Seòmar agus comataidhean

It was 205 and 232.

Rachael Hamilton’s amendment 22 seeks to change one of the tests for granting a licence from

“there is no other solution which would be effective”

to “there is no other solution which would be practical”. I have considered that very closely. To simply substitute “practical” for “effective” could significantly weaken a key licensing test, so I cannot support that today. However, I accept that there are situations in which a solution would be effective—say, in preventing predation from taking place—but might not be practical to achieve. For example, building and maintaining a high fox-proof fence around a large field might be effective in keeping foxes out, but there is a question about whether it would be practical to achieve for the farmers who would be involved.

On the other hand, it could be argued that, for a solution to be considered effective, it is implied that it would be practical. However, I would like to give further thought to that and, if necessary, come back with an amendment at stage 3 to cover those points.

Amendments 206, 210, 233 and 235, in Rachael Hamilton’s name, would allow a licensing authority to specify any number of dogs rather than the minimum number that would be effective. I do not support those amendments. The requirement for the licensing authority to specify the maximum number of dogs that are to be used is an important safeguard to maintain the tightly construed licensing scheme that we want. With any other approach, we would risk creating loopholes, and that must be avoided. Having the minimum number specified by the licensing authority is consistent with our approach of ensuring that we use more than two dogs only when there is no other effective solution.

Amendments 23 and 34, in Rachael Hamilton’s name, which were earlier alternative amendments to 206, 210, 233 and 235, would adjust the wording of the test rather than delete it altogether. I repeat that the requirement for the licensing authority to specify the maximum number of dogs that are to be used is in our view an important safeguard that we will seek to maintain, so we cannot support those amendments.

I support amendments 157, 160, 172 and 173, in the name of Jim Fairlie, for all the reasons that have been stipulated. For the sake of time, therefore—if Jim Fairlie does not mind—I will move on.

Amendments 116 and 130, in the name of Colin Smyth, would amend sections 4 and 8 respectively. They propose that applications for a licence to use more than two dogs should be subject to adherence to a set of standards. There has been some discussion about that. I am sympathetic to the intention behind these amendments and I listened closely to what Colin Smyth had to say.

I know that NatureScot has looked closely at the international ethical principles of wildlife management and examined how those compare to its own shared approach, which, again, has been discussed. I have confidence in the shared approach, not least because it was discussed and developed over a long period of time and brought together a range of diverse stakeholders around points on which they could coalesce.

However, the main point that I put to Colin Smyth today is that the Scottish Government is shortly to commission a review of licensed wildlife management, which will look at welfare aspects and may recommend changes across the board. As previously discussed with regard to fees, I am reluctant to make changes to a particular category when a larger piece of work, which will look at the issues as a whole, is coming down the track. For that reason, I cannot support amendments 116 and 130.

I turn to amendments 207, 208, 24 and 25, in the name of Rachael Hamilton. I am not persuaded by these amendments. I think that a year is too long for the validity of a particular licence, bearing in mind the need to maintain tight control. The deletion of a maximum period through amendments 207 and 208 would appear to remove the licensing authority’s ability to license fewer than 14 dogs and would require it to license 14 dogs, which we could not support. I am sorry; I mean 14 days—I am getting confused now. We therefore cannot support these amendments either.

Having said that, I am aware that there is concern about the time period over which the 14 days could be used. I have listened carefully to the discussions on the licensing period in section 3 and to the evidence that the committee has heard. I remain of the view that 14 days is the correct maximum number of days for a licence to cover. I am persuaded, however, that there could be more flexibility around the period in which those 14 days could be used. I propose a maximum number of 14 days to be used in a period of six months. Again, that does not allow any more days of activity, but it allows for flexibility to deal with things such as a change of plans, bad weather and unforeseen events.

Amendments 211 and 236, in the name of Rachael Hamilton, would insert the word “other” into licensing provisions in section 4 and section 8 respectively, so that, where the bill says that licences

“must specify ... any conditions to which the licence is subject”,

the wording would be changed to read “any other conditions”.

I understand the intention, but the thinking is incorrect, as it confuses what those subsections are. They are not conditions—they list the information that must be specified in the licence. The amendments would therefore not work, and I ask Rachael Hamilton not to move them.

I turn to Christine Grahame’s amendment 161 and the point about publication of a register of licences under section 4. I am sympathetic to that; transparency in how licences operate is always desirable. NatureScot already successfully shares a lot of information on wildlife management licences, not least—as has been seen recently—in detailed reporting on the operation of the licences to manage beavers, so there is a precedent. There are also plans to publish data on all of NatureScot’s licences, but we need to work carefully through the general data protection regulation legislation in order to do that in a way that is legally watertight and does not undermine the GDPR.

