences relating to illegal pesticides, as found in section 15A of the 1981 act.

I thank RSPB Scotland, the Scottish Wildlife Trust and, for their evidence on these amendments, Scottish Environment LINK and the Bat Conservation Society. The designated offences would now have a new penalty on summary conviction of imprisonment for a term not exceeding 12 months or a fine not exceeding £40,000, or both, or, on conviction on indictment, of imprisonment for a term not exceeding five years or a fine, or both.

Members may note that amendment 10 differs from the rest in terms of sentencing. I lodged the amendment in error, for which I apologise, and I will not move it.

The offences that I wish to include relate to the intentional or reckless damaging, destroying or obstructing of nests that are habitually used; taking or destroying eggs of certain wild birds; possession of certain dead wild birds or their eggs; disturbing nest building or nests with eggs or young, or birds with dependent young; disturbing lekking, which I found out is competitive displays to attract mates; harassing any wild bird in schedule 1A to the 1981 act, which is a list of specific birds of prey; damaging, destroying or obstructing the shelter of certain wild birds; disturbing certain wild animals while they are occupying shelter; possession of pesticides containing one or more proscribed active ingredients; and knowingly causing or permitting the possession of said illegal pesticides.

In its stage 1 report, the committee recommended that the Scottish Government

“reconsiders its approach to ... resting places and breeding sites”,

as crimes involving those can “have equivalent outcomes”. The report says that

“the destruction of a habitat could be as fatal as directly harming or killing an animal.”

The unlimited fine is vital, because there are cases in which offenders can benefit financially from not following the law, through the development of land and so on, and in which providing alternative roosting sites would have a greater cost than the existing fine.

I appreciate the Government’s comments on a potential further amnesty on illegal pesticides. However, I consider that enough time has passed since those substances were banned and that the illegality of their possession, or of causing someone else to possess them, is well known. Those should be considered serious crimes, with a penalty that would properly deter. Such crimes can be a source of immense suffering in wild animals, and an increase in penalties will appropriately recognise their sentience and help to better deter the known harm to them.

I move amendment 8.

Mairi Gougeon

Given the extremely toxic nature of some of these substances, the continued illegal use of pesticides to poison animals poses a danger not only to domestic and wild animals but also to human health. As Claudia Beamish highlighted, during stage 1 the committee raised the matter of the appropriate level of penalty for the possession of banned pesticides. I said then that I was open to considering an increase to the maximum penalty.

Following careful consideration of the evidence, I am happy to support amendments 8 and 11, to increase the maximum penalties for the possession of proscribed pesticides to 12 months’ imprisonment or a £40,000 fine, or both, by summary procedure, and five years’ imprisonment or an unlimited fine, or both, by solemn procedure.

Turning to the amendments on the disturbance of nests and habitats, I will first make a technical comment. I draw the committee’s attention to the fact that, as drafted, the amendments do not repeal the penalties for the offences that are set out in the bill as introduced. Therefore, should the amendments be agreed to as they are currently drafted, the offences will have two conflicting maximum penalties—which would, of course, make the legislation unworkable.

On the amendments’ purpose, I share Claudia Beamish’s concerns about the impact that offences involving the disturbance of nests and habitats can have on wildlife, which is why I initially proposed to increase the maximum penalties for those offences to 12 months’ imprisonment or a £40,000 fine, or both. However, I appreciate that some committee members, as well as many other MSPs and stakeholders, hold the view that those proposals do not go far enough and that the impact of some of the offences can be significant, thereby warranting a higher penalty.

I am willing to listen to, and work with, the committee and Parliament to ensure that the bill affords the best protection for our wild and domestic animals. Although I cannot support all the amendments in the group as they stand, due to the technical issue that I have highlighted, I am prepared, after listening to the arguments that have been put forward, to give further consideration to the amendments relating to the disturbance of nests and habitats ahead of stage 3.

I support amendments 8 and 11, and I give Claudia Beamish a commitment that I will work with her on drafting an amendment for stage 3 should she be willing to not move the other amendments in the group.

Claudia Beamish

I am relieved to hear what the minister has said about illegal pesticides. The time has come to recognise that there is no excuse for storing or making use of those chemicals, which are dangerous to animals and our environment. I therefore press amendment 8.

I will be pleased to work with the minister and other members and stakeholders who have expressed an interest in and concerns about nests and resting places. I recognise that we will need to look again at the amendments before stage 3, because those that do not repeal previous provisions would, of course, not be appropriate—I thank the minister for her useful comment, as I was not aware of that. I will, therefore, not move those amendments today.

Habitats and resting places are fundamentally important to many animal species, and I look forward to working with the minister at stage 3 to provide better protection to animals.

Amendment 8 agreed to.

Amendment 9 moved—[Mairi Gougeon]—and agreed to.

Amendments 10 and 79 to 90 not moved.

Amendment 11 moved—[Claudia Beamish]—and agreed to.

Amendment 91 moved—[Claudia Beamish].

The Convener

The question is, that amendment 91 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Beamish, Claudia (South Scotland) (Lab)
Carson, Finlay (Galloway and West Dumfries) (Con)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Wells, Annie (Glasgow) (Con)

Against

MacDonald, Angus (Falkirk East) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

The Convener

The result of the division is: For 4, Against 3, Abstentions 0.

Amendment 91 agreed to.

Section 5, as amended, agreed to.

Section 6—Protection of Badgers Act 1992: penalties for offences

The Convener

Amendment 92, in the name of Colin Smyth, is grouped with amendments 93 and 94.

Colin Smyth

All the amendments in the group would increase the maximum penalties for interfering with or damaging a badger sett, in order to bring them into line with the penalties for harming a badger directly. Interfering with a badger sett can cause at least as much—and often more—damage as killing a badger directly, because it can cause elongated suffering and more drawn out and painful deaths, and it can harm entire groups of badgers and risk local extinction. The disruption of badger setts causes badgers to be crushed, suffocated and drowned, and dependent cubs are left vulnerable when adults desert damaged setts. Because the fines for such offences are currently so much lower than those for killing a badger directly, people can often choose to damage setts with the aim of killing badgers. Indeed, there is no reason for damaging a badger sett other than to harm the animals, and that needs to be reflected in the penalties.

It is clear that the current penalties are not acting as a strong enough deterrent. Scottish Badgers receives up to 100 incident reports a year, about 80 per cent of which can be considered potential offences, and the majority of those are offences against setts rather than against badgers. As drafted, the amendments would retain the option of summary convictions and lower penalties. There is a case to be made for removing that option altogether, but, in the interests of compromise and seeking agreement on the issue, I am not suggesting that we do so at this point. If the amendments were to be agreed to, a great deal of flexibility would still be available in how such cases could be dealt with, depending on the severity and impact of the crime, which is an important point.

Increasing the maximum penalties for such crimes and bringing them into line with the penalties for offences against the animal will reflect the significant scope for damage from such crimes, and it will send a clear message that disrupting a badger sett is a serious wildlife offence. That will ensure that serious crime receives appropriate penalties, and it will act as a deterrent for those who see badger setts as an easy target compared with the animals themselves.

I move amendment 92.

Mark Ruskell

I very much welcome amendment 92. We need to see the increase in penalties for the destruction of badger setts as a package alongside the provisions on vicarious liability, and we must ensure that the penalties are in line with those for other offences.

It is worth bearing in mind that some of the landowners and others who are responsible for sett destruction are particularly wealthy. We are talking about commercial and corporate interests. Even if we can get a conviction—which, again, raises the issue of vicarious liability—the fines that are attributed for sett destruction are so low that, in many cases, they would barely register on a business’s balance sheet. We need to increase those penalties and vicarious liability in order to bring an end to the destruction of badger setts, which is happening across Scotland.

The Convener

As no other members have indicated that they wish to speak, I invite the minister to respond.

Mairi Gougeon

As I said when I was considering Claudia Beamish’s earlier amendments, I absolutely appreciate the impact that offences involving the disturbance of habitat and resting places, including badger setts, can have on wildlife. That is why I proposed at the outset of the bill to increase the maximum penalties for those offences to 12 months’ imprisonment or a £40,000 fine, or both.

I have listened to the concerns that have been raised today, and I am prepared to give Colin Smyth’s amendments 92, 93 and 94 further consideration ahead of stage 3. I would simply ask him, as I asked Claudia Beamish, to withdraw or not move the amendments in the group, and I will look to work with him on an amendment for stage 3.

The Convener

I call Colin Smyth to press or withdraw amendment 92.

Colin Smyth

It is simply not right that crimes against badger setts are not subject to the same penalties as crimes against animals when, in reality, crimes against setts are crimes against animals. The amendment would close the loophole that allows people to kill an entire group of badgers in a cruel and inhumane way with less severe consequences than if they had killed an individual badger.

Amendments 92 to 94 would retain the option of summary conviction with lower maximum penalties, so that, where appropriate, such crimes could continue to be dealt with as they currently are. The amendments would, however, allow for stronger penalties to be applied where necessary, as we know that there are circumstances where that is necessary. The amendments do not go any further than bringing an offence against badger setts into line with offences against badgers, and doing so would reflect the true impact of such crimes.

I take on board what the minister says, although I am happy with the text of my amendments. I want to make very clear that the aim of any amendment at stage 3 must be to bring crimes against badger setts into line with crimes against the animal. I am happy to work with the Government on a stage 3 amendment in order to resolve any wording issues, so I will not press or move the amendments at this stage. However, I certainly intend to pursue the matter at stage 3.

The Convener

I put on record my support for the policy intention of the amendments. I spoke on the matter in the stage 1 debate, and I agree with all the comments that have been made about the impact of destruction of badger setts on the animals.

Amendment 92, by agreement, withdrawn.

Amendments 93 and 94 not moved.

Amendment 95 moved—[Mark Ruskell].

The Convener

The question is, that amendment 95 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Beamish, Claudia (South Scotland) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)

Against

Carson, Finlay (Galloway and West Dumfries) (Con)
MacDonald, Angus (Falkirk East) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Wells, Annie (Glasgow) (Con)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 95 disagreed to.

Section 6 agreed to.

Sections 7 and 8 agreed to.

Section 9—Wild Mammals (Protection) Act 1996: penalties for offences

Amendment 96 not moved.

Section 9 agreed to.

Section 10 agreed to.

After section 10

The Convener

Amendment 12, in the name of the minister, on wildlife offences and fixed-penalty notices, is grouped with amendment 64.

Mairi Gougeon

The aim of the bill is to create a suite of measures to deal with offences against animals. The bill at introduction contained provisions to allow the Scottish ministers to create a fixed-penalty notice scheme for minor and technical animal welfare offences.

Amendment 12 seeks to introduce the same provisions, but for wildlife offences, bringing the protections of wildlife into line with those of domestic animals. It will enable the Scottish Government to introduce secondary legislation in future to create a fixed-penalty notice scheme for minor and technical wildlife offences. The amendment limits the offences to which fixed-penalty notices can be applied to those that carry a maximum penalty of six months’ imprisonment or a level 5 fine.

The bill already contains provision to confer a power on the Scottish ministers to make regulations for the use of fixed-penalty notices in relation to animal welfare offences.

The merits of that regime were discussed at stage 1, and the committee welcomed the proposal. Amendment 12 seeks to extend the agreement to wildlife offences. I note again that, before laying secondary legislation to introduce an FPN scheme, we will undertake further stakeholder consultation to help to develop the details of the scheme and the range of offences that it will apply to.

Any future regulations that make provision for the issuing of fixed-penalty notices will be subject to the affirmative procedure and, as such, will be scrutinised by the Scottish Parliament before being made, as is the case with the existing animal welfare FPN provisions.

I move amendment 12.

Amendment 12 agreed to.

