Rural Affairs and Islands Committee

Meeting date: Wednesday, May 31, 2023

Official Report 824KB pdf

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Wildlife Management and Muirburn (Scotland) Bill: Stage 1

Our next item of business is an evidence session with the bill team for the Wildlife Management and Muirburn (Scotland) Bill. We have scheduled approximately 90 minutes for the session. I welcome Hugh Dignon, head of the wildlife management unit; Leia Fitzgerald, wildlife legislation team leader; Sam Turner, wildlife management team leader; and Norman Munro, solicitor.

I will kick off the questioning. How did the Scottish Government come to the conclusion that a ban on glue traps was more appropriate than licensing, given that concerns were expressed in the consultation that such a ban might cause problems in settings such as hospitals, schools and hospitality?

The primary driver for the Government’s position on a ban on glue traps was the report by the Scottish Animal Welfare Commission, which considered in some detail whether, on balance, some sort of limited use of glue traps was justified or whether a total ban was the right way to go. We were heavily persuaded by that report. We also recognised that there would be considerable difficulties in operating a licensing scheme when there was no recognised body for the people who would be using glue traps in such circumstances.

Leia Fitzgerald might want to add to what I have said.

We considered going down the licensing scheme route. As Hugh Dignon said, one of the primary drivers for a ban was animal welfare. We were also satisfied that there were plenty of satisfactory alternatives for rodent control.

In addition, we looked at what was going on in the rest of the UK. We looked closely at the evidence that was provided during the debate in the Welsh Parliament, and we considered the international position. For example, we looked at what was happening in the Republic of Ireland, where glue traps are banned.

We also spoke to professional pest controllers. We contacted all the local authority pest controllers in Scotland, and the majority who responded indicated that they did not use glue traps.

Taking all that evidence together, we were content that the option of a complete ban was the best way to go.

I very much welcome the proposed outright ban on the use of glue traps, because they are the cruellest form of pest control. Why was a similar attitude not taken to the use of snares? I might have got this wrong, but I think that the Scottish Animal Welfare Commission recommended a ban on the use of snares.

The first thing to say is that the issue of snaring is still under consideration. If we decide to introduce a ban on snaring, we will draft such provisions in time for a Government amendment to be lodged at stage 2. That is still under consideration.

I did not hear the answer because somebody coughed. Am I correct in saying that, although a ban on snaring does not appear in the bill as laid, serious consideration is being given to lodging an amendment to introduce such a ban at stage 2?

Yes, that is correct.

That alerts the committee to the fact that it might require to take evidence on that matter at stage 2, because that would represent a substantive addition to the bill.

Yes. We will certainly ensure that any provision that sets out to ban snaring will be with the public and with stakeholders in good time for evidence to be taken before stage 2. That is a certainty.

Thank you for that clarification.

One of the responses was from the owner of a pest control business, who said that they had concerns about banning the use of glue traps in food-designated areas. Was that considered?

Yes. One of the key arguments for retaining the use of glue traps is so that they can be used in food production areas and in some health settings. However, as my colleague Leia Fitzgerald said, there are alternative means of rodent control that are used by other pest controllers and other local authorities. We envisage that there will be a transition period to allow people to develop alternative methods and to gain expertise in the use of other techniques.

If you ban the use of glue traps, will you ban the sale of them?

Leia Fitzgerald will speak about that.

A ban on the use of glue traps is included in the bill, but we believe that a ban on their sale would engage the United Kingdom Internal Market Act 2020. We have had discussions with the UK Government about that, and we will continue to discuss the issue with it. We hope to be in a position, ahead of stage 2 or stage 3, to lodge an amendment to ban the sale of glue traps, but we must consider the matter in conjunction with the UK Government, given the interplay with the 2020 act.

I have a question on something that Christine Grahame touched on. What information are you currently lacking that is preventing you from including a ban on snares in the bill? If you wait until stage 2 before including such proposals, that will ultimately reduce the committee’s ability to scrutinise them.

I think that a ministerial announcement on the direction that we want to take on the use of snares is fairly imminent. We have gathered quite a lot of evidence not only from the likes of the Scottish Animal Welfare Commission—as Christine Grahame mentioned—but from snaring practitioners, with whom we have been in touch through the land management groups.

The evidence that is missing and that we are still gathering is on a new development in snaring techniques that the land management groups have talked to us about, which they call humane cable restraints. We thought that it was important that we take that into account. We also decided that it would be helpful to seek from them any empirical evidence that they might have on the impact on welfare of the new humane cable restraints. That is the last piece of the jigsaw. We anticipate getting all that evidence as a package to put before ministers very shortly, and there will then be some sort of ministerial decision.

In that case, why did you not delay the introduction of the bill in order for the provisions to be included and go through the full process of scrutiny? We are talking about only a few weeks.

We had hoped to get the position on snaring ready in time for the introduction of the bill, which was planned with the parliamentary authorities and our parliamentary managers, in order to include snaring provisions. However, as I said, there were some later developments, and we thought that we should wait for those significant new pieces of evidence before drafting the relevant provisions. We wanted to ensure that we were dealing with the full picture.

Can I follow that up?

Okay.

It is just on a point of process, rather than a substantive issue. I take it that the bill is already drafted and ready to go.

Yes, it has been drafted and has already been introduced.

Is it possible for the proposed amendment that is intended to be lodged at stage 2 to be brought before the committee at stage 1 in order for us to take evidence on it during our stage 1 consideration, rather than us having to wait to take evidence at stage 2?

Yes, that is our intention.

That would be helpful to us.

When you say “Yes”, given that we have recess in four weeks’ time, when do you think that that is likely to happen? We have to plan our committee sessions on the bill. When do you expect that to be available?

I would hope that we would be able to provide that proposal before recess, but I am not 100 per cent certain on that. Does Sam Turner have any further information on the timing of that?

Potentially, we could do that. I am not able to commit to that and say that it will definitely be done by then, but that is what we are hoping.

Thank you.

Mr Dignon, can you clarify whether you have consulted others, such as vets, on humane cable restraints?

That is the part of the picture that we are trying to complete. We have asked the land management groups that have said to us that the restraints are a significant new development in snaring for empirical evidence that they improve animal welfare outcomes. That evidence will primarily come from veterinarians.

Do you already have that evidence?

We have some of it. The land management groups have said that there might be more to come.

Are they supportive of that development?

The groups that have written to us are supportive.

You have touched on some of this, but if alternatives to glue traps are available—as has been indicated to you—why is the Government anticipating a transition period?

Different members of the public and pest controllers will use different methods. The transition is designed to give people time to replace glue traps with other methods and to give shops that currently sell glue traps time to wind down their stock. It is also to give us time to publicise the changes that are coming and make people aware of them.

What evidence is there to justify the need for additional regulation of grouse moors? Has an on-going link been established between grouse moor management and raptor persecution, and why is licensing preferred to the alternatives? What alternatives did you consider?

The bill and the introduction of a licensing regime are the latest and, we hope, last step in a long series of Government initiatives to tackle raptor persecution, which has been associated with driven grouse moors. There have been a number of other initiatives over the years—the introduction of vicarious liability, a pesticide disposal scheme and restrictions on general licences. You will be broadly familiar with the history, but there was a report into golden eagle tags that had disappeared or stopped sending signals in suspicious circumstances. That report showed that perhaps up to a third of tagged golden eagles were disappearing in circumstances for which the most likely explanation was wildlife crime, and most of those were on or around grouse moors.

There is a long history of wildlife crime that is associated with some grouse moor businesses—it was by no means all such businesses, but there was certainly a clear association. As I said, there have been initiatives in the past, and throughout that period, ministers have said that we will continue to take steps until the illegal killing of birds of prey on grouse moors is brought to a halt.

We believe that the licensing scheme, which was recommended by Professor Werritty, is perhaps the most effective way of delivering a meaningful sanction and an effective deterrent to wildlife crime on grouse moors. That is what has brought us to this stage; that is why it is in the bill. I am not sure whether that answers your question, Mr Fairlie.