That being the case, and having listened to the exchanges, I will continue to consider Christine Grahame’s points, and I assure her today that I will commit to going as far as possible within the remit of the GDPR to publish what it is that she is asking for.

Well, it has, because the framework of it is there in the bill, and we have said from the beginning that the bill will set out the fundamental parts of the licensing scheme and that that will be supplemented by guidance.

Consultation has informed what is in the bill, just as it will inform what is included in the guidance, so it is not correct to suggest that taking into account stakeholders’ views in the aftermath of the bill would be problematic because we would not be able to undo what had been done before; their views have been part of the process from the beginning and they have shaped much of what we have in front of us, just as they will shape the guidance.

I have two more sections to address. Amendment 104, from Edward Mountain, which inserts an additional section that requires NatureScot to either grant or refuse a licence on receipt of a licence application and allows the Scottish ministers the ability to decide whether a licence has been reasonably refused. We touched on that subject earlier, so, if you do not mind, I will not deal with it again but will move swiftly on to amendments 105 and 106.

Edward Mountain made a point about replacing references to SNH with references to NatureScot, which is not required, because Scottish Natural Heritage remains the correct legal name. That is set out in the Natural Heritage (Scotland) Act 1991, and it should be used in this context. Edward Mountain referred to the constant changing of names, but I think that one change in 20-odd years is not bad.

I already have great confidence not only in NatureScot and its expertise, but in the good relationship that exists at a local level between NatureScot representatives and the people with whom it works in various ways, which Jim Fairlie pointed out. That will only improve and, as I say, NatureScot and I are committed to continued consultation with people who would seek to use that section of the bill.

The point about the difference between the amendments is more of a technical one. Ultimately, we cannot say that it is for the applicant to decide on the number of guns; it must always technically be for the licensing authority to make that judgment in all circumstances. That is the licensing authority’s duty to fulfil, but I have every confidence that there is a good relationship there and that there will be a good understanding of what is required. The fact that applicants will be able to give an indication of what they think will be the correct number of guns will be useful in that regard but, ultimately, the decision must lie with the licensing authority.

I move on to Edward Mountain’s amendments 72, 103 and 107, which would add a new section and amend sections so that NatureScot could not implement a fee. The provisions in the bill around the potential for NatureScot to charge a fee are similar to those that are in other legislation under which NatureScot operates a licensing scheme, such as those under the Wildlife and Countryside Act 1981 and the Conservation (Natural Habitats, &c) Regulations 1994. I do not see why our approach would differ under the bill. The Scottish Government has committed to reviewing the approach to charging for licensing generally in the near future, so it would not be correct to pursue differences in this scheme when that review is shortly coming down the track. For those reasons, I do not support those amendments.

Amendments 168, 148, 150, 152 and 154 would introduce a new section after section 6 of the bill. That new section would create a new exception to the offences in sections 1 and 2 of the bill to allow for searching for injured wild mammals.

The exceptions already in the bill allow for the use of up to two dogs to search for an animal that has been injured by an attempt to kill it in the course of hunting with dogs. However, as drafted, the bill does not allow the use of dogs to search for a wild mammal that has been injured in a manner not related to hunting.

Engagement with stakeholders at stage 1, including Forestry and Land Scotland, highlighted that it is necessary to include an exception that allows the use of dogs to search for an injured wild mammal in those circumstances. For example, FLS has, on occasion, deployed dogs to search for deer that have been injured as part of a road traffic accident or where a member of the public has spotted an injured animal on its land.

The committee also acknowledged the comments made by stakeholders during its evidence sessions and noted the absence of a provision to allow for two dogs to search for and retrieve a wild mammal that has been injured not in the course of hunting. In my response at stage 1, I announced my intention to address that.

Similarly, amendments 169, 149, 151, 153 and 155 introduce another new exception that allows the use of up to two dogs to search for dead wild mammals. The definition of wild mammal in the bill does not specifically exclude deceased wild mammals. Therefore, it applies to living and dead wild mammals that fall within the definition, and, to allow the use of a dog to search for a dead wild mammal, we need to provide an exception.