The Convener

Amendment 1, in the name of Mark Ruskell, is grouped with amendment 98.

Mark Ruskell

Amendment 1 follows up one of the many recommendations from Professor Poustie’s review that we are discussing today. It recognises that the causes of violence against animals may be deep-rooted in a person’s upbringing and that their lack of empathy could be a result of fear and violence in their life.

Rehabilitation and reintegration into society are important outcomes for the criminal justice system, but no empathy training courses are available in relation to animal welfare offences, despite intervention programmes such as the SSPCA’s animal guardians programme being available for young people who are starting to show offending behaviour. Courts want to apply restorative justice approaches. There was a recent case where two young people had put a lizard into a kitchen blender and killed it. The judge wanted to send them on an empathy course, but unfortunately no courses were available.

My amendment 1 would simply require ministers to

“take such steps as appear to them to be required”

to facilitate the development of programmes. That could involve providing funding and guidance, as is specified directly in Claudia Beamish’s amendment 96, but under my amendment 95 it would be at the minister’s discretion.

I move amendment 1.

Claudia Beamish

Amendment 98 would place on the Scottish Government an obligation to ensure that guidance was developed and funding made available as appropriate to enable sentence disposals of empathy training and restorative justice services to be available to the courts for use where it is judged to be appropriate for those who are convicted of animal crimes under the listed acts. Such programmes could well break what have in some cases been intergenerational negative and inappropriate behaviour patterns towards animals. The amendment requires the guidance to be laid before Parliament.

My other amendments that we have discussed have concerned deterrence and dissuasive sentencing. Amendment 98 proposes an approach that could be used alongside sentencing to develop empathy in offenders, which may prevent future offending and thereby better protect animals.

We must recognise that violence against animals and violence against humans can on occasion be linked. That is addressed in other amendments, such as those that are about letting other groups and statutory organisations know of an offender’s behaviour.

Amendment 98 could mean that the offender has to face the reality and consequences of his or her actions in order to better understand the wrongness of those actions. Members will remember that, at stage 1, parallels were raised with speeding offences, but there are also parallels with domestic abuse offenders, who have in some cases been able to take part in the Caledonian system while in prison. That has been part funded by the Scottish Government.

I thank OneKind for its work on the issue and its help with amendment 98. Animal cruelty convictions must effect changes in attitudes. OneKind has highlighted the Scottish Government’s 2007 report, which suggested that, in some cases, community sentencing can have more effect in preventing recidivism. OneKind is working in that area and, if amendment 98 were agreed to, it hopes to promote the development of a suitable programme or course.

I support Mark Ruskell’s amendment 1 and how it relates to the discretion that the Scottish Government and the courts could have in relation to restorative justice and empathy training.

The Convener

As no other members have indicated that they would like to speak on the amendments in this group, I will go to the minister.

Mairi Gougeon

At first glance, amendments 1 and 98 look similar, but they differ in the detail. After careful consideration, I cannot support them for three main reasons. The first and primary reason is that I understand that local authorities already have the powers to organise a range of community payback order requirements, and the courts already have the ability to order such requirements as part of sentencing.

Secondly, I am not sure that it is necessary, or that it would be a justifiable use of resources, to oblige the Government to make community payback order programme requirements of the detailed type that is described available to all offenders who are convicted of the full range of animal welfare or wildlife offences.

Thirdly, I cannot support the amendments because of the extent to which they could constitute interference with the long-established principle that Government should not interfere in judicial decision making.

To take the first point, we should consider what the community payback orders that are run by local authorities involve at present. Before a sheriff or judge can sentence someone to a community payback order, they must first obtain a report from a criminal justice social worker. That report will give the sheriff or judge background information on the person, such as any offences that they have previously committed, their risk of offending again, their health and living situation and so on.

The criminal justice social worker is assigned by the local authority to supervise the different requirements of the community payback order. Nine different requirements can be imposed, and it is for the sheriff or judge to decide which ones should be selected for each sentence. Examples of possible requirements are an unpaid work requirement, a drug treatment requirement or a programme requirement, which is what we are considering here.

If a programme requirement is attached to the community payback order, the person who is convicted of the offence could be ordered to attend a programme arranged by a social worker. Such programmes deal with offending behaviour and can cover a range of issues, but there is very little evidence that specific animal welfare empathy programmes are beneficial in such circumstances. Without that crucial evidence on effectiveness, I am not convinced that it would be a good use of national or local authority resources to develop and provide the highly specific programmes that amendments 1 and 98 would require.

The powers already exist for local authorities to develop relevant programmes on a non-statutory basis, and it could be argued that that is a more appropriate approach. Evidence could be gathered on the impact on the organisations involved and their capacity to deliver, as well as on the priority and effectiveness of such measures. Such programmes would be designed and offered by local authorities in collaboration with partners, and their use would remain a matter for the courts, which consider the individual circumstances of each offender.

Such programmes could already include the restorative justice approach that is referred to in Claudia Beamish’s amendment 98, whereby the offender and the victim—or, in animal-related cases, the animal’s owner or other representative—agree to participate voluntarily to understand and acknowledge the harm that the offence has caused. In that regard, the Scottish Government has already set out a clear vision for having restorative justice services, with the interests of victims at their heart, widely available across Scotland by 2023. The Government provided £300,000 to support the delivery of such services when the restorative justice action plan was published in June last year, and additional funding will be available in the current financial year.

In any case, a person who is sentenced to a community payback order with supervision as a result of conviction for an animal welfare offence—or indeed most other offences—will have a risk assessment and an action plan that focuses on addressing the offending behaviour, attitudes to offending and so on, without the requirement for a programme as such.

The Scottish Government strongly supports the provision of empathy training as a preventative measure—that is an important area on which to focus. There are a number of initiatives that teach children empathy and are centred on kindness to people and/or animals. In particular, we have supported the Roots of Empathy programme in some Scottish schools, which is an evidence-based classroom programme that has shown significant effects in reducing aggression levels in schoolchildren, by increasing social and emotional competence and empathy. Scotland was the first country in the world to deliver the Roots of Empathy programme in every council area, through funding of £1.2 million.

The Scottish SPCA has done significant work in the area, through school visits and programmes that intervene with children and young people who are starting to display potentially offending behaviour towards animals. I am thinking of the Scottish SPCA’s animal guardians programme, for example.

The point that I made about judicial interference is particularly relevant in relation to Claudia Beamish’s amendment 98, which would require guidance to be issued to the courts. It is a long-established and important principle that sentencing, in any case, is a matter for the court alone. The court takes account of all the facts and circumstances of a case before it reaches a decision, in the overall legal framework, and guidance to the courts about how they undertake their sentencing responsibilities should be a matter for the judiciary or the independent, Scottish judiciary-led Scottish Sentencing Council. The placing of an obligation on the Scottish ministers to provide guidance to the courts on sentencing matters would run the risk of threatening judicial independence and should be strongly resisted.

It is worth noting that the independent Scottish Sentencing Council has indicated that, as part of its current business plan, it intends to consider sentencing guidelines in the area of wildlife and environmental offending. If and when changes to the overall sentencing legal framework proposed in the bill come into force, the Scottish Sentencing Council will consider issuing guidelines. That is the correct order in which matters should be considered.

Having said all that, I think that there is scope for us to give further consideration to restorative justice in the context of animal welfare and wildlife cases. We could undertake a project to look at the most recent evidence from other countries in that regard. I do not know whether Mark Ruskell and Claudia Beamish will be content respectively to seek leave to withdraw amendment 1 and not move amendment 98 on the basis that we can commit to further investigation, so that we can discuss what that would look like.

Mark Ruskell

I listened carefully to that, and I am certainly interested in hearing more from the minister at some point about what such a project might look like.

The problem is that we are stuck in a bit of a chicken-and-egg scenario. Yes, there is no direct evidence on the success of empathy training in a restorative justice approach, but that is partly because there are no empathy training and restorative justice programmes available for offenders to attend.

The minister was right to point out, as did I, that some empathy training is available for young people in schools, but such an approach is not being rolled out under CPOs, and we have to question why that is. The minister mentioned resources. We are talking about specialist rehabilitation and bespoke courses, which a single local authority might not be able to pursue in an area where a low number of offenders might attend such courses. A nationally co-ordinated approach is needed and I hope that the Government can move on that.

I take on board the minister’s comments about guidance in the context of Claudia Beamish’s amendment 98, which is why my amendment 1 attempts to put a light-touch approach in legislation, while ensuring that the Government takes action on the matter.

I look forward to further discussion with the minister ahead of stage 3. I will not press amendment 1. I will have a look at what the scope might be for action to be taken on a non-statutory basis. I will look at the specification for that and consider whether, on the back of that discussion, it would be worth lodging another amendment at stage 3.

Amendment 1, by agreement, withdrawn.

The Convener

I invite Claudia Beamish to move or not move amendment 98.

Claudia Beamish

I will not move amendment 98. I have noted the minister’s comments about possible discussions.

Amendment 98 not moved.

The Convener

Amendment 97, in the name of Colin Smyth, is in a group on its own.

Colin Smyth

Amendment 97 is intended to create a framework for more efficient information sharing on animal welfare and wildlife related crimes in response to concerns that were raised with the committee on that issue at stage 1.

A number of stakeholders noted that the lack of information sharing in relation to those offences limited investigations and made it difficult to track offenders and identify patterns of behaviour. Indeed, the committee’s stage 1 report concluded:

“information-sharing on convictions ... may help track patterns of offending, including animal welfare and other forms of offending such as domestic abuse and criminal activity.”

It also recommended that the Scottish Government

“set out proposals to establish a registration system or a means of effectively sharing information between authorities.”

My amendment seeks to underpin the creation of such a system. I have taken an enabling approach that calls on the Scottish ministers simply to issue guidance on the matter, in order to give us as much flexibility as possible on the specifics of the system. However, the aim is incredibly important, and I hope that we can agree on this straightforward amendment as a first step towards addressing the problem.

I move amendment 97

Stewart Stevenson

This is probably a question for the minister as much as it is for Colin Smyth, although it would be proper for Colin to comment as well.

The amendment leaves me uncertain about how it would interact with the operation of Disclosure Scotland, in particular in relation to community payback orders and disqualification orders and so on. Were the amendment to be moved, I am not minded to support it. I wonder how Disclosure Scotland fits in. For example, the amendment’s proposed new subsection (9), on the meaning of an “enforcement authority”, does not list Disclosure Scotland. That may or may not be correct. There are issues with the drafting of the amendment, besides any that may arise in the policy.

Mairi Gougeon

I state at the outset that I absolutely support the aims of the amendment in principle, because the Government recognises the importance of improving information sharing and co-ordination between the various bodies that have a role in animal health, welfare and wildlife enforcement. Those include local authorities, APHA, Food Standards Scotland, the Scottish SPCA, Police Scotland and others.

Our officials are involved in on-going discussions with enforcement bodies on that subject. I have been informed that there are current moves to standardise the databases that are used by Scottish local authorities and others and to agree protocols for greater sharing of information between the various bodies that are involved in the wide range of animal health and welfare enforcement. That includes many forms of information and intelligence and is not limited simply to the outcome of criminal cases. However, we will have to carefully consider whether the proposed amendment would, in fact, produce the improvements that we would like to see, and whether it would be legally feasible, because there are various legislative competence issues that would need to be worked through.

A particular issue is to what extent it would constitute a direction from the Scottish ministers to Police Scotland, which would be contrary to the proper process and could amount to unacceptable interference by the Government in the independent system for the investigation and prosecution of crime in Scotland, which is headed by the Lord Advocate.

Any guidance that is issued to enforcement authorities would also need to take account of data protection legislation, for example in ensuring that personal data was processed lawfully, fairly, and in a transparent manner, and was collected for specified, explicit and legitimate purposes only.