What alternatives were considered? You have introduced vicarious liability and taken measures to do away with poisons, as you said. Was there any option other than licensing at this stage? Why did vicarious liability not work?

I will deal with your last question first. I do not think that we would accept that vicarious liability did not work. In fact, the other day, we had a presentation in my office from someone from Police Scotland who said that, in his opinion, it had worked in that it had had a serious deterrent effect. However, it clearly did not do the whole job, because raptor persecution continues. The problem with vicarious liability is that it depends on there being a criminal conviction. One of the long-running difficulties in this area has been the difficulty of securing a criminal conviction because there are very few, if any, witnesses, there is no victim who is able to speak up and these things happen in remote places. That was a problem with vicarious liability.

Was the issue the burden of proof?

Yes, it was the criminal standard of burden of proof, which is that something has to be beyond reasonable doubt. It was hard to establish that, and it was hard for law enforcement to establish that a particular individual had carried out a criminal act and to prove that beyond reasonable doubt, because of the difficulties of such acts having been carried out in remote locations and there being few witnesses in such circumstances, as I said.

Since at least 2007, there has been a series of escalating measures as the Government has sought to tackle the issue. We are now in a position where we think that licensing is justified. We recognise that it is quite a significant measure and that there will be a serious and significant impact on a business that loses its licence. The next step beyond that would be an outright ban, and we are certainly not contemplating that at present. That is the only step that we would see as realistic and practicable after a licensing scheme.

We are hopeful that the licensing scheme will provide an effective deterrent and meaningful sanction. If it does not, we do not know where we would go, beyond having the ban.

11:15  

You mentioned the Werritty report, which says that licensing should be introduced only if raptor populations have not improved. What evidence do you have to suggest that raptor persecution and grouse moors are connected? On what objective evidence are you basing your assertions on the rates of raptor persecution? The golden eagle project is eight years old, so it is now out of date.

So, in terms of the evidence—

I mean the evidence that connects grouse moors to raptor persecution.

As I said earlier, that is a long-term pattern. We can consider that convictions for raptor crime have quite often been associated with gamekeepers on grouse moors. However, there have not been that many—160 crimes were recorded during the 10-year period between 2011 and 2021. For a large number of the crimes that involved raptor persecution, the carcases were found on or around grouse moors.

Was there evidence to suggest the connection? What did you use—DNA or other things? How did you connect the crimes to the grouse moors or establish that the persecution was committed by somebody who was managing a grouse moor?

As I have said, it is a mixture. First, when there were convictions, the people who were convicted were often associated with the grouse moor business. Secondly, carcases were usually found on or around grouse moor businesses. Thirdly, there is a clear motivation around the control of raptors to protect grouse stocks and promote the grouse moor business. Hard and clear evidential links and pretty strong circumstantial links exist.

Can you provide the committee with that specific evidence so that we can take a look at it? I cannot see it in the information that we have. The offences overall in the wildlife crime reports are not split between those that connect to grouse moors and others. The numbers of raptor persecution offences are coming down, so clearly whatever is happening out there is working.

Professor Werritty said to the Government in his recommendations that, if the raptor population numbers did not improve, a licensing scheme would be appropriate.

We can certainly provide you with more evidence that associates raptor persecution with grouse moors. We can itemise in writing the sort of thing that I have been talking about.

That would help, because there appears to be a lack of firm evidence on the positive or negative effect of the legislation that we have had in the past few years since the last substantive report was done in, I think, 2012. We do not know whether things are improving or getting worse as a result of the legislation that has been put in place since then, such as the increased penalties and so on. In relation to the Werritty recommendations, it is not clear that things are getting worse and that we should have a licensing scheme.

We can provide you with the evidence that Ms Hamilton has asked for around why we believe that raptor persecution has in the past been strongly associated with driven grouse moors.

To know whether it has increased or decreased since 2012 would be helpful, too.

I am not sure of the significance of 2012.

I beg your pardon—it is since 2017.

Since the publication of the Werritty report, the raptor persecution situation has undoubtedly improved. The Government welcomes the reduction in the incidence of crime; however, it has not gone away. Since the Werritty report was published, Police Scotland has still recorded raptor crime offences, and there have been 10 in the past couple of years. We can certainly provide the statistical proven link—in other words, the link between criminal convictions and grouse moor management.

Just for clarification, you said that a third of the golden eagle population was disappearing. Is that the population around grouse moors, or are you talking about the Scottish golden eagle population as a whole?

It is a third of the tagged golden eagle population. The assumption was that the people who were doing this were not discriminating in favour of shooting or killing only tagged birds and therefore they would tend not to take action against a tagged bird if they were able to. If we are talking about a third of tagged birds, we can extrapolate from that that it is a third of all birds—that is, golden eagles across the whole of Scotland. Where they disappeared or where they were found, though, the evidence overwhelmingly pointed to an association with driven grouse moors.

Do you have a map that shows those disappearances?

Yes.

Could you share it with the committee?

I do not have it in front of me, but we can certainly provide you with it.

Thank you.

I am trying to understand the issue of licences, which are terribly important in all of this. I take it that the licence will go with an area of land.

Yes.

In that case, to whom will the licence be granted? After all, many large estates in Scotland are owned by corporate organisations that are registered abroad and are therefore not subject to Scottish jurisdiction. I wonder whether Mr Munro, your solicitor, will explain this to me. How will you ensure that, if a licence is breached, there is somebody—a named person—who can be taken to court and that things do not happen vicariously?

The applicant for a licence may be the owner of the land or somebody acting on their behalf—say, a groundskeeper. If an offence is committed in connection with the management of the land, the bill contains provision for a power allowing the relevant authority to suspend or revoke the licence if it is satisfied that a relevant offence has been committed by someone connected with the ownership of the land. It is not the case that a licence will be revoked if a third party who is unconnected with the land commits a relevant offence—it would have to be somebody who is connected with the ownership or management of the land in question.

Just to complicate things a bit more, I know that land can be owned by several landowners across several estates. If there are multiple owners of the land, none of whom is resident in Scotland, to whom is the licence granted? The issue that I am trying to get at is how we ensure that people are liable, so that when someone asks, “Who is liable?”, we can say, “I know—it’s this person.”

The person to whom the licence is granted will be set out in the licence itself. That information will be provided to the licensing authority in the application, and the licence itself will set out the person to whom it has been granted. As a result, there will be a direct trail and no ambiguity of the kind that you have described.

So, will there be a named person on the licence? I am just trying to understand this.

Clearly, the key sanction is the suspension of the licence, which will mean that no grouse shooting can take place. Even if we are talking about some shadowy company in the Cayman Islands or something, it will not matter, in a way, because the grouse shooting business will have to stop. A withdrawal or revocation of a licence will mean no more grouse shooting on that land, and anyone who shoots grouse there will be committing an offence.

But how do you revoke a licence? Do you not need a named party? After all, the suspension could be temporary.

Well, to whoever has been granted the licence, it will be revoked, so it does not really matter—

—where they live.

Indeed.

Or whether it is a company in the Bahamas.

The licence holder for the piece of land will need to be associated with the management or ownership of the land but, even if it is hard to get hold of them, you will still be able to revoke the licence.

Therefore, it does not matter if you cannot serve a notice on them or anything like that.

I ask Norman to say whether that would be an issue.

No, it would not be an issue, as long as there was the ability to provide the reasons for the revocation to the person in question. An address will be provided as part of the application, so there will be a way to communicate to the person to whom the licence was granted that the revocation has taken place. Therefore, we would not go down the formal route of serving a notice, but information about the revocation would still need to be provided.

Therefore, to put it in simple language, I should not have any concerns about estates that have two or three companies operating on them that are registered abroad. You will still be able to revoke the licence. There will not be problems about intimation or anything such as that. You could put it in a newspaper or the internet, but you will be able to revoke the licence—you will not need to actually serve someone with a notice.