Having spoken to stakeholders, I am aware that there are many different examples of a variety of people using dogs to search for dead wild mammals for a variety of purposes. Examples that the committee will be interested to note include Police Scotland searching for dead wild mammals as part of the investigation of wildlife crime or researchers and surveyors assessing the impact of any manner of developments on different species.

To prevent a loophole where a person could use either of those exceptions as a cover for the illegal hunting of live wild mammals—for example, by claiming that their pack of 10 dogs was searching for an injured or dead wild mammal—we have applied the same safeguards that have been included in section 3 and sections 5 to 7. Namely, the person using the exceptions must not use more than two dogs, must take steps to ensure that those dogs do not join others to form a pack and must have permission from the landowner or be otherwise authorised to enter land.

Amendment 168A, in the name of Rachael Hamilton, would remove the two-dog limit from the new exception under amendment 168. As I have said, that would be a very obvious loophole, as it would allow more than two dogs—actually, any number of dogs—to search for an injured animal. I can see how a person could very easily claim that their pack of 10 dogs was searching for injured wild mammals as a cover for illegal hunting.

To be clear, the two-dog limit that is used throughout the bill is there because, as we have discussed, there will be greater control over one dog or two dogs than there would be over a pack of dogs. Where there is less control over a pack of dogs, there is always a higher risk of more than two dogs chasing and killing a wild mammal.

Like Rachael Hamilton, I ask members to bear with me as I go through the amendments.

I begin with amendments 1, 3, 5, 7 and 13, in the name of Ariane Burgess, which seek to remove section 5 entirely from the bill. In developing the bill, I have sought to balance the highest possible animal welfare considerations against the need for effective wildlife management, as I accept that the latter is necessary in our rural nation. I know, however, that the use of dogs underground is a very polarising issue, and Ariane Burgess spoke clearly to some of the live welfare concerns. I understand why she lodged her amendments, because I, too, have heard the evidence about the use of dogs underground and how that can pose a risk to the welfare of both the wild mammal and the dog.

That is why the bill places a strict limit on the purposes for which dogs can be sent underground and the species of mammals that they can be used to search for and flush. Ultimately, from the work that my officials and colleagues and I have undertaken in developing the bill, it has not been clear that there is a viable alternative when it comes to fox control. No more humane methods have been put to me that would fulfil the same function. In fact, it has been put to me that some less humane methods may be used, including blocking up a den, which would result in starvation. I think that everybody would want to avoid that. After giving the matter a great deal of thought and weighing up all the evidence that has been put before me, I am therefore unfortunately unable to support those amendments.

Amendments 73 to 96, in the name of Edward Mountain, would—as we have discussed—add weasels, stoats, polecats and ferrets to the list of wild mammals that can be searched for or flushed using a dog underground. I have seen no evidence that it is necessary to allow the use of dogs underground to control those mammals. As I rehearsed earlier, the polecat is one of Scotland’s rarest mammals and a priority species under the United Kingdom biodiversity plan.

The welfare concerns that are inherent in the use of dogs below ground mean that we must ensure, as I just said in responding to Ariane Burgess’s amendments, that these provisions are drawn as narrowly as possible. As Jenni Minto described, projects on Orkney and throughout the country have used other effective methods, such as trapping, to ensure that those species can continue to be controlled in the best way possible. I will therefore not be supporting these amendments.

I turn to amendments 162 to 167, in the name of Jenni Minto. I have listened carefully to the arguments that have been put forward and, for all the reasons that Ms Minto outlined, I will support those amendments to section 5. We have seen plenty of evidence that other effective methods of mink control are available, and the provision on mink is in line with my desire to see the provision for dogs underground being drawn as narrowly as possible.

Amendments 212, 214, 216, 221, 222 and 225, in the name of Rachael Hamilton, would allow the use of dogs below ground to search for any species of wild animal by removing the reference to fox and mink in the bill and replacing it with a reference to any animal. As I said in response to Edward Mountain’s amendments, I have not seen any evidence to justify the use of dogs underground to control other species of mammals. In fact, everything that I have heard about the welfare concerns around sending dogs undergrounds leads me to the conclusion that, as I said, we must draw these provisions as narrowly as we can.

Amendments 213 and 215, in the name of Rachael Hamilton, seek to amend the section 5 exception to include

“from an enclosed space within rocks or other secure cover above ground”.

In my view, that would widen the reach of section 5 to include searching for and flushing wild mammals above ground as well as below ground.