We would also need to consider whether anything should be added to the provisions to ensure that they comply with article 8 of the European convention on human rights, which concerns the sharing of information about the private lives of individuals.

Stewart Stevenson also highlighted a couple of points.

For those reasons, I cannot support the amendment as currently drafted, because there are fundamental and complex legal issues involved. However, I offer again to work with Colin Smyth on whether the aims, which we both share, of in general improving information sharing and co-ordination between enforcement authorities can be progressed more effectively but in other ways.

Colin Smyth

[Temporary loss of sound.]—welfare and wildlife offences is a significant issue, which the committee agreed needed to be addressed as part of the consideration of the bill.

It is not clear to me from the minister’s comments whether the Government supports an amendment to the bill to ensure that that happens, because, frankly, so far it has not done so. I would be deeply concerned if we did not have an amendment that gave some legal underpinning to a requirement for the better sharing of information.

I am happy not to press amendment 97 at this stage, but I intend to lodge it at stage 3, and I hope that the Government will be happy to work with me on the wording. I do not think that we can simply leave it to discussions; it needs to be given the very clear direction of Parliament to make sure that the desperately needed improvements in information sharing happen. That is why it needs to be in the bill. We will have another opportunity at stage 3.

I do not agree with a number of the points that the minister made about some of the wording of the amendment—it was very carefully considered, and any tweaks could happen at stage 3 if the amendment were agreed to today. However, in the spirit of discussions so far, I will not press the amendment and I hope that the Government will work with me on appropriate wording for stage 3.

Amendment 97, by agreement, withdrawn.

The Convener

Members will be pleased to know that at this point we can have a short break.

On resuming—

The Convener

Amendment 99, in the name of Maurice Golden, has already been debated with amendment 67.

Maurice Golden

On the basis of—[Temporary loss of sound.]—and the intention behind amendment 99, I am happy not to move it.

Amendment 99 not moved.

The Convener

Amendment 2, in the name of Mark Ruskell, is in a group on its own.

Mark Ruskell

I hope that it is clear to the minister and most members of the committee that we have yet to put in place the right resources to successfully detect and prosecute wildlife crime, especially in our most remote areas. A pilot involving special constables was run in the Cairngorms, but it was found that that was not the solution. There is a glaring need for a team of professionals who can work to assist the police in evidence gathering and enforcement.

The SSPCA is working successfully in most areas of animal welfare enforcement, but as we heard in evidence at stage 1, there is a mismatch in its powers. For example, an SSPCA inspector can visit an illegal trap that has a live bird inside it, gather evidence and intervene, but they would have no jurisdiction over a trap with a dead bird inside it, even if it was just 2m away.

I am aware that the minister knows that that needs to be fixed, and soon, and I am aware of the Government’s work with stakeholders including the SSPCA to discuss the extension of the powers that are needed. However, I am concerned that, despite the consensus on what needs to change, we could wait a long time before the Parliament has another opportunity to pass primary legislation. The last time that we had primary legislation that could have fixed the issue was in 2006. We cannot wait another 14 years while our bird of prey populations continue to be decimated.

Amendment 2 would allow ministers to act, when the time is right, to confer further powers on wildlife inspectors through regulations under the affirmative procedure. That would enable the Parliament to move at pace, but with proper scrutiny. The SSPCA’s offer to extend its role in wildlife inspection has been on the table for years. We need a robust route to make progress on the issue, which is what I am proposing.

I move amendment 2.

Mairi Gougeon

Mark Ruskell’s amendment would allow the Scottish Government to make broad changes to the function of wildlife inspectors through secondary legislation. I have concerns about that, because the amendment does not place any caveats or limitations on what the powers could be, and it is not clear why the powers would be needed or what they are for.

I appreciate that the committee has raised concerns previously about the resourcing of wildlife law enforcement and that it is keen to explore whether it would be possible to extend the powers of SSPCA inspectors to undertake investigations in that area. The committee will be aware that the First Minister has given a commitment that the Government will look at the issue further. I can confirm that I plan to convene a task force later this year to consider the matter in detail. I will write to the committee to provide more information about the purpose and remit of that group and the timescales that it will work to. I intend to do that ahead of stage 3.

It would be inappropriate to pre-empt the findings of that task force by doing anything in the bill that could be viewed as paving the way to extend further powers to persons who are involved in the investigation of wildlife crime. We should first have a clear view of what those powers could and should be, as well as any potential wider implications. I understand that the Scottish SPCA is happy with the approach that I propose.

Therefore, I cannot support amendment 2. I ask Mark Ruskell, rather than pressing the amendment now, to withdraw the amendment and allow the task force the time to complete its work.

Mark Ruskell

I am tempted to seek to withdraw the amendment. I take on board what the minister is saying about the task force and the commitment that she has given to write to the committee about its purpose and remit. However, I still have a concern about the legislative timescale, which is the point that I made in my opening remarks. The SSPCA’s offer to extend its powers has been on the table for many years and we have been going round the houses on the matter for a long time. If feedback on the remit and work of the task force is to come to the committee, I would like that to include a clear indication of a legislative approach and a legislative timescale for the issue.

I take on board the minister’s comments about the amendment being quite broad, but I need to see more detail on how the Government intends to take on board the task force’s conclusions and deliver them in legislation. Otherwise, we could be waiting for years and years for the next piece of primary legislation to come through in order to make a change that we all want and that is logical.

I will not press amendment 2. I will look carefully at the letter that the minister sends, and I hope to have further discussions with her ahead of stage 3. I will consider options at that point.

Amendment 2, by agreement, withdrawn.

The Convener

Amendment 100, in the name of Maurice Golden, is in a group on its own.

Maurice Golden

Amendment 100 relates to the requirement to conduct a general review of the provisions of the bill after it is enacted to ensure that, in overall terms, it is sufficient to safeguard animal welfare and protect wildlife.

Animal welfare should never have an end point; we must constantly strive to improve it. As such, a review would be an opportunity to test and strengthen the legislation. Such a review would be required to consider—in particular, but not exclusively—the inclusion of pet theft as a specific offence, as well as to follow up on previous statements in Parliament against wearable electric shock training aids for dogs. Both of those positions have received considerable support both within and outwith Parliament; as such, a serious appraisal of both should be conducted.

I move amendment 100.

Mairi Gougeon

Amendment 100 calls for the Scottish ministers to conduct a review of the provisions of the act as soon as practicable after the bill receives royal assent, and I cannot support that for a number of reasons.

First, it would be highly unusual and arguably pointless to review an act so soon after royal assent. Reviews are generally done after several years. Undertaking a review so quickly would be meaningless, because there would have been no time for practical issues that are associated with the new provisions to arise or be fully considered. We cannot formally review the new provisions effectively, because there will be no evidence about how they have operated in practice. We need time for that.

Secondly, amendment 100 raises the issues of pet theft and electronic training collars. I know that they are matters of particular concern to members, as they are for me. However, the amendment is not necessary to deal with those issues, because they are being looked at anyway and can be pursued through the Scottish animal welfare commission, which I hope we will discuss later in today’s meeting.

The commission will be able to consider a wide range of specific animal welfare issues, including companion animals and wildlife, and it will be able to provide independent expert advice on how those issues should be prioritised and taken forward. I hope that we will be able to discuss that in more detail after this debate, but for now I am content that the commission will be the most appropriate forum for dealing with the important issues that have been mentioned.

Finally, I reassure members that many of the important improvements that are contained in the bill have been developed through close and co-operative working relationships with those at the front line of enforcing legislation, and through on-going consideration of the operation of their powers. I have no doubt that that will continue and so I am comfortable that a formal review would be of no value at this time.

Maurice Golden

I respect the minister’s views about amendment 100 and appreciate her efforts to improve animal welfare in Scotland. However, for too long in Parliament, we have heard warm words and I believe that amendment 100 will help to strengthen animal welfare in Scotland, which is an aim that we all share. I will therefore press amendment 100.

The Convener

The question is, that amendment 100 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Beamish, Claudia (South Scotland) (Lab)
Carson, Finlay (Galloway and West Dumfries) (Con)
Wells, Annie (Glasgow) (Con)

Against

MacDonald, Angus (Falkirk East) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

The Convener

The result of the division is: For 3, Against 4, Abstentions 0.

Amendment 100 disagreed to.

Section 11—Taking possession of animals: additional powers

The Convener

Amendment 13, in the name of the minister, is grouped with amendments 14, 18, 20 to 22, 32, 37 and 40.

Mairi Gougeon

The next six groups of amendments all relate to the new powers for dealing with animals that have been seized for welfare reasons, which are found in section 11 of the bill. Section 11 inserts a number of new provisions in relation to those new powers into the 2006 act. The new powers to deal with animals are found in proposed new section 32A of the 2006 act; related provisions and procedures are found in proposed new sections 32B to 32L.

The first group of amendments addresses a number of technical issues regarding appeals, under proposed new section 32D of the 2006 act, in relation to decisions to deal with animals made using the new powers. The bill as introduced provides that a court may order different relevant steps from those originally specified in the notice that is served on the owner prior to exercise of the new powers. The provisions assume that the step that is taken is the step that is specified in the notice. However, the court may direct that another step be taken if an appeal is made under proposed new section 32D.

Accordingly, amendment 21 provides that, when a court makes an order on appeal that is in addition to or instead of the original decision, that is to be achieved by varying the notice. That change overcomes the difficulties that are posed by any steps being ordered in an appeal that were not specified in the notice. There are also a number of minor and consequential amendments.

Amendment 20 qualifies one of the grounds of appeal in proposed new section 32D(5) that are available to owners in relation to the proposed exercise of the new powers, so that any error of fact must have materially affected the decision to serve a decision notice or to specify any relevant step in it.

The purpose of the group of amendments is to ensure that the new process works correctly.

I move amendment 13.

Amendment 13 agreed to.

Amendment 14 moved—[Mairi Gougeon]—and agreed to.

The Convener

Amendment 15, in the name of the minister, is grouped with amendments 15, 19, 23, 25 to 31, 33, 34, 36, 38, 39 and 41.

Mairi Gougeon

The amendments rectify issues regarding the circumstances in which the ability to seek a release order or a disposal order under the existing provisions of the 2006 act should be reinstated after a decision notice has been served using the new procedure.

Specifically, the amendments allow a release order to be sought when a decision notice is served and an application for a release order under existing provisions in the 2006 act is then made but ultimately rejected by the court. The right to seek a release order will be reinstated a year after such a rejection.

Other associated amendments are housekeeping measures in proposed new sections 32E and 32F and relate to other consequential matters that arise from the main amendments that I have described.

I move amendment 15.

Amendment 15 agreed to.

The Convener

Amendment 16, in the name of the minister, is grouped with amendments 54, 58 and 62.

Mairi Gougeon

This group of amendments deals with the implications of the receipt of proceeds of sale where animals are sold using the new powers.

Amendment 58 has the effect of inserting a new section into the 2006 act, which provides for what happens to any proceeds of sale arising from exercise of the new powers. The amendment provides that any proceeds of sale must be applied first to meet any liability of the owner to pay relevant expenses and secondly to meet any liability to pay the compensation amount. The same amendment clarifies that the owner’s entitlement to compensation is instead of any entitlement any owner has to any proceeds of sale of the animal. That clarification rules out the possibility that the owner would be entitled to the proceeds of sale in addition to the compensation amount provided for under the new procedures.

Amendment 62 makes provision in relation to the proceeds of sale in the event that a court orders the forfeiture of the compensation amount. The amendment gives the court the power to make an order as to the disposal of the proceeds of sale. It also confers a power on the Scottish ministers to make provision for, or in connection with, the disposal of such proceeds of sale. For example, the power could be used to specify bodies to which the proceeds of sale could be paid.