If they have been able to apply for a licence and provide the necessary information to do that, it will be possible to revoke it.

That is fine. I just wanted to clarify that, because it is an issue that might come up.

Yes, that is right.

I have a point of clarification about something that Norman Munro said. Is it the case that there is no need for the regulator to be satisfied that a crime has been committed in order to revoke a licence—that there only needs to be a police investigation for a licence to be revoked? That is what the bill suggests. Is that correct, or does the regulator need to be satisfied that a crime has been committed?

There are varying degrees with regard to revocation or suspension taking place. Revocation of a licence may take place only when the licensing authority is satisfied that a relevant offence has been committed. In relation to an investigation, it will be possible to suspend a licence in those circumstances only when the licensing authority deems it appropriate while an investigation is on-going. It is a power, so it would be for the licensing authority to determine—based on the circumstances and the degree of the offence—whether it would be appropriate to suspend a licence pending the investigation, but a revocation of a licence is not possible while an investigation is on-going.

Therefore, a straightforward police investigation—if someone phones up to say that there is a dead golden eagle on a certain estate and the police investigate—would be grounds for the regulator to suspend a licence.

It would be open to the regulator to determine whether it would be appropriate in those circumstances to suspend a licence.

That is a concern, if there are potentially people who wish to cause disruption to licensing at particular times of the year.

I have a brief supplementary question. Is there an appellant procedure, if a licence is suspended?

Yes.

What is the process?

It is an application to the sheriff.

Therefore, in such circumstances, there is a method, which is to apply to the sheriff to appeal the suspension.

Yes, that is correct.

My concern is that, if there was a vexatious claim on 12 August, when an estate had bookings, and if the estate then had to go through a process of appealing to the sheriff, that could, in effect, bring that estate’s income to an end for a year.

It is important to be clear that, as Norman Munro said, it is a power that the licensing authority will have; it is not an automatic position. It is clear that it would be dependent on the degree of seriousness of the offence. That power is for use in the case of a particularly egregious sort of offence where it appeared that something terrible had happened and it would be unacceptable for the business to continue while a police investigation rolled on. However, in the sort of circumstances that you are talking about, I do not think that it would occur to the licensing authority to immediately suspend a licence.

Will there be something in the bill to ensure that that is the case, given that there will almost certainly be vexatious claims of raptor persecution? Do we not need safeguards in the bill to avoid that happening? The damage to an estate could be significant, as could the knock-on effect on those who work on the estate and any associated businesses.

11:30  

The licensing authority, NatureScot, is a public authority and it acts reasonably—it is obliged to act reasonably—and it will have its own internal appeal process for any immediate concerns. There is then the appeal process to the sheriff, as Norman Munro set out. We do not need something in the bill that requires the licensing authority to act reasonably in those circumstances.

The convener has asked a chunk of the questions that I was going to pursue. However, there is quite a bit in the next line of questioning, which is on the basis for licence suspension and revocation, and procedural safeguards.

I want to get on the record the fact that relevant offences are those set out in part I of the Wildlife and Countryside Act 1981, the Protection of Badgers Act 1992, part III of the Conservation (Natural Habitats, &c) Regulations 1994, section 1 of the Wild Mammals (Protection) Act 1996, and the Hunting with Dogs (Scotland) Act 2023. What is the justification for the different relevant offences that are listed in the bill in relation to potential suspension or revocation of the section 16AA licences? In particular, why are those not related to raptor persecution included, and what evidence is there linking those offences to grouse moors?

Those offences have been selected and put into the bill because they could all be connected with the management of grouse moors. That is not to say that they all have been or are regularly, but it is conceivable that some of those offences might be committed by someone to assist with the management of a grouse moor. They are generally offences relating to protected species that might predate on grouse or grouse eggs.

Why should there be a revocation of a licence provision for those acts on grouse moors? Are there not already fairly stringent penalties for perpetrators of those acts? Why should the revocation of a licence be added to that?

As I say, it is about providing an effective and meaningful sanction for the sort of people who will take that type of action around the promotion of their grouse shooting business. It is to ensure that we can react to that effectively.

Given the point that the convener made about vexatious claims and actions by people who have a distinct distrust and dislike of grouse moors, does it seem fair to add a sanction to grouse moors that does not apply to other rural businesses?

I am not quite sure how vexatious claims work in such circumstances.

If somebody dumped a dead sparrowhawk right in the middle of a grouse moor and then, quite by chance, found it and reported it, that would be a vexatious action by somebody who was deliberately targeting the grouse moor.

Yes.

We have all the other sanctions in the definitions of relevant offences in the legislation that I spoke about earlier. It goes back to the earlier point about a vexatious claim if someone’s business is suspended on 12 August and how that will have a real impact.

I am asking these questions because they might be the main areas of debate as we go forward with the bill. Is it fair to add the revocation of a licence to the sanctions that already exist? What would be the methods of ensuring that people were not targeted?

The licensing authority would have to be satisfied that an offence had been committed and that, on the balance of probability, it had been committed by someone who was connected to the management of the grouse moor. It would not be sufficient to find a mammal or bird that had been illegally killed; the licensing authority would have to be satisfied that that connection existed before it could decide to suspend a licence. It would also discuss the matter with Police Scotland.

The approach is based on the model that NatureScot currently operates for the suspension of general licences; in other words, we are taking an established model that we know works. As a result, the reasoning will be the same—NatureScot will have to look at the body of evidence and whatever else is presented by Police Scotland to see whether it can make that connection. It is not the case that there will be grounds for suspending a licence simply as a result of a crime being committed.

We had similar conversations during the passage of the Hunting with Dogs (Scotland) Bill. In that case, we established the need for a good working relationship between NatureScot and land managers to ensure that this type of thing is taken into account in procedures. The bit that concerns me slightly is not the revocation of a licence—I have no qualms about that—but the suspension of a licence. In that respect, we need to ensure that a good relationship exists between NatureScot and land managers. Are we doing anything to encourage that?

Yes. One of the recommendations of the Werritty report was that those relations be fostered, and that work is on-going. We work very closely with stakeholders, and we have the partnership for action against wildlife crime, on which land management groups are represented. That work will continue, but generally we have good relationships with land managers.

Thank you.

I am concerned that this is a double whammy. For example, if you were to shoot a golden eagle on land that was not designated as grouse moor, the penalty that you would get would be different from what you would get if you had been on a grouse moor. How do the implications of that sit with the European Court of Human Rights?

I think that this gets to the heart of the licensing scheme. If you were to shoot a golden eagle on land that was not the subject of a section 16AA licence, the only sanction that could be applied would be a criminal one, which would, as I have said, require the criminal standard of proof for conviction, with all the attendant difficulties that I outlined earlier. The issue on grouse moors is that, when such an event happens and the police are able to report to the licensing authority that there definitely has been a crime, the licensing authority is able to take a view on whether, on the balance of probabilities, the crime has been carried out by someone connected with the management of that land. It can then suspend or revoke the licence. It is therefore not a double whammy; we are talking about different processes on different pieces of land.

Is there, in practice, a difference between revocation and suspension?

Yes. A suspension could be for just a short period. For example, if NatureScot had concerns, it might think it important to suspend a licence for just a couple of months to allow the grouse moor to take action and get its house in order. A revocation is a more permanent thing. We wanted a range of sanctions. Revocation would be the most serious, but we would also have the ability to suspend a licence for a short period if that response was felt to be more proportionate than a permanent revocation.

Okay. Thank you.

Ms Fitzgerald, where in the bill does it say that there is an upper limit for the time taken for an investigation?

We cannot put an upper limit on that, because that is outwith our control.

What if it takes a year? The individual will have had their licence suspended and therefore their livelihood taken away for a year, perhaps without any evidence of a dead bird.

The licence will not be suspended if there is no evidence of criminal activity and an investigation is active. In such cases, NatureScot will keep in contact with the police to ensure that there is no suspension if there is a change in the investigation.

