Citizen Participation and Public Petitions Committee

Meeting date: Wednesday, December 21, 2022

Official Report 724KB pdf

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Continued Petitions

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Upland Falconry (PE1859)

Agenda item 2 is consideration of continued petitions. The first builds on the visit to Parliament of Stanley the golden eagle, which we enjoyed a fortnight ago. Therefore, we are discussing petition PE1859, which is entitled, “Retain falconers rights to practice upland falconry in Scotland”. The petition was lodged by Barry Blyther, and it calls on the Scottish Parliament

“to urge the Scottish Government to amend the Animals and Wildlife Act 2020 to allow mountain hares to be hunted for the purposes of falconry.”

The committee will recall that we heard directly from Barry Blyther at the meeting on 7 December. Once again, I thank Barry, Stanley and—I think—Roxanne for their contributions and assistance.

This morning, we are joined by Màiri McAllan MSP, who is the Minister for Environment and Land Reform. Welcome. We are also joined by Hugh Dignon, who is the head of the wildlife management unit at the Scottish Government, and Stan Whitaker, who is a wildlife manager for NatureScot. Good morning, and thank you all for being here. We have a lot to get through today so we are making an early start. Members would like to explore a number of questions. Do you want to say anything before we move to questions?

I will make some opening remarks to set the scene, if that would be helpful.

I thank the committee for inviting me to give evidence on the petition. We have said previously, and I reiterate it today, that we absolutely recognise the cultural significance of falconry: indeed, I am taking the Hunting with Dogs (Scotland) Bill through Parliament and, at stage 2, I rejected amendments that I felt could unjustifiably impinge on legal activity.

However, it is very much our view that hunting with birds of prey must be undertaken within the law. Mountain hares are now a protected species, following the passing of the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act in June 2020, which, of course—as the committee will have heard—means that mountain hares have been protected from 1 March 2021. That means that they can no longer be taken for sporting or recreational purposes.

Mountain hares have been protected principally due to concern about their having unfavourable and inadequate conservation status, together with the very real concern of many stakeholders and the public about the number of mountain hares that were being killed each year. On conservation status, the mountain hare is a priority species for conservation under the United Kingdom biodiversity action plan and it is also on the Scottish biodiversity list. That means that mountain hares are of principal concern and importance for biodiversity conservation. Of course, we are living in a climate and nature emergency.

However, I point out that birds of prey can still be used to take mountain hares for other purposes, where that is carried out under licence. That is dictated by section 16(3) of the Wildlife and Countryside Act 1981. I appreciate that a lot of the discussion has been about the risk of falconers taking non-target species, including mountain hares, when birds are being exercised and when they are hunting legitimate quarry, such as rabbits. Section 9 of the Wildlife and Countryside Act 1981 made it an offence for a person to “intentionally or recklessly” kill, injure or take a wild animal. Of course, we might get into some discussion about what constitutes an intentional or reckless act, but suffice it to say that accidental behaviour does not constitute unlawful behaviour, in that regard.

However, ultimately, as with any criminal offence, it is up to Police Scotland and the Crown Office and Procurator Fiscal Service to consider the evidence in the circumstances. I also point out that, prior to mountain hares being given year-round protection on 1 March, they were included in schedule 5A to the Wildlife and Countryside Act 1981, which contains the list of animals that were protected in their close seasons. I point that out falconers have had to contend with open seasons and close seasons for many years, which gives me confidence that they are able to conduct their activities in a way that abides by different requirements at different times.

I know that the convener and committee members will have a lot of questions, so I will leave it there, but I stress that I recognise the cultural significance of falconry and the people who practise it. I am always open to views on the adequacy, implementation and impact of legislation, but I stress that the decision was taken on the basis of conservation concerns, so curtailment of sporting activity is justified in that context.

At a previous evidence session, the petitioner clarified that the petition relates to upland falconry, and that there are different practices and different types of falconry. Upland falconry is what is relevant to the committee’s consideration of the petition. What is your understanding of upland falconry, and in what way do you understand it to differ from other falconry practices?

I appreciate that the petition focuses on upland falconry, but for the purposes of making legislation and policy development, I have to take falconry as a practice in the round, because we have not made—I do not think that we would make—law for different types of falconry in different places. However, I understand that there is a dense population of mountain hares in the uplands, particularly on land that is managed as moorland, which means that such areas are where falconers have practised their activity. Obviously, the density of the mountain hare population in such areas means that there is a propensity for them to be the quarry that is pursued.

The type of falcon is another difference that can be found between practices in the uplands and other areas, but that—again—comes down to the quarry that is pursued. You might find that smaller falcons are used in some parts of the country for smaller quarry. A small number of people use birds as large as eagles to take larger quarry, which previously included mountain hares.

I do not know whether Hugh Dignon can add to that.

A key aspect of what defines upland falconry is the prey species that are available in the uplands. As the minister said, mountain hares are a key prey species in some parts of Scotland and are found in high numbers in limited parts of Scotland. Another species that is routinely hunted by falconers in the uplands is grouse, which is an upland species that can be hunted without a licence with the permission of the landowner during the grouse open season. The type of prey that is available dictates to a large extent the sort of falconry that goes on in the uplands.

So the basis of your understanding is entirely restricted to the quarry that you believe the birds are trying to hunt and does not include the natural landscape that allows them to fly.