This group of amendments includes a clarification that, when exercising any of the new powers to deal with animals in new section 32A of the 2006 act, the owner has not only the powers but the rights that an owner of the animal would have in taking the relevant step. Amendment 54 clarifies that the definition of “relevant expenses” that is found in new section 32H(5) also applies to new sections 32HA and 32K.

I move amendment 16.

Amendment 16 agreed to.

The Convener

Amendment 17, in the name of the minister, is grouped with amendments 24, 35, 46, 51, 56 and 61.

Mairi Gougeon

This group contains various minor amendments that have little legal effect on the workings of the new process for dealing with animals that have been taken into possession. They relate to consistent use of terminology, including the use of the term “protected animal” throughout the provisions.

I move amendment 17.

Amendment 17 agreed to.

Amendments 18 to 41 moved—[Mairi Gougeon]—and agreed to.

The Convener

Amendment 42, in the name of the minister, is grouped with amendments 43, 44 and 63.

Mairi Gougeon

The amendments in this group address the particular scenario in which, following service of a decision notice and exercise of the new powers to deal with animals, it is difficult or impossible to serve a compensation notice by the methods of service currently provided for in new section 32G of the 2006 act. For example, it may not be possible to serve a compensation notice when the owner has moved address following service of the decision notice and cannot otherwise be traced to an alternative address.

Amendment 43 provides some flexibility regarding the service of compensation notices by permitting service by any method that is directed by the court. The authorised person will be able to apply to the court for such a direction where there is difficulty with serving the notice by the methods that are specified in section 32G of the 2006 act.

The other amendments in the group make related changes, including placing a duty on the authorised person to carry out certain investigations before they serve a compensation notice.

I move amendment 42.

Amendment 42 agreed to.

Amendments 43 and 44 moved—[Mairi Gougeon]—and agreed to.

The Convener

Amendment 45 is grouped with amendments 47 to 50, 52, 53, 55, 57 and 60.

Mairi Gougeon

The amendments in this group concern the calculation of the amount of compensation to which the owner of the animal might be entitled after the exercise of the new powers to deal with animals. They will ensure that compensation is calculated fairly and without giving rise to unintended results where multiple events give rise to compensation.

Under the bill as introduced, compensation is calculated in the context of treatment, with reference to the decrease in the value of the animal when it was taken into possession and the value of the animal immediately after the treatment. Amendment 47 revises that approach so that the compensation is measured with reference to the decrease in the value of the animal that is caused by the administration of the treatment. That change will avoid anomalies occurring when multiple compensation notices are served in relation to consecutive treatments.

In order to avoid double counting, amendments 48, 52, 53, 55 and 57 revise and reorder the provisions in section 32H that specify the sums that are deducted when a compensation award is calculated.

Amendment 50 provides for the proceeds of sale to be taken into account when the animal is valued for the purpose of calculating compensation. That will ensure that the proceeds of sale are used as the starting point for calculating compensation in the unlikely situation in which they exceed the market value of the animal.

Amendment 60 provides for the scenario in which the compensation amount cannot be paid to the owner of the animal. It allows an application to be made to the court for an order as to disposal of the compensation in those circumstances. That will ensure that funds do not need to be held indefinitely for the benefit of the owner when they are unclaimed.

The other amendments in the group—amendments 45 and 49—make technical changes to the compensation provisions in order to avoid unintended inferences about the exercise of calculating compensation.

I move amendment 45.

Amendment 45 agreed to.

Amendments 46 to 58 moved—[Mairi Gougeon]—and agreed to.

The Convener

Amendment 59, in the name of the minister, is in a group on its own.

Mairi Gougeon

Amendment 59 adds three categories of persons who are entitled to be heard in an appeal in relation to compensation under proposed new section 32I to the 2006 act. The bill as introduced was silent as to who, other than the owner, would be entitled to be heard in such an appeal, and amendment 59 ensures that authorised persons and certain inspectors and constables can be heard during an appeal, if the owner of the animal makes an appeal regarding the compensation relating to that animal.

I move amendment 59.

Amendment 59 agreed to.

Amendments 60 to 63 moved—[Mairi Gougeon]—and agreed to.

Section 11, as amended, agreed to.

Sections 12 to 15 agreed to.

Long Title

The Convener

Amendment 64, in the name of the minister, was debated with amendment 12.

Mairi Gougeon

Amendment 64 is a technical amendment that modifies the long title of the bill to include a reference to fixed-penalty notices in relation to wildlife offences.

Amendment 64 moved—[Mairi Gougeon]—and agreed to.

Long title agreed to.

The Convener

That ends stage 2 consideration of the bill. Printed copies of the bill, as amended, will be available from Wednesday 27 May 2020. I thank everyone for their succinct arguments and for their co-operation. I am delighted that we have got through all the stage 2 amendments.

We will take a short break before we move to agenda item 2.

The Convener

The third item of business is a session with Government officials, following receipt of a letter from the minister signalling the Scottish Government’s intention to lodge amendments at stage 3 of the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill in relation to seal licensing, which we discussed last week.

I welcome our witnesses from the Scottish Government: Mike Palmer, deputy director for marine planning and policy; Michael McLeod, head of marine conservation; and Elaine Tait, marine evidence manager. Thank you all for coming in—virtually—to see us this morning.

We will move straight to questions. Could one of you give us an overview of the policy intention of the proposed change and what it actually means? I am not sure who is best placed to answer that question. We will go to Mike Palmer—over to you, Mike.

Mike Palmer (Scottish Government)

The overall policy intention of the amendments is to enhance and improve the welfare of seals. The amendments would do that by prohibiting the licensed shooting of seals in certain specific circumstances and by increasing the maximum penalties that could be applied in relation to killing, injuring or taking seals.

We believe that those purposes are congruent with the purposes of the bill. The amendments would increase the maximum penalties, as I have said. They would not introduce new licensing provisions but would vary the current provisions. For those reasons, we believe that they are consistent with the overall purposes of the bill.

The Convener

It is not as though the Government is introducing a new crime, because this is about licensing. At the moment, someone can get a licence to cull or manage the seal population somewhere. However, the amendments would mean that those licences would no longer be awarded, because that would not be in line with the requirements of the United States with regard to our exporting fish to it. Can Mike Palmer provide clarification on that?

I should register an interest in that I am the Parliament’s grey seal champion. It is important to put that on the record, so that people do not think that I am trying to hide it. I have an interest in seals, obviously, coming from the largest seal haul-out area in Scotland.

Mike Palmer

Currently, there are a couple of grounds on which the Scottish ministers—the Scottish Government—can grant licences to shoot seals: to protect the health and welfare of farmed fish in and around fish farms and to prevent serious damage to fisheries or fish farms. As a result, a degree of shooting of seals happens within the fish farm sector and the wild recreational fisheries sector. The proposed amendments would take away those two grounds on which licences can be granted. They would adjust the current licensing regime rather than bring in or take away a licensing regime.

You are absolutely right to reference the US legislation that is coming in to protect marine mammals, because it is another factor, and it has influenced the timing of the amendments more than anything else. The amendments also have the purpose of improving the welfare of seals. We are proposing the amendments both for domestic reasons, to protect the welfare of seals, and because of the broader international movement, which the US regulations have crystallised in a way, to protect marine mammals against injury or killing. The United States has taken that forward by saying that it will not accept imports of commercial seafood products from any fish farm that might have shot or injured seals intentionally.

Those two policy developments have come together and brought us to this particular set of amendments at this time.

The Convener

That is clear, but when did the US bring in that condition about not accepting fish from other countries? I would like to know when that was and how long the Scottish Government has had to deal with it. We have questions as to timing—why now?

Mike Palmer

We totally understand that it is very unusual to lodge amendments of this nature at stage 3. We have been on a journey around the US regulations.

Members may recall that, in 2018, during the committee’s inquiry into the impacts of salmon farming, we notified it that we were liaising with the US authorities. At that point, the US authorities were developing their legislation, and we have been in constant dialogue with them since then to clarify and understand exactly what its requirements are and how we need to comply with it. That has been a tortuous journey in some respects, because it is very complex legislation; the various conditions and requirements are wide ranging and needed to be gone into in some depth with the US authorities in order that we could understand exactly what we need to do.

In March—so, really very recently—we finally got written confirmation from the US authorities that they would require us to take legislative action by way of amending our licensing regime. Up to that point, it had not been clear that they would require us to take exactly that set of actions. We are still seeking to clarify some aspects of their requirements, which is why it has taken us until stage 3. We had hoped to be able to lodge amendments earlier in the bill process, but we were not totally clear on some aspects of what was required, even at stage 2.

From our point of view, it is unfortunate that we have not been able to lodge the amendments before this stage; we would have liked to do it earlier. That has been the result of the quite challenging process that we have had to go through with the US authorities to clarify certain aspects of the bill.

Just after we heard in writing from the US authorities what they require, the Covid-19 situation emerged, and that has created a lot of pressure on our resources—we were unable to develop our proposals with the speed that we would have liked. The pandemic has had an impact on us in that resources have been redeployed elsewhere. The US, too, is feeling the pressure from that.

The Convener

We totally understand that.

Finlay Carson also had questions on the timing, but this seems like a good point at which to bring in Claudia Beamish on stakeholder engagement. I will give Finlay Carson the chance to contact me if he wants to come in on the timing issue, but I will go to Claudia next.

Claudia Beamish

Good morning to the panel. I will leave it to the panel to decide for whom my questions are most appropriate.

I have listened carefully to what Mike Palmer has been saying about timing, but there is concern among committee members about how stakeholders will be affected. In 2018, our committee considered the issues of the shooting of seals and the injury of seals by acoustic devices, which my colleague Mark Ruskell will come on to. I am concerned, in the public interest, about how stakeholder interests will be dealt with.

Mike Palmer

I am happy to answer that question. I will give a summary to kick off and then hand over to my colleagues, who will give a bit more detail. Because of the compression of the timeframe, we have not been able to do the kind of formal consultation with all stakeholders that we would like to have done. However, we have made efforts to go out to some of the key stakeholders that we know will be directly affected, particularly in the farmed fish sector and the wild fisheries sector.

I will hand over to Michael McLeod or Elaine Tait, who will give a bit more detail on the kind of engagements that we have had with those sectors.

Michael McLeod (Scottish Government)

As Mike Palmer says, we have been engaging with the sectors that will be directly affected by the changes. We have had a series of meetings with them over the past couple of months. After the minister wrote to the committee at stage 2, we wrote to every current holder of a seal licence to make them aware of the proposed changes. We have done our best to inform everyone despite the difficulties with timing and the ability to have stakeholder engagement in the current circumstances.

I have also tried to have conversations with NGOs. Clearly, they have been badly affected by Covid-19 in that a significant number of people are furloughed. However, just before the furlough process kicked in, I informed them that we would be bringing forward proposals very quickly, although at that point we were not 100 per cent sure about that.

Because of the circumstances, we certainly have not had the level and depth of engagement that we would normally aspire to have.

The Convener

Before Claudia Beamish comes back in, I will just check whether Elaine Tait wants to come in to supplement that evidence.

Elaine Tait (Scottish Government)

I have nothing to add to what Mike Palmer and Michael McLeod have already said on the issue.

The Convener

Thank you—it is always best to check.

Claudia Beamish

I do not know whether there is any further comment on the point that I tried to bring out, which is that the committee looked at the issues in 2018. I appreciate that United States law is important and that we have to get our approach right in that regard, but it is hard to understand why, over the past two years, we could not simply have proceeded and implemented changes on the basis of the concerns that were expressed by the committee and a range of stakeholders outside the Parliament in relation to seals and other marine conservation issues.