I just want to be clear. Is an official investigation triggered by, say, a vexatious claim even if there is no evidence of, for example, a dead bird?

There would need to be evidence that a relevant crime had been committed by someone connected with the grouse moor. If the police were investigating and found a dead badger but there was no such connection, NatureScot would not be able to suspend the licence. It would need to be assured by Police Scotland that it was a relevant offence and that it was connected with the management of grouse moors.

I will go back to some of the original stuff that we talked about. Does the Government have evidence to suggest that the cause of death in relation to raptor persecution is linked to grouse moors? Obviously, the aim is to ensure that there is robust evidence and that there is a causal link to a specific aim that you are trying to achieve, because, although there are other relevant offences in other bits of legislation, this is specific and relevant to wildlife crime that is related to grouse moor management. It is almost as though it is different for those who are operating grouse moors, compared with other regulation.

That is at the heart of why we have brought in the licensing scheme.

Have you got evidence? Can you tell me categorically that there is evidence to suggest that the cause of death is raptor persecution? If so, is that evidence peer reviewed?

I go back to what I said previously. We have evidence of convictions over a period of years. We have evidence from the Whitfield and Fielding report, and we have other circumstantial evidence over a number of years of dead birds being found on or around grouse moors. That is the evidence that we have that there has been an issue with raptor persecution on some grouse moors, so—

You are saying that the bill will improve that situation because you have evidence to suggest that that raptor persecution is linked to grouse moors.

Yes.

Well, I will be interested to see that.

In section 7—in line 35 on page 10—the bill states that the relevant authority may

“suspend a section 16AA licence if, despite the relevant authority not being satisfied as mentioned in paragraph (b)(ii)—

(i) there is an official investigation or proceedings”.

Will you set out exactly what “an official investigation or proceedings” means, because it reads as though that could be someone phoning the police and the police then investigating. What does that actually mean? That suggests that the relevant authorities need not be satisfied in order to suspend a licence.

That is set out in the bill, where it defines what an official investigation is. Section 7(11) states:

“‘official investigation’ means an investigation by the Police Service of Scotland ... for consideration of the question of prosecution, offences alleged to have been committed”.

It would be for the police to inform the licensing authority that it was investigating a crime and, as I said earlier, it would be for the licensing authority to decide whether to suspend a licence in the light of how serious it considered those offences to be. Therefore, if the police were investigating, NatureScot would not routinely immediately suspend a licence.

However, there would be circumstances in which it might appear to be entirely unacceptable for a business to carry on if particularly egregious offences had apparently been committed on its land. It is in such circumstances that a licence might be suspended, and I come back to the point that we would expect the licensing authority, as a public authority, to behave reasonably in those circumstances.

Again, it is the word of the law. Someone taking a video of someone pointing a shotgun up in the air might be enough to trigger a police investigation, and that would result in the suspension of a licence even if the relevant authority were not satisfied.

No, it could result in a suspension; it is not the case that it automatically would. It is not that it would but that it could result in a suspension.

It could. Okay.

It might not be the case that someone would call the police. They might call the Scottish Society for Prevention of Cruelty to Animals, for example. What is the interaction between the Scottish SPCA and the police in those circumstances?

The Scottish SPCA does not have the power to investigate those sorts of crimes, and people should phone the police in the first instance. I would expect the Scottish SPCA to advise people to do that or to report the matter to the police itself.

Thank you. I wanted that to be clarified.

11:45  

Convener, I think that the committee needs clarity on that, because “could” and “would” is not “yes” or “no”. The question is: does it, or does it not?

“Could” means discretion—

No, no, no—we need clarity.

But that is what it means.

It could or—

I think that there is reasonable doubt over that, and it might be something that needs to be considered in our stage 1 report. There is nothing more about “could” or “would” in the legislation. However, you have put the matter on the record.

Christine, would you like to ask your other question?

Oh—I had forgotten, with that debate about “could” and “would”. Which one is it, please? [Interruption.] What page? Oh dear—maybe you should—

We can come back to you—

What was it about? I can just ask it. [Interruption.] Oh, the code of practice. I now know what it is—thank you very much.

What is the justification for having a statutory code of practice when you already have licensing?

The code of practice is a recommendation of the Werritty review that was accepted by the Scottish Government. It will set out the best practice that people who are operating these businesses should adhere to, and it is something that the licensing authority will be able to take into account when making decisions about granting a licence.

You do not think that that is overkill. Oh—I should not have used that expression. I should have said, “You do not think that that is over the top.”

No. I think that it is important to set things out, as Werritty said. The Werritty review looked at a number of grouse moor management issues such as the use of medicated grit and recommended the drawing up of a code of practice for the use of such products. We therefore think it appropriate to set out best practice in that respect.

We already have a code of practice on muirburn, and there are also codes of practice for other aspects of wildlife management, countryside management and agriculture. This is not without precedent.

What is the status of a code of practice in court proceedings?

The primary purpose of the code of practice in this particular legislation is to enable the licensing authority to have regard to how much or otherwise an applicant has complied with it.

It is just something to have regard to. It is persuasive rather than determinative.

Yes. The code of practice will, like most codes of practice, have a range of recommendations. There will be things that you must absolutely comply with—that is, legal requirements; there will be things that you really should comply with; and there will be things that are good practice and which might or might not apply to your particular business. It will not be a question of saying, “You must do all of these things all of the time.” There will be things that you must do all the time, and there will be others that you will not have to.

If a business were continually ignoring best practice recommendations that they could comply with, the licensing authority would be entitled to say, “We think that you should be doing this. Can you explain why you’re not? It would be good environmental practice.” That is the sort of extent to which the licensing authority will have regard to the code of practice in its licensing decisions.

If someone did not comply regularly with such recommendations and did not take such advice, it could lead to a determination being made with regard to their licence.

It could.

I call Ariane Burgess.

First, I want to continue with Christine Grahame’s line of questioning, as I am interested in getting a little bit more detail as to why you chose to use the phrase “have regard to” instead of something stronger like “must comply with” in relation to the code of practice. Secondly, what kind of evidence would a licence holder need to present to show that they had had regard to the code of practice? Finally, how do you think compliance with the code of practice will be monitored?

On your first question about requiring absolute compliance, that would mean having a one-size-fits-all code. Clearly, businesses are of different sizes, are in different geographical locations and have different resources at their disposal, so we recognise that having such a code would not fit everyone.

As for the evidence that licence holders would have to supply, I think that it would be the other way round, with NatureScot saying, “It’s been brought to our attention that you are not complying in certain key respects.” We are not asking people to set out every single thing that they have done to comply with the code.

That brings us back to the point about enforcement. NatureScot is not going to be a police force—it is not going to be out investigating people’s business and so on—but it has area staff and people with expertise in particular spheres who will report concerns. Concerns will also be reported by non-governmental organisations and members of the public. It is by those means, I think, that breaches of the code of practice will come to light.

Okay. Thanks.

Will the code of practice be developed alongside the bill, as evidence comes forward, or will it not be clear what the code of practice will be until after the bill is passed?

The development of the code of practice is already under way, and I hope that a draft of some description will be available to the committee at some stage during the passage of the bill.

Thank you very much.

We will move on to the theme of rural economy impacts and property rights. Clearly, as is usual, there are two sides to that argument as we go through the process. The policy memorandum states that

“The Bill is compliant with the European Convention on Human Rights”.

How did the Scottish Government come to the conclusion, in its business and regulatory impact assessment, that there will be little or no impact on those businesses that comply with existing law? How would it seek to reassure rural estates that are raising concerns about the prospect of an additional administrative and financial burden associated with licensing?

We are very clear that the licensing process will not be bureaucratic or burdensome and will be the minimum that is required to operate the licence. We envisage a system in which people can quite easily apply for the licence, and the presumption will be that they will get the licence unless there is some reason not to grant it. They will not need to make a case for why they should get the licence.