Obviously, the landscape has a bearing, but we would say that the—

The birds cannot take off without that landscape.

I am not sure that that is the case. I think that they can take off in other areas of the country. Obviously, a trained falconer would know a great deal more about that than I or we do, but we say that the quarry that is being pursued is the principal factor that differentiates upland falconry from other types, although there are other variables. Stan, do you want to come in?

Golden eagles live in relatively low habitats on the west coast and on our islands, and peregrines and other species that are used for upland falconry have happily taken up residence in many of our towns and cities and will happily fly and hunt in lowland areas.

Does the Scottish Government value falconry?

Yes. I value falconry in the same way as I value other cultural heritage, including sporting and recreational parts of Scottish culture. I accept that it is important to the people who practise it, and that there are economic advantages to its practice in the countryside.

An amendment to the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 that dealt with the ban on shooting of mountain hares was passed at stage 3. Is it correct to say that the Scottish Government did not consider any evidence whatsoever from falconers in relation to that measure?

Mr Ewing, I understand that you were the cabinet secretary at the time—

No, I was not the cabinet secretary who was responsible for that bill.

Well, the minister who took the legislation forward was a junior minister under both you and Ms Cunningham.

You are quite right that the amendment that dealt with the issue was lodged at stage 3 of that bill, so the Scottish Government was not able to undertake a business and regulatory impact assessment, for example, as we normally would. However, as I said in my opening remarks, as the minister who is now responsible I am always open to monitoring the impact of legislation and, equally, to hearing concerns about its effect.

It is factually correct to say that falconry was not mentioned in that process. There was no evidence about falconry. Nobody mentioned falconry at all at stage 3, no evidence was submitted and nobody from the falconry world had the opportunity to be heard. Is that right?

Again, owing to the speed with which stage 3, when the amendment was lodged, happened, we were not able to do the normal statutory assessments of the amendment before the legislation was passed. However, NatureScot worked closely with a range of stakeholders in the aftermath of the bill’s passage to design the licensing scheme that went alongside protected status for the mountain hare. They included—I think—the Scottish Hawk Board and others.

If you do not mind, minister, I want to press you in order that we get clarity about the point, because I think that it is factually incontrovertible that the falconry world had no opportunity to be heard. It was not consulted, it was not mentioned and no evidence whatsoever about falconry in relation to mountain hares was presented, submitted, discussed or mentioned by anybody during the passage of the bill. Is that factually correct?

I accept that the normal assessment could not be undertaken because of time. I accept that point. I do not accept that the falconry community could not have been heard because—as you know—when you take legislation through as a minister, you have an open door.

Did anyone consult the falconry community or reach out to it? Mr Dignon, did you say to the falconers, “Excuse me, but this amendment has come forward and we think you might be affected by it”? Did that happen?

I do not recall specifically speaking to folk—

You could maybe check that out.

I will move on, minister. You said that falconry could be carried out in other parts the country. We have heard from the petitioner—who has looked into the matter—that the only part of the country where they would be able to practise their sport without risking prosecution is Harthill service station. You have said that they can carry out their sport in other parts of the country. In which other parts of the country can they carry out their sport legitimately and without fear of prosecution, should their birds take mountain hares?

The last part of your question really sets the context, because we are talking about mountain hares, which are the one quarry that is now protected owing to the change in the law. The rest of the spectrum of quarry that falconers can take is still available to them. I point out that, even despite the protected status of the mountain hare, hares can still be taken for licensable purposes. There are two examples to mention: falconers can still take mountain hare under licence, and they can take other quarry.

On that, I will pass over to Stan Whitaker from NatureScot, because I understand that some licences have been issued since the 1 March implementation date. He might give us a bit of insight into where the practice continues in Scotland.

09:45  

We have issued 21 licences for control of mountain hares to prevent serious damage to young trees and natural habitats. Most of the control is done by shooting, but at least one land manager has approval to use falconry. Admittedly, most of that will be done in areas where there are recently planted trees, and some of those areas might not be very large, but a proportion will be suitable for hunting over.

Is that a serious answer to the question—that something like a golden eagle will be flying through trees? Is that really the proposition that you are presenting to us?

We are talking about trees that are less than 2 feet high.

The point is that, when the trees are young and vulnerable—

Is not it the case that the licence is afforded as a method of pest control and is completely unworkable for large birds such as eagles because of the risk of serious injury to the birds?

The licence is about control and protecting young timber and agricultural land. It is about conserving natural habitats. That brings me back to the point that I made at the beginning, which is that, owing to the conservation status of the mountain hare, it has been viewed by Parliament and the public as not appropriate—

Minister—

Please let me finish the point. It is not appropriate to be taking mountain hares for sporting purposes.

You have made the point, minister. We have limited time and I do not need to you repeat points.

If you repeat questions, I will repeat points.

I did not repeat the question. You indicated that the licence was an adequate method of control, but it clearly is not.

The petitioner made the point that, if everybody with a bird of prey—a falcon—let it loose every day during the open season, and every day it took a hare, it would take 50 years for those birds of prey to take as many hares as are shot in one year. Are birds of prey seriously a threat to conservation of the mountain hare?

I will turn to my colleague Hugh Dignon in a second. The correction that I will make to that point is to say that not all falcons could or would take a mountain hare. Only an eagle would.

Yes, but you commented a moment ago that the birds could legitimately hunt other prey, just not mountain hare. Is the eagle supposed to have some sort of education about which of the animals on the ground it is allowed to hunt?