Mike Palmer

I understand the point. We were cognisant of the concerns that the committee raised about the seal licensing regime during its inquiry into salmon farming. We ultimately addressed that point in our responses to the reports of the Rural Economy and Connectivity Committee and the Environment, Climate Change and Land Reform Committee.

When the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill came along, given this committee’s concerns and our resulting policy thinking—which was reflected in our response to the committee’s report—we looked at whether we should use the bill specifically for these kinds of measures. We did that at the outset of designing the bill, but that was before the Covid situation had emerged and before it was clear what would be required in order to respond to the US regulations.

We took the view then that we should do what we routinely do anyway, which is to place the concerns and issues around the seal licensing regime in and among the range of issues that we would routinely consider in terms of amending and improving our primary marine legislation and the Marine (Scotland) Act 2010. That is a process that we routinely go through as part of good governance. However, given the parliamentary timetable and so on and so forth, there was not a defined set of proposals to bring through a set of amendments to the 2010 act at that time. There still is not, because we are still in the process of putting together what might be improvements to the 2010 act at some point in the future.

That was the thinking at that time. Clearly, things moved on with the developments around the US regulations, which forced the timing. We were also very conscious of the pressures on parliamentary time resulting from the Covid situation. Those developments coming together brought us to the conclusion that it would be sensible to draft the amendments now so that we could use this bill. The decision is the result of a set of developments that have occurred since we first thought about the bill.

The Convener

Claudia, are you happy for me to move on to the next committee member?

Claudia Beamish

I still have concerns, but Mike Palmer has answered as he sees fit. Thank you.

Finlay Carson

I have the same concerns as Claudia Beamish. We have heard some responses as to why the seal licensing proposals have been brought forward, but my concern is that the bill is a tight one and it was made clear at the outset that it would deal with only certain issues. I believe that the seal licensing proposals are outwith the scope of the bill that was introduced for us to consider. I do not buy the idea that the proposals could not have been raised at stage 1, given that, as we have heard, there have been concerns since 2018. Members lodge amendments during the bill process and a bill will be amended to ensure that we get the eventual law right.

This is not a good way to make law. It is not good governance; we will not get the opportunity to scrutinise the amendments properly and, as Michael McLeod has said, there has not been the depth of engagement that would normally happen. Introducing amendments so late in the day is very disappointing.

Given the committee’s concerns about the welfare of seals, I am really concerned about adverse, unintended consequences of bringing in these new laws. My colleague will raise our concerns about acoustic deterrent devices, but I put on record that this is not acceptable. Although I have listened and I understand the reasons, I still do not understand why something could not have happened at stage 1 to allow us to get stakeholders involved.

Covid-19 will become the excuse for so many things—I do not buy it in this instance. Convener, I do not have another question but it is important to say that I am not happy about this being brought in at stage 3.

The Convener

Finlay, do you want a response from any of our guests, or are you happy just to leave those points on the record? Mike Palmer may like to respond.

Finlay Carson

Mike, are you happy that this is the right bill? Is there no alternative legislative vehicle? The amendments are all a bit rushed because of the US requirement, which is not a good reason for making law.

Mike Palmer

We fully acknowledge and recognise the concerns that Finlay Carson has raised. I have said that the situation is not ideal and that we would have wished to provide more notice. Back at stage 1, it was not clear that the US regulations would require us to go to these lengths. It seemed to us then that any measures about seals would be better done in a future package of marine amendments, alongside other amendments to marine legislation that would be introduced at some point in the future. I am reiterating what I said earlier.

With regard to your question, we believe that this is the right bill. There is a good fit between the overall purpose of the amendments—to improve the welfare of seals while not bringing in a new licensing regime or taking one out—and the purpose of the bill, which is to increase penalties for breaches of due welfare for animals and wildlife. That is exactly what the amendments do; they improve the welfare of seals, which are a species of wildlife, by taking away a couple of conditions in the licensing. That seems to us to be in the scope of the bill and that is the position that we have arrived at.

Mark Ruskell

I will move us on, because we are where we are. The Government has known about the need to prevent the damage to marine mammals since 2017 and it has taken a long time for this licensing proposal to be introduced. I am glad that it is being introduced, but there are potentially consequences that could impact on other marine mammals.

As I see it, if we rightfully remove the licensed killing of seals, the industry could respond in two ways: it could use tensioned nets and seal blinds to prevent the access of seals to aquaculture cages, but it could also continue to use acoustic deterrent devices. There is scientific literature on ADDs and their impact on marine mammals—not only on seals, but also whales, dolphins and porpoises. According to a 2010 study by Northridge and others, ADDs can be detected at more than 14km from the sound source.

Another paper, which was written in 2014 by Lepper and others, found that commercially available ADDs can cause injury, stress, hearing damage and behavioural disturbance. The same study went on to state that there is a credible risk of exceeding injury criteria for both seals and porpoises.

This year, a study by Götz reported concerns about the new wave of acoustic deterrent devices, which are called “GenusWave”. Will the witnesses acknowledge that there is an impact on marine mammals from acoustic deterrent devices?

Mike Palmer

We are absolutely aware of the concerns about ADDs. The issue came up in the inquiry that this committee undertook, and it prompted us to undertake a programme of work to look into ADDs and their impacts. We are undertaking government-funded research, so that we can have proper evidence-based development of policy on ADDs and how they should be addressed as a non-lethal deterrent in future.

I will hand over to my colleague Elaine, who can give a bit more detail on our work.

Elaine Tait

At the moment, a range of non-lethal measures are used by fish farms and the river fishery sector to deal with seal predation. That range of methods includes seal blinds, tensioned nets and also ADDs. As Mike said, we appreciate that there are some concerns regarding disturbance and the potential impact of those devices on cetaceans.

When the committee reviewed the impacts of fish farming, there was talk about various unknowns and uncertainties. We have commissioned research on that, which aims to start to fill some of the key gaps on the extent of ADD use across the sector—including how and where they are used, duty cycles and places in which ADDs are not used—to get a full picture. That means that when we start to move forward we will have a strong evidence base and knowledge about how ADDs are being used.

The effectiveness of ADDs is also part of the project. We will work with the industry to get a feel of their effectiveness. That project will also look at developing science-based industry guidance about how ADDs should be used in order to reduce any potential environmental impact. All that work is on-going and it is due to be completed this year.

As well as funding that research, we are undertaking a review of the current management and regulation of ADDs. That is also on-going and once the review is completed we will set out further details.

Those are the two workstreams that we have at the moment, and we are conscious of the concerns.

Annie Wells

I have two further quick questions. Can you tell us when the research started, given that there was a committee inquiry in 2018? Can you foresee any potential unintended consequences that might need more investigation?

Elaine Tait

The research commenced last summer. It is on-going and will complete later this year. As I said, we are interested in finding out exactly what is going on, so we are not looking at the impact of ADDs in particular. Really, we are looking at efficacy and usage. It is clear that we do not know how these devices are used and, in order to move forward, we need a solid evidence base.

The Convener

Before we wind up this session, Mark Ruskell will ask a supplementary question.

Mark Ruskell

The US Marine Mammal Protection Act is clear. It prohibits the taking of marine mammals, and it says:

“The term ‘take’ means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.”

The act defines harassment as

“any act of pursuit, torment, or annoyance which—

(i) has the potential to injure a marine mammal ... in the wild; or

(ii) has the potential to disturb a marine mammal ... by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.”

With due respect to the witnesses, the issue is not about whether ADDs are lethal; it is about their ability to disrupt, annoy and harass marine mammals, whether they are seals, whales, dolphins or porpoises. There appears to be a major issue with compliance with an act that—let us face it—was drafted in 1972. Surely, the compliance issue is not about the extent of the use of ADDs; it is about the nature of that use and their impact on marine mammals. I would like to push our witnesses for a response on that point.

Michael McLeod

You are absolutely right about the MMPA. We have to achieve comparability with how the US uses its regulations, and it has a process that enables the use of acoustic devices. We will be working towards having something that is comparable in that regard. However, to get to that position we need the evidence base that Elaine Tait outlined, because it is the use that creates the noise in the marine environment, and that is what will determine the level of effect that that noise will have.

The Convener

I thank our colleagues from the Scottish Government for talking to us this morning. As we have finished our questions, they may leave the meeting.

The Presiding Officer (Ken Macintosh)

The next item of business is stage 3 proceedings on the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill. Members should have the bill as amended at stage 2, the marshalled list, the two supplements to the marshalled list and the groupings of amendments.

The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate.

Members who wish to speak in the debate on any group of amendments should press their request-to-speak buttons as soon as possible after I call the group. Members should now refer to the marshalled list.

Section 1—Prevention of harm to animals: penalties for offences

The Presiding Officer

Group 1 is on animal welfare offences penalties. Amendment 32, in the name of Colin Smyth, is the only amendment in the group.

Colin Smyth (South Scotland) (Lab)

I declare an interest as a proud member of the League Against Cruel Sports, the deputy convener of the cross-party group on animal welfare and the Scottish Environment LINK MSP species champion for badgers.

Amendment 32 looks to increase the maximum penalties available for offences introduced by secondary legislation under the Animal Health and Welfare (Scotland) Act 2006. As it stands, the maximum penalty for any offences created by secondary legislation under that act is six months’ imprisonment or a maximum fine of £5,000. The bill will grant ministers broad regulation-making powers—for example, they will be able to introduce secondary legislation creating offences to secure the welfare of animals and relating to the licensing of activities involving animals. Those broad powers could underpin a range of potentially very serious offences. Offences created using those powers could also involve highly profitable businesses—for example, ministers could introduce regulations on the licensing of animal breeding. In that context, it is essential that fines can be set high enough to act as a deterrent.

My amendment proposes that ministers be able to set penalties of up to 12 months’ imprisonment or a £40,000 fine for offences made under sections 26, 27 and 28 of the 2006 act, which relate to “Provision for securing welfare”, “Licensing etc of activities involving animals” and “Prohibition on keeping certain animals”. That would provide ministers with the freedom to set appropriate penalties when introducing more serious offences through secondary legislation and would ensure that the financial penalties are adequate when profit is a factor. Ministers would still be free to set lower penalties where appropriate, and penalties set under those sections would still receive scrutiny through the regulation-making process. The 2006 act makes it clear that ministers have a statutory duty to consult prior to issuing regulations under those sections and that they must be approved by Parliament.

Amendment 32 reflects the need for higher maximum penalties for animal welfare crimes, to allow fair and proportionate penalties to be issued, which is one of the key aims of the bill. Having raised the wider issue of penalties during stage 2, I am pleased to have been able to work constructively with the minister to present the amendment, which is sensible and proportionate and will help to future proof the powers in the 2006 act to make regulations, including future regulations for the licensing of activities involving animals.

I move amendment 32.

Finlay Carson (Galloway and West Dumfries) (Con)

As we know, the overall objective of the bill is to increase the range of sentencing options in relation to animal welfare and wildlife offences. Therefore, we support Colin Smyth’s amendment 32, as we believe that it is right that anybody who commits an offence under the legislation should receive the highest penalty that is available. We support the proposed increase in penalties.

Liam McArthur (Orkney Islands) (LD)

Like Finlay Carson, we believe that at the heart of this bill is the desire to see cruelty towards animals and abuse of their welfare treated more seriously. That requires penalties to be increased and brought more in line with the sanctions that are in place in most other countries in Europe, in order to better reflect the seriousness of the crimes. I welcome Colin Smyth’s amendment 32, which is a further step in that direction, and the Scottish Liberal Democrats will support it.

The Minister for Rural Affairs and the Natural Environment (Mairi Gougeon)

At stage 2, I said that I fully appreciated the aim of the amendment that Colin Smyth lodged on this issue, and I indicated my support for his intention. Therefore, I was more than happy to work with him to provide a suitable alternative.