To get the licence, people will have to say that they have or manage a piece of land on which they wish to take grouse; provide some basic information on where that land is, how they would describe it on a map, who is responsible for it and who we would contact; and maybe give some basic information about the nature of their business on that land. That would be it. I do not really go along with the idea that the licensing process will be a burdensome requirement on businesses.

To go back to the convener’s previous point, if we want the code of conduct to facilitate licensing, will it be a prerequisite to have the code in place before the licence is granted?

Yes—before the scheme is launched, the code of practice will be available.

I presume that the code is being worked up with stakeholders.

Yes, it is.

Would non-compliance with the code potentially result in an applicant being refused a licence?

Potentially, yes. Again, I do not think that this would be a routine occurrence, but, where there is persistent failure to comply for no good reason, the licensing authority would be entitled to say, “We’re not going to give you a licence for that activity.”

I have a simple question. Is the bill compliant with the European convention on human rights?

Yes, it is, as far as we are concerned. As you know, the Scottish Government is obliged by law to comply with the ECHR, and we look at those things very carefully, as do the Presiding Officer and the Parliament staff. Norman, do you want to add anything to that?

The Scottish Government has very carefully considered the ECHR implications of the bill’s provisions, and the Scottish Government’s position is that the bill is compliant with the ECHR and, consequently, is within the legislative competence of the Scottish Parliament.

I return to our discussion about the suspension of a licence without any evidence of wrongdoing. Is that compatible with the ECHR?

In relation to suspension, the provisions do not say that that would happen where there is no evidence of wrongdoing; there would need to be some evidence of wrongdoing in order for the licensing authority, whether that is NatureScot or the Scottish ministers, to be compliant with the ECHR in its conduct. Taking that into account, the authority would be able to suspend the licence, as Hugh Dignon mentioned earlier, only in certain circumstances, which would depend, for example, on the egregiousness of the offence that is on-going.

In layman’s terms, can you give examples of what you mean by “some evidence of wrongdoing” to explain how that provision is compliant with article 1 of protocol 1 of the ECHR?

In order for a licence to be suspended, there would, first of all, need to be evidence of a relevant offence having been committed.

Such as?

An example might be an animal or a wild bird being found on the land.

Secondly, the relevant authority would need to be satisfied that there was a causal connection between the offence and the licence holder to justify exercising the power to suspend a licence. It has the power to do that, but that is not mandatory. It is not the case that, if there was an investigation, suspension must occur. It would be a question of degree and for the licensing authority to determine on the basis of the circumstances of each case.

What is the difference between suspension and revocation?

Revocation may occur where the licensing authority is satisfied on the balance of probabilities that an offence has been committed. That will likely be when the investigation has concluded. There is also a power to suspend and not revoke when an investigation is on-going. The definition of “official investigation” is provided for in the bill.

As Hugh Dignon and Leia Fitzgerald mentioned, it is a question of degree in that options are open to the licensing authority in determining what action to take. The authority may modify a licence to impose additional conditions. It may also suspend a licence depending on what has occurred or, if the person who is involved in the ownership or management of the land in question has been convicted of a relevant offence, it may take the last-resort route of revoking the licence. However, that is a power that the licensing authority has at its disposal; there is no mandatory requirement on the authority to use it in those circumstances.

To be compliant with the ECHR, if there is a vexatious complaint, there must be an immediate investigation and evidence to suggest that there has been wrongdoing.

The licensing authority will be a public authority and so will be required to go about its conduct in a way that is compliant with the ECHR. Therefore, any investigation that takes place would similarly need to be compliant with the ECHR.

We could spend an awful lot of time on this area. There are issues with NatureScot deciding on the civil burden of proof that a licence should be suspended even if a court does not. There are some difficulties understanding how that will engage with the ECHR.

We will probably write for more clarification on that, because there is some dubiety in our minds about NatureScot’s ability to suspend a licence or the situation in which a police investigation would, in effect, result in the suspension of a licence. We will return to that in writing rather than explore it at the moment. I am still having difficulty in getting my head around it.

I have a question about the rationale for regulation. What evidence is there on the extent to which wildlife traps are used and the associated impacts on animal welfare and biodiversity? What traps are used?

A range of traps are used in Scotland. Specifically, the traps that are typically used in grouse moor management are spring traps to catch stoats and weasels, in particular, and Larsen traps or crow cage traps to trap wild birds.

Those traps have a legitimate purpose and can be—and most usually are—used perfectly legally and correctly. However, they can also sometimes be used to catch protected species, and they can sometimes also catch other non-target species unintentionally. That is the risk. The Werritty recommendations were really about reducing that risk such that traps would be operated by people who were trained to do that and through the fact that traps could be identified with the particular person who had set them, so that there would be that chain of accountability. That is where we are coming from with the wildlife trapping provisions.

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In relation to the spring traps and the live capture bird traps that you mentioned, what conclusion was reached that required additional regulation?

It was about the potential for those to be misused. The live capture traps have been used in the past to capture raptors. Again, there is good evidence of that; there is video evidence and convictions and so on. Spring traps have also sometimes been abused to catch raptors. For example, although the Fenn trap is no longer a lawful trap, when it was, it was used to do that. It was placed on top of a pole so that, if a raptor came down to perch on the pole, the trap would close on the raptor’s legs, and it would be caught there and die a pretty grisly death. Those were the sort of impacts that had been happening. I am not saying that they were typical, but they had been happening and there were convictions for them. It was therefore about addressing that.

More generally, it was also about seeking to improve animal welfare outcomes even when those traps are used lawfully. It was about ensuring that the highest standards apply and that people are operating to those high standards, as delivered by training courses. As I said, it is also about ensuring accountability through the fact that those traps are identified and registered with the authorities.

Picking up on that point about training, the requirement for trap operators to complete training is similar to the approach that the Government has implemented for the use of snares. Some respondents noted in their evidence that more than 3,000 individuals have undergone the training to operate snares and that only three have failed. How will the legislation ensure that the training programmes are robust and effective at ending bad practice?

We or NatureScot will approve the training course, and we will check that there is high compliance with those training courses. I guess that it is not difficult to pass those courses if one pays attention. I suppose that the key point is whether that person then continues to apply that level of skill, knowledge and practice in their daily work. That is the key issue, which is where the registration part of it comes in. It is important that we ensure that the courses are effective and are delivering the right standard of training.

As I understand it, there is a distinction between wildlife trap licences and section 16AA licences in that one has an appeal process and the other does not. Can you explain the reasons behind that distinction?

The primary reason is the level of impact of the sanction. We are very much aware that suspension or revocation of a 16AA licence would have a significant impact on a business—that is really its purpose. For that reason, we think that an appeal to the sheriff is justified. The internal processes in NatureScot are sufficient in relation to the way that most of its licensing regimes operate.

I want to go back to the issue of licensing, but I want to make sure that I am not going to step on any of my colleagues’ toes. What are your thoughts about the one-year duration of the licence? Would it not give more certainty and reduce NatureScot’s workload if it was a multiyear licence?

The one-year licence reflects the fact that the activity is seasonal and it is similar to most of the licences that NatureScot operates, which are for one year or occasionally two years. The key point is that it will not be difficult to obtain or renew the licence. It will not involve a significant process or workload for the applicant.

The fact that the licence is issued yearly will enable the licensing authority to have a clear understanding of what is happening across the country over a period of years. It will be able to understand where this sort of activity is going on and how the businesses are operating.

Is it in the public interest to have an annual licence when there might be no evidence that things have changed? It also takes away some of the certainty that is necessary for investment in grouse moors. Is it really worth an annual review or process? I know that you say that the process will be simple, but is it really needed?

It was our judgment that that would be the appropriate level, but I guess that there are always counter-arguments for such things, and we are always open to hearing them.

How will the Government respond to concerns from land managers that tampering with legally set traps could mean that individuals are vulnerable to prosecution? Is there current evidence that that is a significant issue in relation to legally set traps?