No, that is the responsibility of the falconer.

Is that really practical in the context of upland falconry with a golden eagle?

I understand that it will be a new challenge for falconers—

It is a challenge that you really did not give any consideration to during the passage of the legislation because you did not give any thought whatsoever to taking evidence from people who would have been able to give an opinion.

As I said, the late stage of the stage 3 amendments—

That is not an excuse for poor legislation.

It is the reality, convener—

Mr Dignon, is there something that you want to say?

On the separate but related question that you asked about where people could fly the birds, the risk of a golden eagle taking a mountain hare is clearly high if it is flown over areas of high mountain hare population density. That is the case really only where we have managed grouse moors. In the rest of upland Scotland, which is by far the majority of upland Scotland, where eagles live and fly in the wild, mountain hare numbers are very low. If a falconer decided to fly their bird in a part of upland Scotland other than a grouse moor, the chances of it taking a mountain hare accidentally are low, and taking a mountain hare there would not be considered by most people to constitute intentional or reckless conduct.

There are plenty of other prey species in the wild that eagles can take, and there is no reason why someone should not fly the birds in areas of Scotland where mountain hares do not exist in such high densities as they do on managed grouse moors.

From the point of view of a falconer, if a falconer lets his bird of prey go and it takes a hare, the population of hares will be okay if the activity is concentrated on grouse moors where the land is properly managed, but there are other populations of hares.

The problem for falconers is that practising their sport exposes them to prosecution. Is that factually correct, or do you dispute that?

It does, in the same way as does the risk of their golden eagle taking any other protected species. For example, golden eagles are known to take—

Moving on from that—

Can I finish the point? Golden eagles are known—

You have answered the question, so I would rather move on.

What happened here was that, without any opportunity to be heard, a group of people within Scottish society were made into potential criminals; a criminal offence was created without their having any opportunity to give evidence in their own Parliament before they became subject to potential prosecution. The petitioner is therefore asking for the law to be amended to allow mountain hares to be hunted for the purposes of falconry.

Finally, I want to pursue the point raised by the convener, which is that the evidence that we have heard shows that the practice of falconry in Scotland is fairly restricted. It is not a huge sport: relatively small numbers of people and of birds of prey are involved. The number of hares actually taken as a result of falconry is infinitesimal. Therefore, the Scottish Government should surely agree with the petitioners and should grant the petition because the impact on the hare population is negligible.

Convener, you have previously stopped me from talking when I have tried to answer the question that has been posed, so I will not address the first part of Mr Ewing’s question again, but I can say that I am always open to considering the impact of legislation.

Secondly, the decision to protect the mountain hare is based on evidence of a risk to their conservation status. I can hear Mr Ewing asking himself what impact falconry has on that conservation status and would respond to that by saying that lawmakers must make decisions that are consistent across the piece. This is a question for us all: why would it be justifiable to make an exception to species protection for sporting purposes if we were to have a different treatment for those who need to control a species on a grouse moor or a similar place? I must respond to threats to conservation status during a nature emergency but I must also be mindful to take decisions that are consistent across the piece for all those who seek to hunt in the countryside.

If that argument applies, falconry cannot be carried out because it might take a few mountain hares. You have not answered the factual question about the impact of falconry on hares, but the evidence that we have heard—and that you have seen—is that the impact is negligible, infinitesimal, nugatory and irrelevant. You have not disputed that evidence. If you have, or if Mr Dignon has, further factual evidence, I would be very grateful if you could supply the committee with that after the meeting.

The point I want to put to you is this: you are saying that falconry is finished. Falconry cannot be practised because those who practice it face the risk of carrying out a criminal activity and therefore cannot practice their sport in Scotland. You are saying that that is correct and justified because of a law that was passed in respect of which those people had no opportunity whatsoever to be heard. Is that not a preposterous proposition?

My colleague Hugh Dignon answered that point thoroughly in his previous response, which was about all the ways in which falconry can continue in Scotland, despite the change to the law.

You talked about a distinction that you said we cannot make. The petitioners’ argument is that there are natural behavioural characteristics. There is clearly a difference in behaviour between someone who shoots hares with a gun and a bird that is displaying the natural characteristics that it has exhibited here in Scotland for an estimated 5,000 years, but that have now been made illegal.

As Mr Whitaker mentioned, we are talking about golden eagles and buzzards that fly on the west coast and the islands, where there is little obstruction. Those birds need to fly on the uplands. Their natural instinct on seeing, for example, a mountain hare, is to take it.

I will ask about legislation on animal welfare. Some captive birds of prey will never fly again because of the threat of prosecution to the owners. Does the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 override the Animal Health and Welfare (Scotland) Act 2006?

I have a couple of points to make in response to that. I do not accept that falcons can no longer be used because of the 2020 act. That goes back to Hugh Dignon’s description of the multitude of activities that can continue in Scotland with falcons. We have pointed to their being used for a whole range of quarry. We are talking only about mountain hares here, but they are used to take other species. Equally, in the case of mountain hares, they can still be used for purposes that are licensed.

That point is frequently put to me when it comes to legislation on wildlife management in the countryside. For example, I am asked what the impact is on dogs in relation to the hunting with dogs legislation and what the impact is on the falcon in relation to this legislation. I take that all into account.

You are right to point to the 2006 act. Under that legislation, the keeper of any animal has a responsibility to ensure that they do not cause it any unnecessary pain or suffering, and that they look after its welfare. That is still the case, regardless of other changes to the law.

If some golden eagles cannot fly in their natural habitat because they might take a mountain hare, how can an owner of such a bird allow it to fly, given the threat of prosecution?

Hugh has indicated to me that he wishes to come in.

I make the point that the risk of prosecution for an eagle taking a mountain hare is no different from the risk of prosecution that has existed for many years for an eagle taking any number of other protected prey species that form part of its natural diet. For example, golden plovers, curlews, red squirrels, adders and baby pine martins are all protected species and are all known to be part of the diet of golden eagles.

For many years, falconers have been working with that risk and managing it. They do not direct the birds on to such species. They can do the same with mountain hares. I do not accept that this is a new unmanageable risk that means that falconers must keep their birds at home. That is simply not the case. There are plenty of other protected species that have posed a similar prosecution risk. As far as I am aware, there has never been a prosecution for a falconer accidentally taking a protected species.

I will add to that by reiterating Hugh’s earlier comments about the best way to manage the situation is about understanding the density of the protected species and operating in areas where you are least likely to encounter them.

Would one solution to the petitioner’s request be for the Scottish Government to invite the Crown Office and Procurator Fiscal Service or the Lord Advocate to issue guidance indicating that no prosecutions will be taken with regard to falconers practising their sport?

No.

In that case, they are open to prosecution, so we are back to square 1, minister, with a group of people in Scotland—

I do not think that there is—

—being criminalised without the opportunity of having been heard.

I think that it would be a highly unusual activity for any law officer in Scotland to issue guidance saying that a criminal offence was not going to be prosecuted.

It strikes me that Mr Dignon’s explanation might explain why no evidence was taken at the time of the legislation. It is clear that Mr Dignon did not think that it necessary to take any evidence, because he had already determined that no issue was involved. The evidence would have been pointless. From the exposition that you have just given, it is quite clear that you did not think that there was any merit in taking any evidence. As far as you were concerned, the issue was clear-cut.

10:00  

To be absolutely clear, I was not actually present. I was away at the time that it happened.

The primary focus of the consideration was on the conservation status of the mountain hare and whether it was necessary to protect it. There were a number of people who we knew were not at all keen on the mountain hare being given protected status, not least people such as Scottish gamekeepers and recreational shooters of mountain hares. Falconers would have been a subset of those people.

The counterargument to protection was certainly considered, but, on whether the specific needs of falconry were considered, I could not say because I was not here. Given the speed of events at the time, I understand that it would have been quite difficult to do that.

The point that I am making is that, as it turns out, the position on mountain hares and falconers is no different from that on falconers in relation to other protected species, of which the uplands are full. All wild birds are protected; wild birds such as waders and grouse form a significant part of a golden eagle’s diet, and falconers manage that risk in the same way that they are perfectly capable of managing the risk with mountain hares.

Yet Stanley, who we met a fortnight ago, has not flown for two years.

I am sorry—I cannot explain that.

He has not flown for two years because of the risk of prosecution should he do so.

I would find it very surprising if a falconer could not find a place in upland Scotland where there was sufficiently low density of mountain hare for the falconer to fly their eagle with no particular concern about it taking a mountain hare rather than any other protected species that might be present.

Mr Whitaker, what is NatureScot’s view of the impact of falconry on mountain hare populations in Scotland?

We do not have accurate figures for how many mountain hares were previously taken by falconers. If it was, say, 1,000 that were caught, as one of the other witnesses who gave evidence suggested—

I think that the witness suggested that, if a falcon went out every day and hunted one mountain hare only, we would get to the figure of 1,000. However, on the law of probabilities, that is not very high. We have just had all your colleagues here say to us that it would be very unlikely that there would be a prosecution, because an accidental hare being hunted would be such a rare event.

Well, other falconers who we have spoken to when consulting about the issue have said that they can go out and take six a day if they are specifically going after mountain hares. Hunting over a six-week period, for example, one falconer could take 60 to 100 hares.

But you would accept that 1,000 hares, in the scenario that we have described, compared with the 26,000 to 38,000 that would be shot, is a small number.

We are talking about slightly less than 1 per cent of the population, but the population fluctuates quite considerably. On the overall mortality of mountain hares, the survival rate for mountain hares, year to year, is perhaps 50 per cent, at best. Therefore, that number of mountain hares might be insignificant at population level, but that does not mean that it would not have an impact at local level.

Okay. If it is 1 per cent, that is 1,000, perhaps, taken by birds of prey each year, and 26,000 to 38,000—at the absolute maximum, 50,000—are shot each year. Is the legislation proportionate in terms of the impact that it has had on those who fly birds of prey?

I do not know whether we have a view on how proportionate the legislation is.

That is a policy question, to be fair. We act on the basis of advice that NatureScot gives us on the conservation status of and risk to animals, but it is for us to make the decisions. I absolutely accept that there is a marked difference in the numbers that are taken by shooting mountain hare and those that are taken through falconry. However, I come back to the core point, which is that our statutory advisers, NatureScot, are telling us, in a nature emergency, that there is a conservation risk to mountain hare. We have to be prepared to take action in the face of that. That action has to be proportionate but, equally, consistent.