Amendment 32 is helpful, and the measure is a proportionate one that will give useful flexibility to develop future animal welfare regulations, with appropriate higher maximum penalties. Unlike Mr Smyth’s original amendment on the issue, it will not prevent the Scottish Government from providing for the use of fixed-penalty notices or, indeed, lower maximum penalties for offences in future regulations. With that, I am happy to state that I support the amendment.

Amendment 32 agreed to.

After section 3

The Presiding Officer

Group 2 is on protecting dogs from unnecessary suffering: docking. Amendment 33, in the name of Mark Ruskell, is the only amendment in the group.

Mark Ruskell (Mid Scotland and Fife) (Green)

I declare an interest, as I am an honorary associate member of the British Veterinary Association.

It has been three years since Parliament partially reintroduced the barbaric tradition of puppy tail docking that had been banned under the Animal Health and Welfare (Scotland) Act 2006. During that period, there has been no monitoring of how that tradition has been resurrected. In fact, after the ban was overturned in Parliament, the Government was explicit that it would not monitor any of the consequences.

No figures are available for the number of puppies that have undergone amputation in Scotland. No evidence exists on whether the practice has been restricted to working dogs or has led to many more dogs undergoing a painful procedure purely for cosmetic reasons. No analysis has been done of whether those operations have reduced the number of injuries to working dogs, and no guidance has been given to vets on the certification of puppies that are destined to become working dogs. I am also unaware of any further studies, support or guidance being available on the reduction of tail injuries to working dogs by tail sheathing or proper kennelling techniques.

Once again in this Parliament, tradition is trumping evidence. The Government is once again turning a blind eye to an issue in order to placate a country sports lobby that has the ear of the Cabinet. The lack of evidence is why science-led bodies such as the British Veterinary Association, OneKind and Blue Cross continue to oppose the amputation of a healthy dog’s tail and a growing number of veterinary practices are simply refusing to carry out those operations.

Even if we accepted the argument that tail shortening prevents damage to some working dogs, evidence shows that more than 300 puppies would have to have their tails docked to prevent the amputation of one adult dog’s tail—more than 300 puppies that might suffer long-term pain and behavioural and communication problems in later life as a result of those operations, simply to avoid one severe tail injury.

The animal welfare arguments in favour of the amputation of a healthy puppy dog’s tail did not stack up in 2006, they did not stack up in 2017 and there is no evidence to suggest that they stack up in 2020. In fact, there is simply no new evidence at all, because no one is even bothering to look for it. For those reasons, it is time to restore the full ban on the docking of all dogs’ tails.

I move amendment 33.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

Mark Ruskell and I agree on a lot of things—including much of what is in the bill—but amendment 33 is not one of them. I find the heading of the proposed new section offensive, because it implies that people who support the shortening of tails in working dogs are subjecting them to “unnecessary suffering”. The Parliament had that debate in 2017 and we voted on it. I have had representations, not just from the shooting, hunting and landowning lobby but from people who own non-working dogs that have had injuries to their tails. They ask me why, if their spaniel can hurt its tail by wagging it against a door, a spaniel is going into bushes and hurting its tail. We have heard from vets who have had to cut tails off adult dogs and all the suffering that goes along with that.

Mark Ruskell talks about evidence gathering but, for a lot of things here, not much evidence has been gathered, so that is hypocritical. He is right that it is an animal welfare issue, but the animal welfare issue comes when an adult dog has to get its tail taken off; that is a lot more distressing for the dog than when the procedure is done under—

Mark Ruskell

Will the member give way?

Gail Ross

Yes, absolutely.

Mark Ruskell

I understand the point about distress, but is it 300 times more distressing for an adult dog? That is what we are talking about. Three hundred puppies need to have their tails docked in order to get the welfare benefit that Gail Ross points to, of one dog not having an amputation when it is an adult.

Gail Ross

I thank Mark Ruskell for that intervention, but I do not accept the argument that, because 300 puppies have to have their tails shortened, it is 300 times more distressing for an adult dog. That is a nonsense argument.

I will not support amendment 33 and I urge members not to support it. As I said, the animal welfare issue is about adult dogs and not about the controlled situation in which puppies have their tails shortened for a good reason.

Brian Whittle (South Scotland) (Con)

I am grateful to be able to speak to amendment 33. As an owner of a working cocker spaniel, who has a full tail—even though he wags it so much that it bleeds from time to time—my instinctive position is to rail against any suggestion that such a dog should have his tail docked.

In 2017, when the current law was implemented, overturning the ban that was instigated in 2006, I was uncomfortable with supporting any change in the law. I was encouraged to speak to the veterinary community, which brought me to recognise that, in rare circumstances, for the welfare of the dog, the procedure should take place. I asked myself whether I would refuse if a vet indicated to me that, for his welfare and health, my dog needed his tail docked. The answer is no; I am not a vet and I always listen to that expert advice, just as I would listen to the advice of any other healthcare professional. Exceptional circumstances might necessitate that procedure; therefore, it is wrong to revert to an outright ban, and I ask the chamber to vote against Mark Ruskell’s amendment 33.

Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP)

I declare an interest as the convener of the cross-party group on animal welfare and I speak in support of Mark Ruskell’s amendment 33. I supported the same argument in an intervention in 2017 and nothing has changed my mind; it remains even more resolute.

Those who argue against amendment 33 refer to “tail shortening”. Why move away from the term “docking”? We are using a euphemism to conceal something that is not necessary for an animal. Even if members believe in that argument, when a working bitch has a litter, she might have six or eight puppies, all of which have to have their tails docked, although not all of them will become working dogs. For the sake of one or two, the rest go through the procedure. I do not want to spend too long on that, because my position is well known.

I hope that members will vote with their consciences on amendment 33, rather than bother about party whips, which can get in the way of honesty.

Claudia Beamish (South Scotland) (Lab)

I speak in support of Mark Ruskell’s amendment 33. Previously, Scottish Labour has supported a ban on tail docking, and I agree that a ban will protect dogs from unnecessary suffering. I was a member of the committee that took evidence on the matter in 2017; I was convinced by the arguments then, and they have not changed. There were arguments that it was necessary to dock the tails of some working dogs, but I was not convinced by them. There is the possibility of a dog wearing a sheath or of bandaging a dog’s tail to prevent such injuries. Scottish Labour supports the move to introduce a ban in order to protect animal welfare.

Liam McArthur

As Gail Ross said, we ran through this debate three years ago. Last time, the issue provoked a great deal of passionate argument on both sides, and that is the case this time, too. As I observed, both sides argued their case having weighed up and balanced the competing interests in relation to welfare, and the conclusions that were drawn were genuinely held.

Mark Ruskell mentioned a lack of evidence about the appropriate enforcement of the legislation since 2017. However, by lodging amendment 33 at stage 3, he has not allowed the committee or the Parliament to scrutinise it prior to that, nor has he presented any new evidence that the legislation is not being applied appropriately. Those who came to a different conclusion last time, as Christine Grahame did, will no doubt feel equally strongly and will be equally determined to vote for Mark Ruskell’s amendment. I understand that. As Christine Grahame said, members might well have to vote with their conscience on the amendment; it might not be appropriate to apply the party whip. My colleagues will vote accordingly, as they did in 2017.

Finlay Carson

As we have heard, tail docking was banned in 2007 but, to bring the legislation in line with that in the rest of the United Kingdom, exemptions were put in place for working spaniels and hunt point retriever breeds. There is no evidence—either available or presented—that indicates any new welfare concerns about that procedure.

It is very disappointing that the Greens, as they often do in the Parliament, lodged an amendment that was outwith the scope of the bill and did not allow for any scrutiny by the committee at stage 2. In some ways, it is disrespectful that Mark Ruskell has lodged amendment 33, given that committee members take a proactive role in considering legislation. We will certainly not be voting for amendment 33.

Mark Ruskell

On a point of order, Presiding Officer. Can I ask for your guidance on whether amendment 33 is outwith the scope of the bill?

The Presiding Officer

That is a good question. The answer is that the amendment is within the scope of the bill.

Finlay Carson

I take on board your ruling, Presiding Officer, but the amendment is outwith the spirit of the bill. All the way through the bill process, we have been looking at sentencing and certainly not at introducing any new offences.

Mairi Gougeon

I start by refuting some of the claims that were made by Mark Ruskell, because they are absolutely outrageous and completely unfounded. No one has the ear of the Cabinet. We are not trying to revive a barbaric tradition. The whole purpose of amendment 33 is just to reignite a debate for the sake of it.

I absolutely agree with some of the points that have been raised by other members from across the chamber. Gail Ross put it very well when she said that the procedure is done for animal welfare. Terms such as “docking” are bandied about to reignite the emotion and the debate. As Finlay Carson said, it is an offence to dock tails. Christine Grahame made a point about whether there is a differentiation between docking and shortening. There is a differentiation, because they are two completely separate things.

The bill’s provisions have been carefully developed in close collaboration with the key front-line enforcement agencies in order to make the most essential improvements that they have asked for in animal welfare enforcement. I am really disappointed that Mark Ruskell has taken the opportunity that has been presented at the last minute of the bill process to revive controversy on a matter that was decided by the Parliament just three years ago. That is made worse by the fact that I have sought, at all times, to work with other members across the chamber to build consensus. I have engaged with Mark Ruskell a number of times at stages 1 and 2, and at no point was that issue raised.

I completely understand the strong feelings and emotive arguments on both sides of the debate. However, they were all fully explored—after many years of discussion and debate—by detailed scientific analysis, Scottish Government-funded research and a full public consultation.

After due procedure and consideration by the relevant committee, the legislation, which now allows the tail shortening of specific types of working dogs to be performed only by veterinary surgeons and under very specific conditions, was approved by Parliament in 2017. Outwith that, tail shortening of dogs is not permitted except as part of veterinary treatment.

There is a fine balance that leaves decisions on whether to carry out tail shortening on working dogs—in individual cases—to the professional judgment of veterinary surgeons. They are the best people to make difficult, balanced decisions about what is in the best long-term interests of the individual animals that are presented to them. It also means that we have significantly tighter legislation on this than other parts of the UK.

Mark Ruskell

It is welcome that the minister is listening to veterinary surgeons. Will she also address veterinary surgeons’ concerns that there is no certification of working dogs? Unlike in England and Wales, no template of certification is produced in Scotland. That would give veterinary surgeons some comfort that they are sticking to the letter of the law. If the Government is engaging with science and sector bodies, why has that not happened?

Mairi Gougeon

We have significantly tighter legislation in Scotland. The decisions are down to the professional judgment of veterinary surgeons, and if Mark Ruskell was as concerned about that issue as he claims to be, he has had plenty of opportunities to discuss it with me. I would have been happy to discuss it with him not only during the earlier stages of the bill, but at any time prior to that. In all the time that I have been in my role, the issue of tail shortening has not been raised.

I will not rehash all the arguments for and against the tail shortening of dogs, because we have done that.

Amendment 33 concerns secondary legislation, which does not need a bill to amend it. Therefore, it does not fit at this stage. The matter could be reviewed in future after proper, detailed consideration of any new evidence—if we think that that is the best use of our time. However, the place to consider the subject in any more detail is not here, so I oppose the amendment and ask Mark Ruskell to withdraw it.

Mark Ruskell

I press amendment 33.

During the past three years, the Scottish Government has refused to monitor and review its own legislation. The policy was put in place against the wishes of bodies that represent the veterinary sector in Scotland. They have raised concerns about that. There was no monitoring of the roll-out.

The minister cannot tell me how many puppy dogs’ tails have been docked in the past three years and she cannot tell me what the welfare benefits are. All that we hear are anecdotal responses from Gail Ross and others about how they feel that there is a net animal welfare benefit to the partial lifting of the restriction on tail docking.