The current position is that there is a risk that someone could be prosecuted as a result of someone else tampering with a trap. I am not aware that there has ever been a prosecution of someone in that situation. We are aware of frequent claims that there is tampering. We hear regularly from land managers that people tamper with legally-set snares and other traps, and we are also advised that there are already offences that apply to that action. They are criminal activities. I am therefore not certain how anything in the bill will alter that basic picture.

That is the point that I was going to come to. If there is evidence of somebody illegally tampering with a trap or setting a trap illegally with the aim of someone else taking the fall, is there a way of prosecuting individuals who carry out that activity?

We are advised by the Crown Office and Procurator Fiscal Service and the police that those are potential crimes.

Can the committee have clarification of what that is and how it could be acted on?

There is no doubt that it is potentially a criminal offence to tamper with a trap, but, in the same way as it is difficult to identify and prosecute people for raptor persecution, it is difficult to identify and prosecute people who are tampering with a trap.

I accept that fully. I would just like to have clarification of what the illegal activity is and how it would be prosecuted.

I think that malicious mischief was mentioned as one of the potential offences: it is a common law offence. Criminal damage is another potential offence, but it is probably better if we get evidence from the Crown or the police on that.

If you could come back to us, that would be grand.

I also need clarification of Mr Dignon’s response to Jim Fairlie that there is no evidence of trap interference, tampering or sabotage.

I did not say that.

What did you say?

I said that there is no evidence of anyone being prosecuted.

You will accept therefore that there are individuals who are concerned that traps are being interfered with and sabotaged.

Yes.

Has that been reflected in the responses to the call for evidence so far? Has the bill team picked that up?

It has been mentioned. We have frequent meetings with land managers, and gamekeepers, in particular, have expressed their concern about that over a number of years. I can perfectly well see the risk. My point was that I was not aware that anybody had been prosecuted in a circumstance where they said that their trap had been tampered with.

That speaks to the same approach that you are taking to grouse moor licensing. Should there be a bespoke offence for tampering and interference with and sabotage of traps?

As I understand it, the issue is not the lack of an offence. The issue is the difficulty in securing a prosecution and identifying—

Therefore, are you saying that there is a lack of evidence? That is exactly the same approach that the grouse moor licensing is taking—

No, I am not saying that there is a lack of evidence. I am saying that, if a trap has been tampered with, there is a difficulty in being able to identify who did that beyond reasonable doubt. That is the problem.

There is a suggestion that there could be a tougher way to deal with that than a charge of malicious mischief. Perhaps there is a need for a specific crime to be set out in the bill to send the message out that tampering with traps is absolutely unacceptable. Given the response to the call for views, it is clear that it is a significant concern to gamekeepers that traps are being tampered with, so that might be something to consider as an amendment at stage 2—the need for a specific offence rather than relying on other pieces of law. You appear to be suggesting that the law is not sufficient to prosecute those who are tampering with—

I am not saying that there is a deficiency with the offence; I am saying that there is a problem with gathering sufficient evidence to prosecute.

Maybe a change in the legislation would address that issue of the burden of proof. I just want clarity on that. Do you think that there will be any grounds to make a clear offence in the bill that would make it easier to prosecute those who tamper with traps?

We can discuss with the police and the Crown whether they feel that that would help them or whether there is a need for a specific offence. We will continue to speak with stakeholders about that.

Thank you. I am sorry—I have no intention to put words in your mouth. I just want some clarity on whether we could make an improvement in the bill.

I am interested in the key issues that the Scottish Government needs to come to a view on to make a decision about extending SSPCA powers. Is the Scottish Government working with Police Scotland to consider that?

Yes, we will announce a position on that shortly. You will be aware that Susan Davies carried out a review of that. She led a task force to look at the issues, which are pretty well understood. The SSPCA has some additional resources that it could bring to bear in tackling wildlife crime, but there are concerns that, as a charity, it might not be sufficiently neutral and that it might in some way undermine the primacy of Police Scotland as the main law enforcement agency for tackling wildlife crime. Those are the key issues.

Another issue that comes up quite often is the timeliness of gathering evidence. Often, the SSPCA will be investigating something and in a position to seize evidence but will be unable to do so under its current powers. Those are the sorts of issues that ministers are looking at, and I think that we will be able to come to a conclusion on that very soon. We would certainly get any changes that ministers wanted to make to the current position to the committee within the same sort of timescales as with the snaring provisions.

Can you give any examples of the kinds of cases with which the SSPCA has usefully assisted Police Scotland in the past?

I do not have specific cases to hand, but the SSPCA has reported cases to the Crown on numerous occasions, which have led to successful prosecutions. It goes without saying that, under its existing powers, it has carried out useful and effective investigations.

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What are the current limitations on the SSPCA investigating anything? When must it just stop? What has been considered with regard to extending those powers?

Primarily, the SSPCA’s powers are to do with animal welfare; it can investigate cases in which an animal is in distress. For example, a case in which an animal is in a trap and suffering would clearly be within its powers. However, it would not be within its powers to investigate a dead animal in another trap next to the first one, because there would be no suffering involved. It also would not be within its powers to investigate an unlawfully set trap with no animal in it at all. At present, its powers lie in cases where an animal is suffering.

It must seem a bit odd to the public that, in the example—which I have not seen—of one suffering animal and one dead animal beside each other, the SSPCA can be involved with one case but not with the other.

That is the current position.

I know that this is just under consideration, but you have mentioned a possible amendment at stage 2, whereas our briefing says that changes would be brought in by affirmative procedure. What process are we looking at? I appreciate that an instrument under the affirmative procedure means taking evidence and so on.

The current provisions in the bill will ensure that we can, if we wish, bring forward an instrument. However, if we are going to make a change and decide to do something further with SSPCA powers—that has not been decided yet but a decision is fairly imminent; ministers will take the final view on that point—we would introduce specific and explicit provisions in the bill on those powers.

That is, indeed, better done through primary legislation, in my view.

I asked earlier about amendments on snaring. Is it possible for even a draft of the SSPCA powers amendment to be put before the committee during our stage 1 contemplation, whether or not it is in its final form? That would give a steer on which anybody in the committee might take a view. Indeed, the Government might change it, or somebody on the committee might take a view to amend the proposed amendment in one way or another.

That is our intention, as it is with snaring.

I am just covering for the convener for a few minutes. I will bring in Rhoda Grant with question 13, which is on muirburn.

Why are there two different types of muirburn licence—one for peatland and one for other areas?

It is not so much that there are two different types of licence as that the muirburn licence for burning on peatland is subject to a higher degree of scrutiny and that more stringent restrictions are in place with regard to when it will be granted, relating to the depth of the peat and so on. That is because we perceive that there is a greater risk of environmental damage through burning on peatland.

People always ask us about bureaucracy and simplifying things. It seems to me that a lot of people might need a muirburn licence and a muirburn licence on peatland and so might potentially need to apply for two licences to carry out the one exercise. Could the process be simplified to make it more straightforward in practice for people to apply for licences?

A muirburn licence will apply to a piece of land. The land manager will say, “I want to burn on this piece of land,” or maybe, “I want to burn on all these pieces of land,” across an estate. The licensing authority will need to assess whether any of that land is peatland. The applicant will be asked, “Is any of this land peatland?” If it is, specific requirements will apply.

Clearly, we want to ensure a higher degree of scrutiny and control over burning on peatland, because of the greater environmental risks. I do not think that it is a matter of having two licences; instead, there will be a licence that allows burning on peatland, if that is what you want to do, or, if not, a licence that will not have those requirements attached to it.

So, if there is a mixed licence covering peatland and non-peatland areas, you will need the peatland licence.

You will certainly need to meet the requirements for burning on peatland, yes.

I am sorry if this sounds as if I am not following you, but are you saying that you would have only one licence but, within that licence, you would be allowed to burn on peatland? I am trying to get at whether you will need two different licences.