Again, I acknowledge the concerns of the petitioner, and everything that the committee has said, but, equally, I ask how we could justify action that restricted people’s ability to take an animal for recreational purposes by shooting but did not apply similar conditions on those who would take it by other means. It is about consistency.

As I have said, for example, throughout the current consideration of the Hunting With Dogs (Scotland) Bill, we are grappling with those questions of consistency in all the ways that people seek to hunt with dogs in the countryside. We have to have a consistent approach.

Minister, you said that NatureScot is advising you. Stan Whitaker admitted earlier that NatureScot has no idea how many mountain hares are taken by golden eagles or buzzards. How could the Government take such advice, if NatureScot has no idea about what is happening?

I do not think that Mr Whitaker said that NatureScot has “no idea”. What he said, I think, was that such figures are not collected.

Basically, that means having no information.

It does not mean that. NatureScot has officers who are integrated into their communities and who understand a great deal about what is happening in those communities. The point is that the advice that we took from NatureScot was about the conservation status as a whole, and we had to respond to that.

Thank you, minister, for your points so far. You made a point about balancing and being consistent about legislation. I note a point that was made by our witness Barry Blyther at his recent session with us. He said:

“When we look at the Wildlife and Countryside Act 1981, we note that, for the very same reason, there is an exemption from the legislation that protects birds

‘for the purposes of falconry’.”

It explicitly mentions falconry. Mr Blyther continued:

NatureScot has suggested that it does not understand why the same derogation has not been applied in the legislation that is relevant to mammals, and, indeed, it does not support such an omission. All that is required to correct that is a small amendment to the legislation to bring mammal and bird legislation into line. Such an amendment would be far less complicated than that which has already been imposed, and it would not require any change to primary legislation.”—[Official Report, Citizen Participation and Public Appointments Committee, 7 December 2022; c 23.]

The art of falconry is 4,000 years old. It is protected by the United Nations Educational, Scientific and Cultural Organization as an intangible cultural practice. It has been carried out in Scotland since at least the Norman conquest and the emergence of medieval society in Scotland.

To balance the cultural practices, the minimal risk in practice and reality, and the fact that there is a precedent with regard to birds of prey feeding on other birds—as opposed to mammals—is there the potential to make a minor amendment that would give comfort to falconers that they can carry out a protected cultural practice that has existed in Scotland for a thousand years or so? That would give a decent balance and allow the issue to be resolved amicably. On the balance of risks, it is probably a useful way to proceed.

I thank Mr Sweeney for his point, and I understand that that is the premise of the petition. As I have said, I will consider all suggestions and all the ways in which the legislation that we pass impacts on the people who are affected by it. However, my contention today is that the interference in the ability of falconers to take mountain hare—which I understand is an interference, albeit that, as Hugh Dignon has pointed out, that activity can still take place elsewhere, and falconers are still able to take other species—remains justified on the backdrop of the conservation concern for the mountain hare. Of course, I am very open to considering concerns.

This has been an eye-opening session, minister, and I am staggered at some of the responses so far—at the complete lack of understanding of the situation and circumstances that we have heard.

On the licensing system, the Scottish Government says:

“The Scottish Government believes that the licensing scheme for the control of mountain hares … does not impact on the ability of falconers to enable their birds to exhibit normal behaviour patterns.”

We have heard that the licensing scheme is completely and utterly unworkable, so do you believe that statement? It is not the position of the profession, which is able to understand what is taking place, but the Scottish Government fundamentally believes that it is the case. Do you still believe that it is?

Will you repeat the statement?

It is:

“The Scottish Government believes that the licensing scheme for the control of mountain hares … does not impact on the ability of falconers to enable their birds to exhibit normal behaviour patterns.”

It is about the protection of the mountain hare, not the licensing scheme itself. The licensing scheme is an example of how, despite the ban, falconers who operate with golden eagles still have the opportunity to take mountain hares.

The profession says that the licensing scheme is unworkable in the situation. It has indicated that it is completely unworkable because the birds are not able to “exhibit normal behaviour patterns.” You indicated that 21 licences have been issued, which is a small number.

I will pass over to NatureScot to answer on whether that is small number of licenses, given that the legislation has been in force for only a short period.

I clarify that the 21 licences were mostly to protect young forestry plantations and some natural regeneration schemes. Before the change in the legislation, we issued a similar number of licences to protect—

Is that for birds of prey or shooting?

They were for taking mountain hares, so they were mostly for shooting but they can be for taking with birds of prey if that is what the land manager wishes to do.

You are indicating that the majority of the 21 licences are for shooting. Is that the case?

Yes, all except one.

So only one licence has been requested that would deal with birds of prey.

If Stan Whitaker is telling us that that is the case, it is the case. Let us be realistic: that reflects—

Do you not believe, minister, that that is a very small number of licences to have been issued for that whole profession?

It depends on the context. The legislation has been in force only since March 2021 and the division of licences reflects the discussion that we had about the fact that mountain hares are far more frequently taken by shooting than by birds of prey. That is just a reflection of the state of play.

It is a reflection of the fact that the birds have not flown for two years.

The petition was lodged on 24 March 2021, minister, so the Scottish Government has had 18 or 19 months to consider it. Indeed, we got an initial reply about a year ago. Although I hear that you are willing to consider solutions, we have not heard any this morning. The impression that I get—I cannot speak for my colleagues—is that the Scottish Government has no intention of coming up with a solution, that NatureScot has done nothing to reach out to the falconry world, that the evidence that you have is scant or non-existent and that falconry might as well be finished under the Scottish Government’s approach.

If I am wrong—and I very much hope that I am, minister—I ask you to prove it. Come up with a solution that allows the sport of falconry to continue for centuries in the future as it has in the past. That is what we are asking for. I have suggested one solution, which you dismissed out of hand. What are your solutions? We have heard that a group of Scottish society that is small but that, nonetheless, you say that you value is getting no support, consideration or sympathy from the Scottish Government. I, for one, feel that that is shocking.

If the solution that Mr Ewing is referring to is that I instruct law officers to make a statement that a criminal offence will not be prosecuted, he is doing a disservice to the legal profession that he was once part of. It is just not a realistic solution.

I have in front of me the three written submissions that the Scottish Government has made to the committee. I am here today in good faith. I do not believe that the changes made to the protection of the status of one species undermine the practice of falconry in Scotland to the extent that Mr Ewing suggests. We have to bear in mind the fact that the golden eagle is probably the only species of falcon that would be large enough to take a mountain hare. Falconers use a range of other species and they pursue a range of quarry.

There is also a licensing scheme for the protection of young timber and agricultural land and the preservation of natural habits that allows for the taking of mountain hare. That would be an opportunity for those who have golden eagles to exercise and use their birds in that way.

I believe that all of that is justified on the basis of the advice from our statutory advisors, NatureScot.

I appreciate the fact that you are here in good faith. It has been testy because we have become quite exercised across all parties in the consideration of the petition and the evidence that we have received.

You talk about the evidence from NatureScot but I am trying to understand the circumstances. This was a stage 3 amendment. You said earlier that none of the normal practices or procedures were carried out. From Mr Ewing’s questions, we have established that there was no outreach, no evidence taken and no mention of falconry whatsoever before the amendment. In what circumstances did the amendment to the legislation at stage 3 arise? Did somebody pick up the phone or push open the door and say, “Heck! We have just realised that we forgot all about falconry in this legislation. We had better rush through a stage 3 amendment”? You talk about the advice from NatureScot, but it was not received at any point during the progress of the bill through Parliament. It was received as an afterthought so that you lodged a stage 3 amendment with no consultation, consideration or discussion.

It is important that we reflect the situation accurately and that we use accurate language. You have just put it to me that I said earlier that none of the normal processes were followed, but that is simply not the case. What I said is that the business and regulatory impact assessment that we would normally have wanted to undertake was not possible because of the late stage of the amendment.

You have asked about what happened in practice. An amendment was lodged by a party that is not in Government and, as would normally happen, the Government considered how it would approach that amendment. Of course, the amendment being lodged at stage 3 means that it did not form part of the substantive scrutiny and debate that had taken place up to that point. When an amendment is put in front of the Scottish Government, the Government then responds by doing the research that we need to do into how we will respond to that amendment, including speaking with our statutory advisors. The conservation concerns that NatureScot put to us, together with the significant concerns of the public, brought us to the view that the amendment was acceptable and we would work with the industry thereafter to formalise the licensing scheme.

In his evidence to the committee, Mr Whitaker said that he was unable to tell us how many mountain hare had ever been taken by birds of prey in any given year. What then was the substantive underpinning of the evidence that you received from NatureScot?

It was specifically to do with the threatened status of the mountain hare as a whole.

I thought it was in response to a stage 3 amendment from a party that is not in Government that sought to include birds of prey and falconry in the amendment.

The amendment was not specifically about falconry. It was about giving protected status to mountain hares and putting them on to schedule 5 to the Wildlife and Countryside Act 1981. That is the schedule under which the sporting and recreational taking of a species is prohibited.

So when I asked a moment ago what the circumstances were that allowed for birds of prey to be included, there were not any.

The law does not specifically pick out birds of prey. It says that the species is protected if it is on the schedule, and it can be taken only for specified purposes. Recreation or sport are not among those purposes. That is how birds of prey taking mountain hare comes into this. It was not specifically about birds of prey, it was about putting that species into schedule 5 to the WCA and making it a protected species.

Well, thank you. We will consider the evidence that we have heard this morning. I appreciate the contribution that you have made, minister. You can, however, see that the committee is quite exercised so we will have to consider whether we think that we have had answers to the questions that led us to invite you along this morning. I am grateful to you for the time that you have taken and for engaging as whole-heartedly as you have. Thank you all.

10:20 Meeting suspended.  

10:22 On resuming—  

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Taxi Trade (PE1856)

Welcome back to the final meeting of the Citizen Participation and Public Petitions Committee in 2022.

Illustrating the diverse range and nature of the petitions that we consider, we now move from upland falconry to support for the taxi trade. PE1856, which has been lodged by Pat Rafferty on behalf of Unite the union, calls on the Scottish Parliament to urge the Scottish Government to protect the future of the taxi trade by providing financial support to taxi drivers, setting up a national stakeholder group with trade union driver representatives and reviewing low emissions standards and implementation dates.

Members will recall that, during our previous consideration of this petition, we took evidence from Calum Anderson on behalf of Unite and from Murray Fleming on behalf of the Scottish Taxi Federation. They made a number of proposals for improvements that could provide greater support for the taxi trade. We subsequently received written information from the Scottish Taxi Federation, providing details of the financial implications of becoming low emission zone compliant.

The issues raised at our previous meeting, and the information about proposed improvements, are all contained in our meeting papers. Do members have any suggestions as to how we should proceed?

I suggest that the committee should write to the Scottish Government, highlighting the solutions proposed by the petitioner and the Scottish Taxi Federation and asking it to consider those.

Are members content with that suggestion?

It might also be relevant to write to the Convention of Scottish Local Authorities, which tends to manage taxi licences and the introduction of measures such as the low emission zones that are having a detrimental impact on the taxi trade, to ask for its view on how those can be more appropriately managed. We could also ask what remedies might come from Government, such as financial support for the transition to compliant vehicles. There seems to be a disconnect between the regulations applied by local government and the national funds that have been established to support the transition.

Okay. Are we content?

I agree with those suggestions. When we write to the Scottish Government, could we specifically ask if it would advise in what ways the taxi trade as a whole is brought into discussions and policy making? I get the impression that the taxi trade in general feels that it is a bit of a Cinderella, because other forms of public transport are routinely involved in every forum, committee and policy-making body, but the taxi trade is outside the room. That issue came across in the evidence.

It did. I recall that the Scottish Government previously responded that there is no definition of public transport, and that it would seek to engage. However, we have heard that that engagement is sporadic and is not structured in the way that it is with other forms of transport, and that something far more direct and accountable to the industry would be appropriate. Do we agree to include that general sentiment?

Members indicated agreement.

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Domestic Abuse (Gender) (PE1909)

PE1909, on removing the “gender-based crime” domestic abuse narrative and making it gender neutral and equal, was lodged by William Wright. The petition calls on the Scottish Parliament to urge the Scottish Government to make domestic abuse policies, guidance, agendas and practices gender neutral; to introduce equal domestic abuse provision and funding for everyone in Scotland, regardless of any protected characteristic; and to ensure that all domestic abuse joint protocol guidance, policies and practice for Police Scotland and the Crown Office and Prosecutor Fiscal Service are gender neutral.

At our previous consideration of the petition, the committee agreed to write to the Scottish Government, Police Scotland, the ManKind Initiative, the Paul Lavelle Foundation and Men’s Aid Ireland. The Minister for Equalities and Older People has advised that the Scottish Government is engaging and consulting on a national strategy on ending intimate and sexual violence against men and boys. She thanks the petitioner for his interest in this area of work, and notes

“the importance of developing this strategy, which will be complementary to the Equally Safe Strategy which addresses violence against women and girls.”

The ManKind Initiative says that a fully gender-informed approach should be taken to domestic abuse, and that framing it as a gender-based crime leads to unequal outcomes for male and LGBT+ victims.

Police Scotland states:

“There is no variance in the current training provided to officers on how to support victims of domestic abuse based on the victims’ specific gender.”

It outlines Abused Men in Scotland’s work on Police Scotland’s domestic abuse forum, which informs the police’s strategic direction in relation to domestic abuse. Police Scotland also reiterates that the definition of domestic abuse does not distinguish victims or perpetrators on the basis of sex or gender.

William Wright has provided us with further information about his experiences as a male victim of domestic abuse. He says that statistics on crimes committed against men contradict the view that men in Scotland have privilege that enables them to oppress others.

In view of everything that we have heard and the response from the Government and agencies that are now seeking to reach out and take the issue seriously, do colleagues have any reflections on how to proceed?

Considering all that we heard from you just now and the fact that the Scottish Government is engaging and consulting on the development of a national strategy on ending intimate and sexual violence against men and boys, which will complement the equally safe strategy, along with all the evidence that we have been given, I am happy to close the petition under rule 15.7 of standing orders. I genuinely do not think that the committee can take the petition anywhere.

Are we agreed?

Members indicated agreement.

We invite the petitioner to take note of the initiatives that the Scottish Government has said that it will progress. It is obviously open to the petitioner to return if he feels that that does not deliver as is hoped. We thank the petitioner very much for his petition.

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Human Tissue (Scotland) Act 2006 (Post Mortems) (PE1911)

The next petition is PE1911, which is on a review of the Human Tissue (Scotland) Act 2006 as it relates to post mortems. We are joined by a number of people in the public gallery who are directly affected and involved. We are also joined by Monica Lennon, who has an interest in the petition.

The petition, which was lodged by Ann Stark, calls on the Scottish Parliament to urge the Scottish Government to review the 2006 act and relevant guidance to ensure that all post mortems are carried out only with permission of the next of kin; that brains are not routinely removed; and that tissues and samples are offered to next of kin as a matter of course.

At our previous consideration of the petition, we agreed to seek additional information from a number of bodies, and responses from them are included in our meeting papers.

The Royal College of Pathologists confirms that resource concerns are not the only or main reason for its disagreement with the proposal to automatically offer tissue samples to the next of kin. It reiterates the challenges regarding timescales and practicalities.

The chief coroner outlines the process of tissue retention and return in England and Wales, and includes a link to guidance on computed tomography scanning for the purposes of post mortems.

We have a written submission from Ann Stark, whom we thank for her assiduous contributions to our deliberations. Her submission highlights the use of body scanners as an alternative to post mortems, and additional information from her about their use has been summarised in the meeting papers that we have received and considered. She stresses the importance of people having a choice about how their body is handled and the importance of consent.

The committee has also received a number of written submissions from individuals in support of the petition and of the points that the petitioner has raised in written evidence.

As I said, we have Monica Lennon with us. Welcome once again to our proceedings, Monica. Before I open up the discussion to members of the committee, if there is anything that you would like to say in support of the petition, I invite you to do so.

Good morning, convener. I am grateful to the committee for the opportunity to speak about the petition again. I will avoid repeating points that I have made previously.

I join the convener in thanking Ann and Gerry Stark, who are in the public gallery. I thank Ann for lodging the petition and for all the work that she has done to get to this point. They have raised difficult issues that many people cannot even face talking about, but the committee has had a number of supportive submissions from individuals who have had similar experiences.

Committee members know what the petition seeks to do. On the additional information that the committee has had since we last met, the information from colleagues in England is really important, particularly the submission from the coroner. We can see that there is a different approach in other parts of the UK, and divergence can be a good thing. When we have families telling us that there are serious issues about consent, proportionality and dignity for the deceased and their families, we have a duty to look at those issues. I really welcome the additional work by the committee, and I think that the submissions that have been received are helpful.

I still have concerns about the resource and workforce pressures that are raised in the submission from the Royal College of Pathologists. Those issues go beyond this petition, and they merit further explanation. I would certainly like to hear more from the Scottish Government.

To recap, we are here because of Ann and Gerry, who are the parents of Richard Stark. Richard was only 25 when he died in June 2019. It was a sudden and unexpected death. The committee might recall that Ann and Gerry had to fight for a very long time to get answers. Richard’s death certificate was changed about 18 months after he passed away, with the cause of death changed to being a suspected seizure.

Committee members will also be aware that the post mortem was very invasive. I know that this is not pleasant to hear, but, in the committee’s papers, there are details about Richard’s brain, tongue and other body parts being removed.

We have heard evidence about the use of scanners, particularly in different authorities in England. There are resource implications and costs to that, but we have heard how effective those scanners can be.

I am aware that the committee has been given a lot of information, but last week you got an email with a link to a video produced by professors at the University of Leicester. If you have not had a chance to look at that video—I think that it is only three minutes long—I would refer you to it.

On the aspect of the petition that relates to tissue and consent and the role of the next of kin, it should never take a family several months to find out what has happened to their loved one after death. In this case, we are talking about 65 tissue samples, and Ann had to fight the system to have those samples returned. This is going on and people are not talking about it—often because they do not know. Ann knew about it only because she was asking questions. That tells the committee that there are a lot of unknowns.

As you can imagine, it is difficult for Ann and Gerry to sit here today, so I do not want to add much more other than to say that we appreciate the work that the committee has done so far. Ann has felt voiceless in the whole process. The committee has been the only forum in which these issues could be brought into the public arena, so we really welcome the work that has been done. We note that the chief coroner has highlighted a number of points, and I believe that there has been an offer to connect the committee with senior coroners who have experience of the scanning technology. It would be very worth while to pursue that.

I am happy to stop there, convener. Thank you.

Thank you, Monica. Thank you also for offering comment on behalf of the petitioners on this very difficult and sensitive petition. Having considered the evidence on the petition, I can say that we take the issues that it raises very seriously and that we want to explore it further. I suggest that we invite coroners and pathologists to give evidence, because I would like to understand the differences in approach between Scotland and England and to bottom those out.

Once we have taken evidence from coroners and pathologists, I wonder whether we could invite the relevant minister to come before us to give evidence.

We would therefore hear from coroners and pathologists and subsequently seek to hear from the minister in pursuit of the petition. Do colleagues have any other suggestions, or are we content to proceed on that basis? I see that we are content. We take the petition very seriously. We will keep it open, and it will obviously form a significant part of our workstream as we go forward. I hope that the petitioner feels that we are taking this seriously as we explore the issues raised and take oral evidence.

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Free Rail Travel (Disabled People) (PE1928)

PE1928 calls for free rail travel for disabled people who meet the qualifications for free bus travel. The petition was lodged by David Gallant, and the committee heard from David and from Nicoletta Primo of Sight Scotland earlier this month, when we discussed the accessibility issues that disabled passengers face when using rail travel versus bus travel and how an extension of the national entitlement card scheme to provide free rail travel might be financed.

We heard about a lack of consistency in the way that discounted fares or companion travel are applied in different areas and the confusion that that creates for passengers and rail staff. We heard of individuals boarding a train where there is a concessionary scheme in place but getting off the train where there is not a concessionary scheme in place and then being asked to pay for a ticket.

As a result of that discussion, the committee has written to the local authorities that offer discounted fares for companion travel to find out more about the scheme and how it operates in practice. Members might also be aware that the issue of free rail travel for blind and partially sighted people and their companions was the subject of a members’ business debate on 13 December. During the debate, the Minister for Transport indicated that Transport Scotland has been commissioned to look into the costs of a national scheme and that it will review the approach to companion travel as part of the fair fares review. In the light of that information, certain questions might present themselves as a way to proceed. Would colleagues like to recommend any?

Given the assurances that the minister gave in the debate, I suggest that we write to the Scottish Government to ask what consideration it is giving to introducing a national policy for companion rail travel, and to ask it to confirm that the fair fares review will consider free travel for companions and people with disabilities.

It might be sensible for us to wait for the responses that we are expecting from local authorities and then write on the back of that evidence. Are we all content with that as the next step forward?

Members indicated agreement.