I have asked for evidence, in written questions, during the past three years and have had a plain response from the Scottish Government that it is simply not looking at the evidence and it is not monitoring its policy. Therefore, I ask the Scottish Government to make a commitment to review and monitor its policy.

If the Government thinks that the measure has a net welfare benefit, it should prove it by monitoring and checking that the policy is working and by doing what it said it would do three years ago. We do not have that evidence and, as a result, I think that we should restore the full ban.

The Presiding Officer

The question is, that amendment 33 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

As this is the first division of the afternoon, I suspend the meeting for five minutes and call members to the chamber.

The Presiding Officer

We will proceed with the division on amendment 33.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Carson, Finlay (Galloway and West Dumfries) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Rennie, Willie (North East Fife) (LD)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Russell, Michael (Argyll and Bute) (SNP)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

Abstentions

Gibson, Kenneth (Cunninghame North) (SNP)

The Presiding Officer

The result of the division is: For 22, Against 56, Abstentions 1.

Amendment 33 disagreed to.

The Presiding Officer

Group 3 is on disqualification orders. Amendment 34, in the name of Maurice Golden, is grouped with amendments 35 and 63.

Maurice Golden (West Scotland) (Con)

I am pleased to propose amendment 34, having raised the issue of disqualification orders during the passage of the bill, which is the appropriate, fair and balanced way in which to introduce amendments that are acceptable to the chamber.

A theme of discussions during the passage of this important bill has been the consistency of sentencing, including the use of disqualification orders. Amendment 34 seeks to address the issue by making it a requirement for courts to consider the use of disqualification orders in the way in which they were always intended to be used—that is, as an animal protection measure, rather than as a form of punishment.

The requirement will apply to all relevant animal welfare cases and require courts to explain their reasons for imposing disqualification orders of the type specified, or for not imposing a disqualification order, and require a record of their reasons to be kept. I hope that that will improve the consistency and transparency of courts’ judgments, and provide us all with a better sense of how courts are using all the tools that are available to them to protect animals and to address the worst harms and offences.

Amendment 63 is a technical amendment that seeks to modify the long title of the bill to include a reference to the proposed requirement on courts to consider making disqualification orders following convictions for animal welfare offences.

I hope that members will support both my amendments. I look forward to hearing further information from Colin Smyth on amendment 35.

I move amendment 34.

Colin Smyth

I welcome amendment 34, in the name of Maurice Golden, which seeks to improve the use of disqualification orders.

During stage 1, a number of stakeholders highlighted the inconsistent use of disqualification orders. Maurice Golden and I lodged amendments on that issue at stage 2. When I was considering what changes were needed at stage 3, a number of organisations, including OneKind, highlighted four key issues to me.

The first is the need to clarify that the default position in all cases should be for courts to consider a disqualification order. The second is the need for a clear requirement for courts to state the reasons for their decision, whether or not they decide to issue an order. The third is the lack of records on the use of disqualification orders, which could be addressed through a new requirement for the Crown Office and Procurator Fiscal Service to keep a record of all disqualification orders and applications to vary or delete them. The fourth is the need for clarification that the disqualification order part of the sentence imposed by courts is not a penalty in itself.

Combining the four changes would clarify the purpose of disqualification orders, encourage their proper use, help us gain a better understanding of how and when they are used, and identify any existing issues with their use.

I consider that Maurice Golden’s amendment 34 successfully tackles the first three issues. There is a gap in that it does not address the fourth issue. My amendment aims to do that—it is designed to be a helpful addition to amendment 34.

Amendment 35 seeks to clarify in law that disqualification orders are a means of protecting animal welfare. The orders are issued to prevent those convicted of animal welfare offences from owning or working with animals. That is not a punitive measure; it is an animal welfare measure.

The law as it stands suggests that such orders can be used

“instead of ... any other penalty”.

Amendment 35 would remove that provision and make it clear that disqualification orders should be issued as needed for the protection of animals, and not as an alternative to a penalty.

The legislation as amended would read:

“A disqualification order may be made in addition to any other penalty or order which may be imposed in relation to”

a relevant offence. It would not say that disqualification orders could be issued only alongside a penalty—although I cannot think of a scenario whereby a disqualification order on its own would ever be deemed appropriate without a penalty such as a fine.

My amendment simply states that a disqualification order should not be issued as an alternative to a penalty. I am sure that that would be made clear in any guidance on the legislation. I urge members to support all the amendments in the group.

Mairi Gougeon

I fully support the rationale for Maurice Golden’s amendment 34.

I support the intention behind the first part of Colin Smyth’s amendment 35, and the amendment is similar to amendment 34. However, although the second part of amendment 35 is equally well intentioned, I am concerned that it strays too far into the territory of limiting the discretion of the courts to use the penalties and powers that are available to them after conviction for a relevant welfare offence. That is not something that Government, or, indeed, Parliament, should be doing.

Amendment 35 seems to be intended to prevent disqualification orders from being issued on their own. Although that might not be a common scenario, in some instances it might be appropriate, depending on the facts and circumstances of a particular case and bearing in mind the widely varying circumstances in which relevant animal welfare offences of different types might be committed. It is therefore important that we do not inappropriately fetter the ability of courts to make such decisions.

For those reasons, I cannot support amendment 35. I hope that Colin Smyth will consider not moving it, but if he should do so I urge members not to support it.

The Presiding Officer

I call Maurice Golden to wind up on group 3 and to indicate whether he wishes to press or seek to withdraw amendment 34.

Maurice Golden

I will press amendment 34.

Amendment 34 agreed to.

Amendment 35 moved—[Colin Smyth].

The Presiding Officer

The question is, that amendment 35 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Boyack, Sarah (Lothian) (Lab)
Briggs, Miles (Lothian) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Corry, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 42, Against 38, Abstentions 0.

Amendment 35 agreed to.

Section 5—Wildlife and Countryside Act 1981: penalties for offences

The Presiding Officer

Group 4 is on vicarious liability. Amendment 36, in the name of Claudia Beamish, is grouped with amendments 37 to 40, 1, 53 and 54.

Claudia Beamish

The amendments in this group seek to extend the bill’s provisions on vicarious liability to certain offences under the Wildlife and Countryside Act 1981 and the Wild Mammals (Protection) Act 1996.

The offences referred to are not only heinous crimes of cruelty to wildlife; they are also significant in the midst of an environmental emergency. I welcome the fact that the minister has sought to work with me on amendment 39, which, for clarity, seeks to allow for the option of extending the established provisions on vicarious liability in the 1981 act to those involving the illegal setting of traps and snares.

We know that birds of prey are still being harmed, sometimes fatally, by pole traps and uncovered spring traps. In the past year, Police Scotland has investigated incidents involving spring traps set next to a hen harrier nest, and we have all seen the images that have appeared of a golden eagle in flight with what appears to be a spring trap on its leg. I hope that the introduction of vicarious liability for such offences would act as a deterrent and a wake-up call to the very few individuals who still will not respect the law. They include the owners and managers of land on which such offences are committed, as well as the individuals who themselves commit them.

I still consider the amendments extending vicarious liability to the other offences that I have listed to be necessary. I have listened to the minister’s concerns over their legal drafting, which I addressed after stage 2. In brief, they cover the following matters. Amendment 36 is to address the sale, care, possession or transport of protected wild birds and their eggs. Amendment 37 is on the failure to meet legal registration requirements for captive birds and their eggs, or keeping them illegally due to a past conviction for their ill treatment. Amendment 38 is on the illegal confinement of protected birds. Amendment 40 is on the taking of wild hares in the closed season, the intentional destruction of protected wild plants, including their sale, and the possession and sale of animals or invasive species of plants. Amendment 53 highlights the grievous offences that are listed in section 1 of the Wild Mammals (Protection) Act 1996, which include the mutilation, beating, stabbing and so on of

“any wild mammal with intent to inflict unnecessary suffering”.

Amendment 54 is consequential to amendment 53.

From my discussions with the minister, I am aware that she has reservations about the justification for applying vicarious liability to those offences. However, I would argue that we must focus on sending a strong message of deterrence. There are bad landowners and land managers—although they are very few in number—who are aware of, or are committing, those crimes, and they should shoulder the penalties. We are talking about illegal acts that can easily go unreported, but they can be reported. Such acts can be very cruel and can cause environmental loss, and they should be taken very seriously.

With the introduction of vicarious liability, the onus is on the landowner or employer to train their staff properly to ensure that they know the law with regard to wildlife, as much as they would be responsible for training staff on health and safety or other issues on any estate or land. One could say that the introduction of vicarious liability in those areas is an important improvement in the working conditions of gamekeepers.

Furthermore, it has been shown that vicarious liability, when it is used alongside other measures, has been a beneficial addition. In the past, it was introduced alongside the satellite tagging of birds and, in tandem, those two measures have served to reduce the incidence of raptor poisonings in Scotland.

With regard to other measures, it is perhaps worth while to stress that the penalties set out in other amendments serve as a complementary set of proposals that would work alongside the extension of vicarious liability.

I support Mark Ruskell’s amendment 1, which relates to badger setts. I am quite clear that the destruction of setts is as serious as killing or injuring a badger in terms of the damage that is caused. It would be difficult for those in charge on the land not to know that a badger sett was being destroyed, and it would surely take quite an amount of person power to destroy a sett. A vicarious liability provision is therefore vital in protecting that species, in order to send a clear message to the minority of landowners and agents and their employees who risk flouting the law by carrying out such a serious crime.

There is a limited basis for vicarious liability in the Wildlife and Natural Environment (Scotland) Act 2011; the owner or manager of the land has very limited liability, and has a clear defence at their disposal. I therefore ask members on all sides of the chamber to support all the vicarious liability amendments in group 4, including Mark Ruskell’s amendment 1. I very much hope that they will do so, because the amendments really will add to the protections that are already in place for wildlife and our environment across Scotland.

I move amendment 36.

Mark Ruskell

I support all the amendments in group 4, and I very much welcome Claudia Beamish’s work in committee in leading the arguments for the extension of vicarious liability.

My amendment 1 extends the provision of vicarious liability in relation to badgers. However, it also protects landowners and managers from liability if an employee or agent commits the offence outwith their employment or land. The amendment is tighter than the one that I lodged at stage 2; it narrows the liability and mirrors the existing provision and definitions in relation to birds.

I have attempted to work with the Government on my amendment, but there seems to be an underlying concern on the Government’s part about vicarious liability, and I am still trying to pin down the reasons for that. Vicarious liability seems to be working, and it seems to be driving action by landowners to avoid committing offences in relation to birds and pesticides. There remains a very high bar for prosecution.

Edward Mountain (Highlands and Islands) (Con)

I support the member’s intention to stop the damaging of badger setts, which we should not condone. I am a farmer, as is listed in the register of members’ interests. Occasionally, badgers wander and form temporary setts in fields which may be ready for harvest. Driving over a badger sett could be an accidental action if you do not know that it is there. It is perfectly possible to do so with a combine unless you walk every inch of the field before you go there. It would not be Mr Ruskell’s intention to punish somebody who did that accidentally without knowing that the badger sett was there, would it?

Mark Ruskell

Badgers are not birds of prey. They are not an ephemeral species and do not fly around Scotland, so their territories and habitats are well known. If badgers moved from an existing badger sett in a woodland into Mr Mountain’s field, I would expect him to take due care and to ensure that any badger sett was not destroyed. I think that landowners will recognise that. The vast majority of landowners in Scotland will be well aware of whether they have badgers on their land. I would be surprised if landowners did not know that. [Interruption.] I will not take an intervention, because I need to make progress.

Badgers are territorial animals that live in big identifiable setts, which, in the majority of cases, have existed for decades. It is virtually impossible for a landowner or land manager not to know that badgers exist on their land.