Rachael Hamilton alluded to the wording in those amendments being taken from section 2(3) of the 2002 act, and she was right to quote Lord Bonomy’s comments on terriers. However, I ask her to note his comments that

“Consideration should be given to framing section 2(3) more narrowly by removing reference to using a dog under control to flush a fox from an enclosed space within rocks or other secure cover above ground.”

The amendments in Rachael Hamilton’s name could reverse the action that we have taken to implement Lord Bonomy’s recommendations by separating the use of a dog below ground in a different section, which could create an unnecessary and confusing overlap between the exceptions. I therefore cannot support the amendments.

Amendment 117, in the name of Colin Smyth, would require a person using section 5 to intend to kill the wild mammal “immediately by shooting”. Although the amendment may not appear to be problematic, and I have some sympathy with what Colin Smyth is seeking to achieve, it would create two anomalies, which I will share with the committee. The first is that a requirement to shoot “immediately” would be at odds with the consistent use of the wording

“as soon as reasonably possible”

throughout the bill. One of the main themes of Lord Bonomy’s review was the need for consistent language.

The second anomaly is that, in practice, there is always the chance that, when a person is searching for a wild mammal underground, that mammal may not actually emerge. Although the person may have intended to shoot it, therefore, their intention cannot determine what happens in practice, so there could be a difference there. I understand Colin Smyth’s concern, and I reassure him that section 5(3)(d) states that,

“if the fox ... is found or emerges from below ground, it”

must be

“shot dead, or killed by a bird of prey, as soon as reasonably possible”.

I think that that achieves a lot of what his concerns are pointing to. That is before we consider the practical need to ensure that any dogs—or indeed people, as Edward Mountain suggested—are out of the line of fire before “immediately ... shooting”. For those reasons, I cannot support the amendment.

I move swiftly on to amendments 26 and 217, in the name of Rachael Hamilton. As a result of welfare concerns, section 5, which facilitates limited control underground, has deliberately been drawn as narrowly as possible. I have heard evidence that it is sometimes necessary to deploy dogs underground in the course of controlling foxes to protect livestock, but I have heard no evidence whatsoever on allowing the use of dogs underground for environmental benefit. The current legislation does not allow dogs to be used underground, for all the purposes that are set out in section 7, which is on environmental benefit. Those amendments would therefore go further than the law as it stands, and for that reason I cannot support them.

Amendments 218 and 27, in the name of Rachael Hamilton, seek to amend section 5 to allow the use of more than one dog underground. No strong evidence was brought forward at stage 1 to support amending the bill to enable the use of more than one dog underground. Restricting the number of dogs that can be used to one is in line with the recommendation that was made by Lord Bonomy. It also reflects best practice, as set out in the code of practice by the National Working Terrier Federation, which already suggests one dog. Moreover, animal welfare groups have said that, if dogs are to continue to be used underground, a one-dog limit should apply. In addition, I draw the committee’s attention to the fact that the Hunting Act 2004, which governs the use of dogs underground in England and Wales, limits the number of dogs that can be used underground to one, albeit for different purposes. For those reasons, I do not support these amendments.

Amendment 219, also in the name of Rachael Hamilton, seeks to remove the section 5 requirement that a dog that is used underground must be “under control”. Ensuring that dogs that are being used to control wild mammals are kept under control is a key tenet of the bill, and it is embedded in all the exceptions that set out when and how dogs can be used. I can see no justification for waiving that fundamental requirement in respect of dogs that are being used underground. In fact, given everything that we have discussed with regard to welfare considerations, it is vital for both the wild mammal and the dog that the dog can be controlled when it is underground. For those reasons, I cannot support the amendment.

Amendment 28, in the name of Rachael Hamilton, seeks to include the wording

“or dogs as the case may be”

after the word “dog” in section 5(3)(b). I do not support the use of more than one dog underground. However, even if I did, the amendment would still be unnecessary given the application to the bill of section 22(a) of the Interpretation and Legislative Reform (Scotland) Act 2010, which provides that

“words in the singular include the plural”,

unless the context requires otherwise.

Amendment 220, in the name of Rachael Hamilton, seeks to add to section 5 the condition that the

“wild mammal ... being searched for”

must be

“flushed as soon as reasonably possible after it is”

found. I understand that the wording is imported from the 2002 act; I am always cautious about that. In drafting the bill, I intentionally did not include that in the exception because of the unpredictability of knowing what will happen when a dog is used underground, which is inherent in the practice.

During stakeholder engagement, those who work with terriers underground cited examples of where the terrier and fox would stand off, which would result in the fox not being flushed at all and would end up with both animals being dug out. I am sure that this is not what Rachael Hamilton intended, but amendment 220 would make such a situation, which is obviously important for the welfare of the animals, illegal by allowing a fox only to be flushed if it is found, not dug out or left underground without harm. Therefore, I cannot support it.

Amendment 224, also in Rachael Hamilton’s name, amends section 5(3) to add a list of further conditions that must be met when using dogs underground.

The welfare of a dog that is being used underground is clearly important. It is already covered by the Animal Health and Welfare (Scotland) Act 2006, which came into force after the 2002 act, which we are amending. Section 19 of the 2006 act provides that

“A person who is responsible for an animal commits an offence if—

(a) the person causes the animal unnecessary suffering by an act or omission, and

(b) the person knew, or ought reasonably to have known, that the act or omission would have caused the suffering or be likely to do so.”

Despite that, I am open to it perhaps being helpful to clearly set out in the bill the specific conditions that we think should apply in this specialised and difficult area. For that reason, I am happy to accept the principle of amendment 224 but would like to consider the precise wording further and come back, if the member agrees, with an amendment that achieves a similar effect at stage 3.

Yes—that is similar to the use of dogs in the course of hunting throughout the countryside. Again, there is a point about consistency.

For the reasons that I have set out, I do not support amendments 133, 135, 137, 139 and 143.

I turn to Colin Smyth’s amendments 123 and 146, which would remove the ability of a person to use dogs to search for or flush wild mammals for falconry. As I set out in speaking to amendments in the name of Ariane Burgess, the bill is about regulating the use of dogs when they are used in the course of hunting wild mammals. Falconry is a lawful form of hunting and, as long as dogs are used in accordance with the requirements of the bill, it is not justifiable to single it out and apply additional restrictions, just as it is not appropriate to single out rough shooting and apply lesser restrictions.

We must guard against anything that would ban an otherwise lawful activity by the back door, not least because there has been no consultation on any proposal to effectively ban falconers from hunting, and that does not fall within what is intended by the bill.

I move to amendment 227, in the name of Rachael Hamilton. I do not support this amendment, because it is not necessary and because it risks creating uncertainty and inconsistencies throughout the bill. We have worked very hard to avoid that, and we have been praised by Lord Bonomy for so doing. However, I seek to reassure Rachael Hamilton that what she is attempting to achieve is already provided for by the bill. In my view, therefore, the amendment is not necessary and would create inconsistencies in expression.

In addition, as I mentioned previously, creating special arrangements for a single recreational pursuit would open up the bill to abuse by those who are looking for loopholes to get around the law—

To pick up on the last point, I think that we discussed last week that, for the purposes of the bill, a pack is defined: it is more than two dogs. As I was happy to put on the record last week, I understand that dogs that are generally used in rough shooting, such as gun dogs, are well trained and do not chase or form packs.

However, as I said last week, that gives me confidence that rough shoots will be able to comply with what is a minor adjustment under the bill in order to provide consistency of application to all uses of dogs in the countryside in the course of hunting in Scotland. I hope that that clarifies the member’s point and puts on the record what she was hoping to draw out.

Amendments 100 to 102, in the name of Edward Mountain, seek to amend the section 6 definitions of deer stalking and remove the word “sport”, for the reasons that have been explained.

Edward Mountain mentioned the different purposes of deer stalking, but I reassure him that, although section 6 covers recreational pursuits, we absolutely acknowledge that there are other reasons for pursuing deer stalking. For example, deer stalking for tree protection or other environmental reasons would be covered under section 3 or section 7. I understand that, for some, the motivation for taking part in those pursuits may not always be sport; we discussed last week that the provision of food may be involved, and that deer stalking could be undertaken for a combination of reasons. However, the use of the term “sport” is helpful in this context—

Yes—I have no problem with that at all. I would be happy to discuss that and to look back at some of the old legislation with Edward Mountain. For today’s purposes, however, I cannot support these amendments as they stand, as I do not think that they are required or, indeed, helpful.

Finally, I turn to amendment 228, in the name of Rachael Hamilton. I agree that killing, rather than simply attacking, should be the intention of the person who is using the bird of prey. I have listened to Rachael Hamilton’s arguments and I am happy to support the amendment.

I would not accept that. I absolutely accept the premise of the point, and the circumstances that Edward Mountain has pointed to are exactly those that the provision seeks to address—such as those examples that Forestry and Land Scotland has shared with us—but I do not accept that it would be necessary or acceptable to allow more than two dogs to undertake that activity.