You will not need two licences for any one piece of land. If the land that you wish to burn on falls within the definition of “peatland”, your licence will be a licence for burning on peat.

What if the land is mixed?

I am not sure—

It will depend on the purpose. There are more purposes for which you are permitted to do muirburn in non-peatland areas. If, for example, you wanted to undertake muirburn to prevent wildfires, you might need to apply for only one licence, as that purpose is shared between muirburn and non-muirburn activity. It depends on the land that you are burning on and the purpose.

However, as with all our other licensing schemes, we will be looking to work with stakeholders to develop the licence. It might be that the application form can be designed in a way that can capture different purposes, for example, but we would seek to work with stakeholders and get their feedback on what the licence application should look like, the level of information that should be sought and whether, as has been suggested, it would be better to have one licence that could capture multiple purposes on different types of land or whether stakeholders would prefer to have distinct licences. As I said, we will develop that in more detail with stakeholders.

That would be useful. I am thinking about a crofter on a small croft, part of which is peatland and part of which is not, who has to get involved with all this bureaucracy, identify the area that is peatland, measure the depth of the peat and all of that. That seems really complicated to me, and it leads to concerns about whether people will apply for licences, especially for small areas of ground.

The key point is that different considerations will apply to peatland, apart from where, as Leia Fitzgerald has said, the purpose is prevention of wildfire. We are aware that there is, potentially, a significantly higher environmental risk from burning on peat, so there will need to be different considerations in that respect. Whether all that can be combined in a single licence or whether there will need to be one licence for the peat bit and another for the non-peat bit will be, as Leia has said, a matter to work out with stakeholders and the licensing authority.

So, will that come in secondary legislation under the affirmative procedure?

I am not sure whether it will be an affirmative instrument—I do not think so.

NatureScot will start to develop the licensing scheme now but, as with the hunting with dogs legislation, once we have the final shape of the legislation, NatureScot will sit down with stakeholders to begin the process of designing the application forms and guidance that will go alongside them. It will start those discussions now, but the final shape of the licence will obviously have to be determined after the legislation is enacted, as it will be determined by what is in the legislation. However, that is part of NatureScot’s in-built process. In developing a new licensing scheme, it will sit down with stakeholders and involve them in the design process.

But will all of that come back to the Parliament in the form of secondary legislation?

No, because all the requirements in the licensing scheme will be set out, as they are at the moment, in the bill. The detail—what the boxes will be, what information will be asked for and so on—will be taken forward after that, so there will be no need for legislation. As with other licensing schemes, that will be done after the event in conjunction with other stakeholders.

As other members have said, licences can be granted for different purposes, according to whether the location is peatland or non-peatland. I noticed that one of the reasons that can be offered for burning on non-peatland is to manage the environment, but am I right in saying that that is not one of the reasons for applying to burn on peatland where you can offer to enhance the environment but not to manage it? I might be reading that wrong. Could you explain the point about the reasons that people can offer?

Could you also say a bit about what outcome you are trying to prevent by people burning on peatland? There have been examples in England of wildfires where it has been alleged that the peat has been burned on a hillside, although it might be difficult to point to examples of that in Scotland—I am not sure. The other half of my question is therefore about what you are trying to prevent by people burning on peatland.

The purposes of a licence under section 10(2)(b) are a subset of the purposes under section 10(2)(a), which clearly has a wider range of purposes. For example, restoring the natural environment, which is available as a purpose when the licence applies to peatland, is a subset of the purposes in section 10(2)(a)(iii), which has restoring as part of it, but conserving, enhancing and managing do not apply to peatland. Section 10(2)(b) is a narrower set.

Basically, when it is peatland, we have envisaged that a landowner might take the view that muirburn is the right way to go in order to restore or repair the land, if it is agreed with NatureScot. That is what that particular provision is about, but burning of peatland is not permitted for the wider range of purposes that are set out in section 10(2)(a).

The other half of my question is, why the distinction?

The first thing to say is that this is clearly an area in which there is a lot of contested science and we are not settling on a particular view of whether burning on peatland is necessarily damaging. We are saying that there is a risk of serious carbon emission through burning that damages the peat; there is a risk of peat degrading and emitting; and there is also a risk that the peat will catch fire, which would again cause catastrophic carbon emissions and could be a serious long-term issue to deal with. Those are the sort of risks that we are seeking to mitigate but, again, I would say that it is not settled science. We appreciate that, and for that reason the provisions in the section on muirburn are subject to order-making powers that will allow us to adjust the purposes for which muirburn might be carried out, and to adjust the definition of what is peatland and what is not.

We will move on to Ariane Burgess.

Some stakeholders have raised concerns that the purpose of using muirburn to manage wildfire risk on peatland will become a loophole. How will the need for muirburn to manage wildfire risk on peatlands be assessed?

The first thing to say is that wildfire is clearly a serious risk. We are seeing that now with fires in the north of Scotland, and we envisage that it will only get more difficult with on-going climate change. We are therefore absolutely certain that it needs to be in the bill.

Whether or not it will form a loophole will be for the licensing authority to determine. The licensing authority will try to follow the latest science and it will need to be au fait with what is actually happening on the ground. It will also need to take advice from the Scottish Fire and Rescue Service. The Scottish Government will clearly be influenced by its advice on that.

At the end of the day, it will be a matter for the licensing authority to decide where wildfire risk is best managed by muirburn and the extent of the muirburn that is necessary to manage that wildfire risk, if that is put forward as the primary purpose for burning.

Sam Turner, who knows more about that, may want to add something.

12:30  

The key point is what Hugh Dignon said about the work with the Scottish Fire and Rescue Service. I know that NatureScot will also be working with stakeholders on the code of practice, alongside the guidance. That will be a key part of it.

To follow up, the muirburn season outlined in the bill runs until 15 April, which overlaps with the start of the breeding season for many moorland bird species, such as curlew, whose nests could be threatened by muirburn. Has the Government given consideration to bringing forward the end date of the muirburn season—for example, to 15 March—to protect threatened species?

Again, I think that that is something that can be amended in the future. Certainly, we would not want to see curlew nesting being in any way threatened by muirburn. If there is evidence that that would, indeed, be the case, we would be happy to look at that, as I am sure would NatureScot. Again, Sam might have further thoughts on that.

There is also an order-making power such that that could be amended without needing primary legislation.

My question is about the muirburn code. Some stakeholders have questioned why the bill requires licensees to “have regard to” the code rather than, for example, to “comply” with the code. Why have you chosen that wording? How will it be determined that a person has had regard to the muirburn code?

That comes back to the same sort of considerations that were discussed when we were talking about the grouse moor management code. The code will contain a mixture of requirements. Some will be compulsory in the sense that it is the law that a person must do X or Y. Some will be highly recommended, in relation to record keeping and so on. Some may apply only in certain circumstances and in certain parts of the country, depending on the underlying topography, the size of the burns or any other considerations.

NatureScot has the power to put conditions on the licence. It could, for example, make it a condition that the person must comply with section 1 of the code, if that was deemed appropriate.

To go back to a question that was raised before, there were concerns about the ability to suspend muirburn licences where

“there is an official investigation or proceedings in relation to an offence under this Part”.

Could you perhaps give clarity as to what is “an official investigation” and what are “proceedings”?

My colleague is drawing my attention to the definition that is in section 13(7) of the bill.

Section 13(7) of the bill—I should have known that. There we are. Rap over the knuckles. What is the definition in section 13(7)?

To quote the bill, an “official investigation” means

“an investigation by the Police Service of Scotland or any other body that has as one of its functions reporting, for consideration of the question of prosecution, offences alleged to have been committed”.

Can it be triggered by just a complaint? That would not be “proceedings”?

No. It has to be an investigation by the police.

It has to be an official police investigation whereby people are advised that that is happening.

What about the official investigation—I am sorry, I am muddling myself now. I do not want to muddle you up. The official investigation must be by the police.

Or, to quote the bill again,

“any other body that has as one of its functions reporting”.

What are “proceedings”, then?

Proceedings are criminal proceedings.

So, they are actual live proceedings in that somebody has been served with a charge.

Yes, that is correct.

There are a variety of views among stakeholders around the figure of 40cm depth of peat and why that figure has been chosen. Could you tell us why it has been chosen, please?

Again, this is a much-debated issue in this area. At present, the figure in the code of practice is 50cm but there are people arguing that it should be 30cm while, south of the border, the figure of 40cm applies in protected areas. We were trying to balance some of the arguments and take what we thought was a precautionary approach. Indeed, I think that that has been the underlying principle in all of our work on muirburn, and the provisions that you are seeing in the bill are a recognition that this is an area of significant concern.

There are big issues at stake as far as carbon emissions are concerned, but there are also big issues at stake with regard to effective management for grazing and other agricultural purposes. We have therefore tried to balance all of that and have taken, where possible, a precautionary approach to minimise the potential risk to the environment—certainly while the scientific debate goes on about the effects of muirburn on carbon emissions, the damage to peat and so on. These are on-going debates, and we want to be able to react accordingly in the future, but, in the meantime, we think that the 40cm figure represents a practical and pragmatic approach to setting a depth for peat to which our controls will apply.

On your point about the precautionary principle, I appreciate the need to restore peatland—I do not dispute that aim—but I come back to the question that I asked before. Is the scenario that we are envisaging when we talk about carbon emissions based on carbon from vegetation, or is it posited on the idea that peatland burns on the hills?

It is both. Clearly, there will be some carbon emissions from the burning of vegetation, but the key thing is to prevent carbon emissions as a result of exposing or burning the peat.

Is there evidence of wildfires in Scotland in which peat has burned on the hill?

I believe so, yes.

Right. My other question comes back to an issue that Rhoda Grant, in particular, has already asked about. How do you measure an area that has wildly varying topography? How does somebody go about measuring a few acres of land where the depths of peat might vary wildly?

I recognise that and, indeed, know that that can be the case. It will be for NatureScot to promulgate a methodology in that respect; that is something that it is developing and will develop further. There is already a methodology being used south of the border for protected areas. Again, we will seek to make this simple and not have, say, a complicated matrix or formula that people have to follow. It will probably involve using a pole to assess depths in a number of spots over a given area and then determining the average depth.

Sam, do you want to add anything?

The methodology is used not just south of the border but in a number of other activities. The peatland code, for example, provides guidance on how to measure the depth across the land, and the methodology is also used for wind turbine developments as well as another area that has escaped my mind for the moment. However, the point is that there are already methodologies and guidance out there for conducting surveys.

Thank you.

Will land where the peat is more than 40cm deep have to be of a certain area before a licence is required? For example, will it have to be half an acre, three acres or whatever? Unless these areas are looked at in detail, is there not a risk that someone could inadvertently not apply for the right licence, because the peat in some areas of their estate is 40cm deep?

I would say that a proportionate approach would be required here, and NatureScot will take it. For example, it would not be sensible to include a piece of ground with a pocket or two of peat that is more than 40cm deep within the definition of “peatland”. As I said in my response to Mr Allan, there will be a methodology for assessing land, and the amount of land over a particular depth will clearly be one of those key considerations.

The problem is that the term “proportionate” will have a completely different meaning to someone from the RSPB, for example, and to someone who is managing a grouse moor. Does the legislation not need to set out those differences instead of just having the term “proportionate”?

It will not be for the RSPB or someone who is managing a moor to decide what is proportionate; NatureScot will decide what the proportionate approach is.

What size of area does the Government define as peatland?

Do you mean what geographical area?

What size of area?

That is what we have just been talking about.

What is the number on it? Can you quantify it?

I am not sure what you are asking me. We have a 40cm figure for thickness or depth. We have said that it is clearly not relevant if it applies across a square metre but that it is relevant if it applies across a couple of hectares. That is the proportionality element with which NatureScot will come forward when it develops the methodology for people assessing whether their licence should be for burning on peatland or for burning only on land that is not peatland.

So, to clarify, are you planning to set a minimum level?

Do you mean a minimum area?

Yes.

In the methodologies that are currently used, 100m by 100m is the sort of grid that is used in surveys for the peatland code and for forestry—that is the other area, which I forgot about earlier. The survey methodologies are already being used. It might be that, for this muirburn issue, slight differences exist in the methodology in relation to what NatureScot decides is proportionate and appropriate. At the moment, a 100m by 100m grid can be placed on the land and probes can be taken within that area to assess where the peat is and is not.

If it is helpful, we can provide more written evidence of the current methodologies and how they are applied and used to determine whether an area is peatland.

Hugh Dignon said that the depth would be considered. Is it in the public interest, however, to arbitrarily define something as either 40cm or 50cm? What is the difference?

As I have said, it is by its very nature an arbitrary limit, but it represents our best assessment of where the risks lie.

You have talked a number of times about “environmental risk”. What is the evidence on which you have arbitrarily redefined the depth of peatland that would benefit the environment? What is the scientific basis of using muirburn as a tool of last resort, as referred to on page 16 of the bill, when

“no other method of vegetation control is available”?

Would that not actually increase the risk of wildfires?

We are saying that prevention of wildfires is one of the purposes for which muirburn on peatland will be permitted.

What is your scientific basis for that?

We are restricting muirburn on peatland as a recommendation of the Climate Change Committee, which considered the issue. We have taken into account the recommendations of Werritty, the Climate Change Committee and all available science, as well as the peatland restoration work that we are doing, to come up with what we believe is a proportionate approach that allows some burning on peatland in limited circumstances but that also allows NatureScot to be able to consider applications and take all factors into account when deciding whether it is appropriate to issue a licence.

Are you concerned that individuals who apply for a licence in good faith will fall foul of the law if a correct assessment has not been made of whether the land is peatland and of how many licences are needed? It may not be practical to probe an area. There may be different depths of peat.

12:45  

As Sam Turner said, people already have to measure peatland if they want to carry out certain developments, so this is not new. We are building on a methodology. There is already a requirement for people to be able to determine whether land is peatland. That happens already.

Under “Requirement for muirburn licence”, section 9(3) says specifically:

“It is not an offence ... for a person to make muirburn on peatland if the muirburn licence relating to that land specifies that the land is not peatland.”

If that person has applied for a licence and the licensing authority has agreed that that land is not peatland but someone later comes along and says, “Well, actually, it is, because of X and Y,” no offence has been committed, because they have a licence that has allowed them to carry out burning on land that is not peatland.

We envisage that NatureScot would assess the application and the survey work that has been done by the applicant. If what the applicant says that they have done has been done, there would be no offence, as Hugh Dignon said. NatureScot would agree that the person had done the appropriate level of survey work.

I am conscious of the time.

I have one last quick question. Can I have some clarification on the Climate Change Committee’s position, which you said you use as your scientific basis?

We can send that to you.

There is some suggestion that the Climate Change Committee is reviewing its position in the light of new evidence that suggests that muirburn is carbon positive in comparison with other methods of vegetation control. We will certainly look at that further down the line.

Thank you for that clarification. There was some concern that, if people got the wrong licences for peatland or non-peatland, that could ultimately result in criminal proceedings. That clarification has been very helpful.

I wonder whether you would consider a de minimis area. You talked about using a 100m by 100m grid. That may need to be included in the bill, to make sure that some people are not needlessly caught up in the legislation. We might consider that.

I have a great deal of sympathy for you when it comes to trying to get workable legislation, because there are considerations of livestock, of grouse moors, of wildlife and of the environment. It will be difficult to get the right balance. I am not going to ask any more questions. I will think a bit more before I open my mouth.

He is wise! That is not very like a politician.

This evidence session has been hugely useful. Thank you very much for your contributions. We will now move into private session.

12:48 Meeting continued in private until 12:56.