The briefing from Scottish Land & Estates tells us that badgers are “widespread” and that therefore everything is okay and none of the legal protections needs to change. However, I have been sent pictures by Scottish Badgers—I am sure that other members have been sent them, too—of many horrific cases of sett destruction and the death of whole families that have been maimed, crushed and asphyxiated. In those incidents, it has been impossible to pin down liability, because contractors, subcontractors, agents and landowners have all passed the buck.

That is why I do not think that everything is okay. I think that we need to tighten protections for badgers by extending the penalties and by introducing vicarious liability. Law-abiding landowners and land managers have nothing to fear from vicarious liability being applied to badger offences. However, those who wilfully allow sett destruction and persecution to take place need to be brought to justice.

Finlay Carson

Will the member take an intervention?

Mark Ruskell

Without vicarious liability, that kind of reckless destruction will continue to be met by a wisnae me attitude, and one of our most iconic species of wildlife will continue to suffer and pay a very heavy price.

Finlay Carson

We oppose amendment 1, because it is already an offence to knowingly cause damage, or permit damage to be caused, to a badger sett. We recognise that badgers are protected, but they are widespread and are not considered to be a species of concern by Scottish Natural Heritage. There is a healthy population spread and distribution across Scotland. Therefore, amendment 1 does not serve any useful purpose, because it is targeted at an area of law that we believe is working well.

I tried to intervene on Mark Ruskell to ask him whether he understands that persecution is normally limited to poachers or badger baiters with dogs rather than landowners, who his vicarious liability amendment would chase. I will take an intervention from Mr Ruskell if he wants to answer that.

Mark Ruskell

I apologise for not letting Mr Carson in earlier. What he says is the case, but he needs to recognise that there have been cases in which housing developers and forestry operators have destroyed setts and it has been almost impossible to bring those agencies to justice through the criminal prosecution system. Vicarious liability is important so that we pin down liability, because the buck keeps getting passed from a contractor to a subcontractor and back to the landowner again, and cases are not being brought forward successfully.

Finlay Carson

That intervention allows me to refer to the issues that the Law Society of Scotland has raised. It has suggested that, if there are examples of circumstances and cases in which the Crown Office and Procurator Fiscal Service has been unable to prosecute, it would be useful to know about those, and that gaps could be filled where the law requires to be extended. However, the Law Society suggests that

“To criminalize vicarious responsibility would effectively extend the law”,

whereas it was understood that the bill was not going to do that.

The Law Society also states:

“vicarious liability tends not to form part of criminal law as a person is normally only liable for their actions and not the actions of others.”

It goes on:

“If vicarious liability is to apply here, where an employee commits an offence in the course of their employment, the employer could be held criminally liable for the actions of their employee, unless a due diligence defence applies”.

The society argues that that would bring in a new offence.

I firmly believe that the extension of vicarious liability not only in the case of badger setts, but in the cases highlighted in Claudia Beamish’s amendments 36 to 40, requires far more consultation and needs to receive proper scrutiny, rather than that being done through amendments lodged in this fashion.

I will address amendment 39. As I have already said, vicarious liability tends to be a blunt tool and effectively reverses the burden of proof—a landowner or manager could be found guilty unless they were able to prove that they had briefed, trained and instructed employees. We know that the Snares (Training) (Scotland) Order 2015 introduces a requirement for all snare operators to be trained and for all snares to be identified through a tag that is registered through Police Scotland. SNH has also made it a requirement of the 2020 general licence for individual trap operators to attach personal identification to each predator trap. We are not aware of SNH raising any concerns, and we understand that the number of offences relating to illegally set snares is minimal.

Pest control is integral to land management in Scotland. The amendment is likely to have unintended consequences for the conservation of some of our most vulnerable species, including ground-nesting birds. We cannot support it without data and evidence being available to show that it is needed. I do not believe that we have given the issue sufficient consideration in order to make that decision. Conservative members will vote against all the amendments in group 4 relating to vicarious liability.

Liam McArthur

At stage 1, I expressed the view that there was a case for looking at how vicarious liability, as first introduced in relation to wildlife crime in the Wildlife and Natural Environment (Scotland) Act 2011, might usefully and sensibly be extended. I was interested in Mark Ruskell’s comments about the effectiveness of the 2011 act. Having been involved in the committee that scrutinised the Wildlife and Natural Environment (Scotland) Bill, I was under the impression that there was general acceptance of the limitations of vicarious liability, either as a deterrent or as a means of punishing those whom it targeted. Mark Ruskell is absolutely right in commending Claudia Beamish for her efforts to lead the exploration of options for such an expansion, although, ultimately, a number of those options seem problematic in terms of how they would work in practice. That said, unlike Finlay Carson, the Scottish Liberal Democrats strongly support the extension of vicarious liability in relation to the use of snares and other matters, and will therefore be happy to support Claudia Beamish’s amendment 39.

Edward Mountain

I rise to correct Mr Ruskell on a point of fact. He said that badgers are territorial and that they live in setts. Indeed, he is right, but when those setts become full, the animals move out and set up new colonies and setts across the countryside. Mr Ruskell cannot be blind to the movement that happens at this time of year when badgers move out because mothers that are protecting the cubs that are born in their sett force non-mature adults and mature adults that are not part of the social clan to move out. Those adult badgers then establish temporary holding areas across the land. I have seen young badgers moving into areas, and I can give Mr Ruskell the example of one badger falling down a crack that had been caused by dry weather. The badger then holed up in there because it had been forced out of its sett and there was nowhere else it could establish itself.

It worries me that we are going to accidentally catch people who have no intention of damaging a badger or badger sett and who genuinely do not know that badgers are there. I offered the First Minister the opportunity of coming for a walk with me in the countryside to see what it is like. She refused my offer. I offer Mr Ruskell the same opportunity of coming for a walk with me and having a look at badger setts. I can show him plenty that demonstrate my example. He can take me up on that offer if he wants to.

Mairi Gougeon

During stage 2, in response to the arguments that had been advanced by Claudia Beamish and Mark Ruskell, I said that I did not believe that it was necessary, practical or proportionate to seek to apply a charge of vicarious liability to the numerous offences that they sought to apply it to, although I agreed to look again at what had been proposed. After giving the issue very careful thought and consideration, I think that it would not be unreasonable for the charge of vicarious liability to be applied to certain trapping and snaring offences.

Claudia Beamish’s amendment 39 is narrow and proportionate; the important point is that it applies the same criteria that the existing offences in the Wildlife and Countryside Act 1981 apply with regard to who can be held vicariously liable. The Government therefore supports amendment 39.

I turn to the other amendments that Claudia Beamish has lodged. Amendments 36 to 38 would apply the charge of vicarious liability to a number of offences under the Wildlife and Countryside Act 1981, including offences that are related to the protection of wild plants or the keeping or sale of invasive animals. However, as I said at stage 2, I have not heard any compelling reasons that demonstrate that vicarious liability is appropriate for those offences. We simply do not have the evidence to show that landowners and managers have been complicit in such crimes.

Mark Ruskell’s amendment 1 would apply vicarious liability to section 1(1) of the Protection of Badgers Act 1992, which deals with offences involved in the taking, injuring or killing of badgers, and section 1(3), which deals with the possession of a dead badger or a part thereof. I absolutely appreciate Mark Ruskell’s efforts in working on the amendment and the engagement that took place before stage 3. However, the amendment has significant drafting deficiencies, in that it is not at all clear who it is aimed at and who it would apply to.

We have already discussed the importance of specificity when it comes to matters of criminal law. Amendment 1 would extend the application of vicarious liability to any owner or manager of

“land on which badgers are found”.

That is an extremely wide-ranging and non-exhaustive definition. The amendment opens up the possibility of vicarious liability prosecutions being taken against a whole host of individuals, but it does not clearly define who those individuals are.

I draw members’ attention to the fact that section 12B of the Protection of Badgers Act 1992 states that, if a director knows anything about an offence made by their corporate body, or has demonstrated neglect resulting in an offence, they, too, can be prosecuted.

It is also important to remember that it is already an offence for someone to knowingly cause or permit to be done some of the offences that are covered by amendments 36, 37, 39, 40 and 1. That means that, should an employer or land manager instruct an employee to commit one of those offences, they would be liable for that offence.

In summary, I have looked at the situation very carefully. Amendment 39 was lodged to extend the existing vicarious liability provisions under the Wildlife and Countryside Act 1981 to certain offences involving traps and snares. However, I have serious concerns about the remaining amendments in the group, which is why I will not support them.

Claudia Beamish

I will press amendment 36.

I am very pleased that, after discussion with the minister and having worked with others, including Mark Ruskell, on vicarious liability, the Scottish Government will accept amendment 39. Illegal traps and snares are completely unacceptable. It is very unlikely that they will be used, but there will now be an absolute deterrent to prevent their use.

I do not agree with Finlay Carson that, because there is training on the setting of legal snares, that has an impact on whether a person is going to be ruthless and callous enough to use an illegal snare. I am therefore very pleased that vicarious liability has been moved forward by the Scottish Government, and I hope that other parties will support amendment 39.

It is very important that we have robust vicarious liability arrangements for a wider range of offences and that they become serious offences. The amendments in the group are proportionate, and there is a clear defence at the disposal of land managers and owners.

I refer to Edward Mountain’s comments. I am absolutely clear that there is a defence if someone genuinely does not know that they are doing something wrong, and that that relates to things such as badgers extending their colonies in the spring, which Edward Mountain highlighted.

The liability is limited, and it is important that we are able to take the matter forward. I ask for support across the chamber to make offences serious for the few who may commit them.

The Presiding Officer

The question is, that amendment 36 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Carson, Finlay (Galloway and West Dumfries) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Rennie, Willie (North East Fife) (LD)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Russell, Michael (Argyll and Bute) (SNP)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 21, Against 59, Abstentions 0.

Amendment 36 disagreed to.

Amendment 37 moved—[Claudia Beamish].

The Presiding Officer

The question is, that amendment 37 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Carson, Finlay (Galloway and West Dumfries) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Rennie, Willie (North East Fife) (LD)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Russell, Michael (Argyll and Bute) (SNP)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 21, Against 59, Abstentions 0.

Amendment 37 disagreed to.

Amendment 38 moved—[Claudia Beamish].

The Presiding Officer

The question is, that amendment 38 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Carson, Finlay (Galloway and West Dumfries) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Golden, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Kerr, Liam (North East Scotland) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Lochhead, Richard (Moray) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Rennie, Willie (North East Fife) (LD)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Russell, Michael (Argyll and Bute) (SNP)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, Kevin (Aberdeen Central) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wells, Annie (Glasgow) (Con)
White, Sandra (Glasgow Kelvin) (SNP)
Whittle, Brian (South Scotland) (Con)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 21, Against 59, Abstentions 0.

Amendment 38 disagreed to.

Amendment 39 moved—[Claudia Beamish].

The Presiding Officer

The question is, that amendment 39 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Boyack, Sarah (Lothian) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Rennie, Willie (North East Fife) (LD)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Ballantyne, Michelle (South Scotland) (Con)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Corry, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Simpson, Graham (Central Scotland) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

The Presiding Officer

The result of the division is: For 61, Against 19, Abstentions 0.

Amendment 39 agreed to.

Amendment 40 moved—[Claudia Beamish].

The Presiding Officer

The question is, that amendment 40 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Smyth, Colin (South Scotland) (Lab)
Stewart, David (Highlands and Islands) (Lab)
Wightman, Andy (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Ballantyne, Michelle (South Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Carson, Finlay (Galloway and West Dumfries) (Con)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Constance, Angela (Almond Valley) (SNP)
Corry, Maurice (West Scotland) (Con)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris,