Rural Affairs, Islands and Natural Environment Committee

Meeting date: Wednesday, November 30, 2022

Official Report 676KB pdf

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Hunting with Dogs (Scotland) Bill

Good morning, and welcome to the 32nd meeting in 2022 of the Rural Affairs, Islands and Natural Environment Committee. Before we begin, I remind members who are using electronic devices to switch them to silent.

Item 1 is an evidence session with the Minister for Environment and Land Reform on the Hunting with Dogs (Scotland) Bill. We have one hour scheduled for the session.

I welcome to the meeting Màiri McAllan, the Minister for Environment and Land Reform; Hugh Dignon, head of the wildlife and flood management unit; Leia Fitzgerald, bill team leader; and Amy Hogarth, solicitor.

I invite the minister to make an opening statement.

Thank you, convener. Good morning, everyone, and thank you for having me. I am pleased to be able to come here today to discuss the interplay between the bill and the activities that are often collectively described as rough shooting.

I begin with a comment on the inclusion of rough shooting in the bill by correcting any suggestion that rough shooting was overlooked or not considered by the Scottish Government. The bill is ultimately about regulating the use of dogs to hunt wild mammals in the countryside and it applies across the piece to those who would use dogs while hunting. In fact, it is a strength of the bill that it does not differentiate between the types of hunting that are permitted under exception. Instead, it sets out the conditions under which dogs would need to be used while hunting. Rough shooting and related types of hunting have always been part of the bill. Indeed, that is why the bill has contained an exception for game shooting since it was published.

Having said that, I will move on to discuss the issue of clarity. In giving evidence to the committee, Lord Bonomy remarked that the bill is

“a very well-crafted piece of legislation”

and that

“It makes everything much clearer and simpler”.—[Official Report, Rural Affairs, Islands and Natural Environment Committee, 15 June 2022; c 41.]

However, I recognise that some people are seeking further clarity on exactly how the bill interacts with rough shooting, and I will try to add to the already considerable and helpful evidence that the committee has taken on that to date. Of course, as ever, I am open to suggestions about how provisions could be strengthened if any member feels that that is required.

In the time that I have left, allow me to set out my position on the interplay between the bill and rough shooting, starting with what constitutes an activity under the bill, something that I know has been discussed. Under the bill, a person is undertaking an activity if they are using a dog to

“search for, stalk or flush from cover a wild mammal”

as part of an exception from the general rule against hunting with dogs. In the case of rough shooting, that exception would come under section 6, which is entitled “Exception: falconry, game shooting and deer stalking”.

The effect of section 6 is that an individual can undertake an activity using up to two dogs. The provisions do not prevent multiple people from undertaking separate activities in the same location, but they set out clearly how they must conduct themselves when undertaking that activity. As well as the two-dog limit, those conditions are: taking “reasonable steps” to

“ensure that any dog used in the activity does not join with others to form a pack of more than two”;

that

“any dog used … is under control”;

and that they have the landowner’s permission, and so on. As with other types of hunting, all that applies to ensure that dogs do not form packs and do not chase and kill wild mammals.

The committee has heard much evidence that the dog breeds that are generally used in rough shooting do not form packs, that they will not chase animals, that they are well trained and under control and, interestingly, would not return to a rough shoot if they breached any of the provisions. I have heard that clearly at the committee’s evidence sessions, and that gives me confidence that rough shoots should have no difficulty in complying with the law. Indeed, although some adjustment might be required, many already practise what will be required under the bill.

I know that a lot of this was discussed at the committee’s round-table meeting and that there was understanding among many about what the regulations in the bill mean for rough shooting in practice. However, when the committee got through what I thought was a really helpful session, it got to the nub of the issue, which is the risk of vexatious complaints. I do not want such complaints to happen. I am happy to work with shooting organisations to produce guidance on that and make it available to anyone who has an interest.

Alongside that, the committee heard helpful evidence from Police Scotland about its role in gathering evidence. I believe that Detective Sergeant Billy Telford said that for claims, vexatious or otherwise, the police would consider the breed of dog, the distance between the dogs and what reasonable steps had been taken to separate any dogs that had joined up. He said that they would discuss those things with witnesses and consult experts, and that they might seize phones.

Ultimately, I believe that the risk of ill-intentioned or vexatious claims about the conduct of rough shoots can be managed, including via the good relationship between the shooting industry and the police, as was discussed at the committee’s round table. The risk of vexatious claims does not, in my view, justify acting in a way that could undermine the bill by opening a loophole to those who would seek to exploit it. I am sure that the rough shooting community would not want to be embroiled in such a situation.

In conclusion, I have set out the consistent intent of the bill, how it applies practically to most of what I have found to be termed rough shooting, how any vexatious claims could be managed, and how the risk of such claims does not justify creating a loophole in the legislation. Having said that, we are not yet at stage 2 and I remain happy to consider whether there is anything that I can do with the bill to clarify my position. Indeed, I will consider all amendments ahead of stage 2.

I will kick off by looking at the balance between the impact of the bill on people who undertake legal shooting activities and making sure that there is clarity on enforcement against illegal activities. We all know that animal welfare is a primary reason for and objective of the bill, and we want to make sure that that objective is met. The committee is not aware of any evidence that the welfare of rabbits has ever been a consideration, but we understand that rabbits are included as part of stopping hare coursing.

Since rabbit welfare was never raised prior to the bill being introduced, nor has it been raised since its introduction or in evidence on animal welfare, why can we not include a recklessness element in the bill along with the condition on landowner’s permission, to satisfy the level of evidence that would be required for a conviction of hare coursing? We heard from DS Telford that such an element would assist greatly when it came to poaching. Why is there not an exclusion for rough shooting, which, as you have said minister, can be clearly identified, to get rid of some of the unintended consequences?

That question contains a number of aspects, so you will have to forgive me, because I will have to unpack them in turn. I will try to be as quick as possible.

You mentioned evidence for the inclusion of the welfare of rabbits. Since the introduction of the bill, I have been clear that the purpose of including rabbits is twofold. One reason is about the welfare of rabbits, and the other is about avoiding the taking of rabbits being used as a cover for hare coursing.

On the evidence on welfare, Mike Flynn said:

“A lot of people think that, in all these sorts of activities, the dog kills the animal instantly. You might get away with that with mice or rats, but it is definitely not the case with foxes or even rabbits. Not all of them are instantly killed and, in any case, they also experience the fear of being chased.”—[Official Report, Rural Affairs, Islands and Natural Environment Committee, 15 June 2022; c 15.]

That goes to the heart of the bill. A rabbit is a sentient being and, if we protect hares, we ought to treat rabbits similarly. Kirsty Jenkins of OneKind made that point at the round table last week.

The second reason why we included rabbits is to make sure that they can no longer be used as a cover for hare coursing. At the round table, when Rachael Hamilton asked DS Telford about that, he said:

“In relation to the enforcement of hare coursing offences, the addition of rabbits would aid police investigations.”

Rachael Hamilton then asked:

“Is that based on evidence?”—[Official Report, Rural Affairs, Islands and Natural Environment Committee, 23 November 2022; c 35.]

DS Telford’s response was to say yes.

That is my position. Equally, I would say that removing rabbits from the scope of the bill would not take rough shooting outwith the bill’s remit, because animals such as foxes and hares would still be shot in that way, and they would still be protected under the bill.

The second part of your question was about the suggestion of including a recklessness element and landowner’s permission. The Scottish Countryside Alliance talked about that, and it is something that I have considered and, as I said, I keep considering it. I am not going to stand in the way of making the bill better; I want it to succeed.

However, I have to make two points on that. First, the words “recklessness” and “deliberately” were the exact terms that Lord Bonomy advised us should not be contained in the new act if we are to avoid subjectivity that is not helpful. The other point that I would make is that landowner permission will be required under the bill, and it does not address the welfare element.

Given that we are looking specifically at rough shooting, if your understanding of rough shooting is correct, do you know of any circumstances in which a dog would chase and kill a rabbit?

Are you asking whether I know of any circumstances in which that has happened or whether I can envisage it happening?

You quoted Mike Flynn on dogs chasing rabbits or catching and killing them, and he implied that the killing was not instant. Are you aware of that ever happening during rough shooting? The evidence that we have heard suggests that that absolutely does not happen—that rabbits are not chased and that they absolutely are not caught and killed by dogs.

I have certainly heard a great deal of evidence about the behaviour of gun dogs, their control and how well trained they are, which gives me confidence that they will be able to comply with the requirement not to do that. On whether I can envisage a scenario in which it could happen, of course it could happen. Mike Flynn, who has decades of experience with the Scottish Society for the Prevention of Cruelty to Animals, has given evidence to the committee that it can happen.

Mike Flynn said that he thinks that it can happen; he did not say that there was any evidence that dogs are chasing, catching and killing rabbits during rough shooting. Again, we are looking specifically at rough shooting. If it is so clearly defined, why is there not an exemption? That is the point that I am driving at.

My colleague Hugh Dignon wants to come in on that, and then I will come back to you.

It is fair to say that Mike Flynn was talking specifically about the coursing of hares and rabbits. However, as the minister has pointed out, if we took rabbits out of the bill, it would create a much wider loophole that could be exploited by anybody who would like to use more than two dogs and claim that they were in pursuit of rabbits. That would be a clear loophole for people with another agenda.

There are therefore two separate elements to that. There is clearly an on-going concern about the welfare of rabbits and coursing, but there is also a need for the bill to be consistent in ensuring that rabbits are not excluded from the bill, thereby creating a loophole for those who would want one to exploit.

Do you believe that rough shooting could ever be confused with hare coursing or traditional fox hunting?

Hugh Dignon might also want to come back in on that, but I believe that the bill seeks to regulate across the piece the way in which dogs are used in the course of hunting in the countryside, and consistency on that is important.

I would like to pick up on a point that Chief Superintendent Mike Flynn made last week. He questioned why rough shooting should be given special treatment by allowing people to use more dogs than could be used for what he termed as “essential pest control”. I heard your opening statement, minister, but I just want to ask the question. I understand your need to balance the right of people to conduct legal shooting activities against animal welfare, but how would widening the exception for rough shooting, which is a form of hunting for sport, be compatible with the Government’s stated purpose of achieving the highest possible standards of animal welfare?

09:15  

I heard Mike Flynn make that point last week. It is a reasonable point among many points about why we should not create an exemption here. As Hugh Dignon said, we would risk creating a glaring loophole in the bill. Mike Flynn’s point was about consistency and the fact that it would be imbalanced and disproportionate to put greater restrictions on those who are seeking to protect their livestock from predation than on those who pursue sports. That is not me making a comment about people pursuing sports and their reason for doing so; it about me saying that I want a bill that applies consistently across the piece, and that is the only way to do it properly.

The other point to make is that we are talking about the risk of creating a loophole and I believe that, if the shooting industry and the folks who you had at your round-table meeting were taken outwith the scope of the bill, they would not want to find themselves being part of a cover for illegal hunting in future when the bill has been passed. They are law-abiding people who are undertaking an activity in the countryside, and I am asking them to make minimal adaptations in order to comply with the bill. That will mean that, in the aftermath of the bill passing, they will not find themselves besmirched by any attempts to circumvent the law.

What evidence does the Scottish Government have that rough shooting is connected to rabbit welfare issues?

I can come back to you on that. Again, I point to what DS Telford said to you during your exchange with him. You asked him if the provision was based on evidence and he said yes. I am also pointing to comments including those from Mike Flynn and from Kirsty Jenkins of OneKind, who said that rabbits are sentient beings who are capable of suffering the same panic when they are chased and the same pain when they are killed as any other animal. I believe that we should treat rabbits on similar terms to those we apply to hares. I can come back to Rachael Hamilton with a written response on that if she wishes.

Thank you.

Minister, you mentioned earlier that the fear of being chased is part of the animal welfare concern, and I understand that the aim of the bill is to balance animal welfare with wildlife control. Why is there an exception for hunting with dogs in section 6, where the primary purpose is sport rather than wildlife control? How does the inclusion of that exception serve that balance?

Rough shooting and falconry are legal activities in Scotland, and—in the course of pursuing the Government’s aim with the bill—I am not in the business of going in by the back door to try to close down activities that are otherwise legal. That is not the purpose of the bill and it would be an arbitrary stretch of the bill if we were to do that, so I need to make sure that we avoid it.

Minister, last week, Robbie Marsland made the point that the purpose of not making the exemption for rough shoots is not about what is happening now and the legal way in which shoots are conducted now, but is about who might try to tag on to that and call something a rough shoot. During that evidence session, I became more comfortable with the way in which the bill is going on that basis. It is not about what is happening now—as you have just said, the people who conduct shoots at the moment do it in an effective and legal manner. We are talking about what would happen if people started to use such an exemption after the bill was implemented. Would that also be your concern?

Yes. It is part of the concern. My job is first to regulate the way in which dogs are used in hunting in the countryside, but it is certainly a consideration that consistency with that is important to avoid future loopholes. I have tried to say that from the beginning. This work is about closing the loopholes in the Protection of Wild Mammals (Scotland) Act 2002 and making sure that more do not open up, so that we can finally end unlawful hunting in Scotland. Equally, the shooting industry clearly has an interest in not getting into a situation in which its perfectly legal activity is found to be the guise under which unlawful hunting is pursued.

I, too, thought that last week’s round table was extremely helpful, and I was satisfied by the comments about how well the hunts are run, how seriously they take the safety of everyone who is involved and, in particular, how they have trained the dogs exceptionally well. It really comes down to what you said in your opening statement about the real concern being the risk of vexatious complaints that might be made that would disrupt hunts if there needed to be investigations. I asked DS Telford if he thought that it would be helpful to warn the police that a rough shoot was going to take place, and he said that it would. What are your thoughts on that?

I observed that part of the discussion and I thought that it was an interesting one. Mercedes Villalba also raised that point.

That might be an option for getting around the risk of vexatious complaints, if the shooting industry felt that it was really problematic. However, I bear in mind what the Scottish Countryside Alliance said about how that could be bureaucratic, and I genuinely want to see the bill take a proportionate approach.

I do not believe that the bill creates or exacerbates the risk of vexatious complaints. For example, these provisions are already in place in England and Wales, and I am not aware of any rise in the number of vexatious complaints there. Of course, if that was a risk and something that the shooting industry was particularly concerned about, I would be pleased to work with it to discuss how we might avoid that.

You touched on the issue of loopholes, and I am aware of where you think the dangers might lie. How did you weigh up the concern that was expressed on animal welfare grounds about the dangers of such loopholes? You already mentioned your concern about how some groups might adapt their behaviour to get around the aims of the bill. Could you say a little bit more about that? Could you also say whether you are still satisfied that the arrangements that are set out in the bill that allow for multiple dogs, although not in a pack—and the interpretation of those provisions—are adequate to meet the animal welfare concerns of the bill?

Yes, I am. It is balanced. I have always had confidence that the two-dog limit was a reasonable way of ensuring that element of control, which then ensures that the risk of animals being chased and killed in the countryside is reduced. That is the core purpose of the two-dog limit.

The challenge then is not about the concept of the two-dog limit but about folks understanding exactly how it applies in each situation. That is what we and the committee have worked hard to make clear throughout all your evidence sessions.

I know that my colleagues have spoken with the committee and set out how the two-dog limit applies under the bill. I tend to try to put it into my own non-official layperson’s language to make sure that it is absolutely clear. You can go out on a rough shoot, and the activity that you are undertaking is the flushing, searching for and stalking. The two-dog limit applies to that activity. Say, for example, that the bill team went on a rough shoot. Leia Fitzgerald and I could go out and, if I had two dogs, she could come with me and shoot the quarry that I flushed, as long as she did not have her own dogs. If three of us went out, providing that there were only two dogs between the three of us, the ones who did not have dogs could shoot the quarry that was flushed. There are different permutations, but I think that we are getting to the point at which it is clearer.

The minister has already made the point that the evidence that we heard from the shooting community about the level of control over and training of the dogs and what happens on rough shoots also reassures us that the welfare risks are sufficiently managed by the way in which we are talking about rough shoots and the interaction with the bill.

For the record, how do you define a rough shoot?

That is a good question. My experience in introducing the bill tells me that there is no single definition and that it would be a vexed activity to try to make a definitive definition. There are many permutations of what people think constitutes a rough shoot and my team and I have worked hard to speak to as many people as possible to get the widest possible view on what constitutes a rough shoot. However, it coalesces around an activity in which a line of people moves across ground with dogs who flush the quarry that is to be shot and retrieved, often for sport and sometimes for food. I know that the committee discussed this at the round table, but there is also sometimes a wildlife management element to it.

There is no one definition, however, and I guard against seeking one.

What does your team suggest are the types of dogs that people who go rough shooting use?

Gun dogs such as Labradors, spaniels and so on.

You have also said that those dogs tend to be trained and under the control of the person who goes out with them.

Yes. I have heard a huge amount of evidence about how well trained they are, how controlled they are, how they do not form packs and how they do not chase. Alex Hogg talked about how soft mouthed they are, and I have my own Labrador who is very soft mouthed.

I am thinking of vexatious complaints. Earlier you described yourself and Leia Fitzgerald going out rough shooting—you might also invite Hugh Dignon—and said that you would only be able to take two dogs. Do you think that it is fair and proportionate to curtail rural activities, given that you said in your opening remarks that you are confident that individuals who do this activity conduct themselves in the right way by getting landowner permission and having their dogs under control?

Yes, I do. First, it is important to have consistency across the bill and the various types of hunting. Secondly, the changes that might require to be made to some activities that are regarded as rough shooting are minimal and proportionate. Many people already comply with those things that we will be asking them to comply with. The changes are minimal and proportionate and everything that I have heard gives me confidence that it will not be difficult to ensure that those well-trained dogs do what will be required under the new regulations.

A few meetings ago, we heard from Hugh Dignon that the team looked at YouTube videos and googled what rough shooting is. You said that rough shooting is part of the bill and that it had not been overlooked, yet we have had to hold three committee meetings on it because it does seem to have been overlooked. Do you know how rough shooting works? Jim Fairlie talked about quartering and dogs forming a pack. Have you had any experience of that? Have you watched it on YouTube? Do you think that there is a high likelihood that somebody would shoot quarry that another person’s dog had stalked and flushed?

I do not think that my experience is particularly relevant to my role as a minister taking the bill through Parliament. However, I represent a rural constituency, I live in the heart of the countryside and I observe these things as a matter of course through living where I do.

On the point about YouTube, the only YouTube video on the activity that I have watched is the one that the British Association for Shooting and Conservation helpfully produced and invited me to watch at the Parliament. I suspect that that is the video that my colleagues were referring to.

09:30  

However, we have undertaken substantial stakeholder engagement—as we would with any aspect of the bill. I appreciate that we are talking about rough shooting, but I was just reflecting last night that, since Lord Bonomy published his report on the 2002 act in 2016, this issue and the bill as a whole have been intensely scrutinised: we had Lord Bonomy in front of the Environment, Climate Change and Land Reform Committee in 2017; there was a public consultation in 2018; a second consultation in 2021; the committee’s own call for evidence on the bill earlier this year; five public and three private committee sessions at stage 1; a stage 1 report; and further correspondence between me and the committee. We then had the debate, the bill was agreed to at stage 1, and today is the third session that you have held specifically on rough shooting, so there has been a huge amount of stakeholder consultation and a great deal of scrutiny.

Thank you for reminding me of that. I do not know how many times rough shooting has been mentioned within all the sessions that you have described, other than the last three. However, I also want to ask you about vexatious claims around using rough shooting as a cover for hare coursing. What type of dogs do hare coursers use?

I think that that was discussed at your last session in which the committee was told that they included lurchers, whippets and other dogs of that kind.

Do you believe that Police Scotland will increase the number of prosecutions for hare coursing? Currently, there are a lot of reports of hare coursing but a lack of prosecutions. DS Telford said last week that he would provide us with evidence, but he could not provide us with evidence on the number of reports, because there is no such thing as a rural marker for hare coursing. How will the Scottish Government, in aiming to ensure high standards of animal welfare, follow the progress of the bill in relation to its aim to prosecute more people who are hare coursing?

Thank you for the question. On the first part of it, yes, I believe that there will be an improvement—I certainly hope that there will be. As we have discussed in relation to including rabbits, Police Scotland and others have told us that, when they are trying to gather evidence on hare coursing, they find that shooting rabbits is often used as a guise. Therefore, it should follow that, by bringing rabbits within the scope of the bill, that guise will no longer exist, which will ease the detection of crime on the part of Police Scotland.

In terms of the impact of the bill, as with other bits of legislation, the Scottish Government will track its success and the impact that it has. I do not know whether there is anything specific on the face of the bill in that regard, but the Government will always track the impact of what it does.

We publish an annual report on wildlife crime. It can sometimes be difficult to isolate wildlife crime from other offences that may have been committed alongside it, but I think that the police are getting better at that. There is a clearer focus on wildlife crime, so we get better data on it, but it is still not as good as we would like it to be. We will certainly be monitoring the data in relation to hare coursing. There are quite a significant number of complaints about it, and a lot of farmers object very strongly to hare coursing taking place on their land.

On that point, would you be willing to consider an amendment that would look at improved data gathering in relation to isolating specific wildlife crimes and rural crimes, with a commitment to reporting to the Scottish Parliament about those crimes?

I will consider all amendments ahead of stage 2.

One of the issues that has been raised in the past has been the definition of a pack and how a pack might be identified. Are you still content with the working definition that you have of what constitutes a pack?

Yes, I am. I am just leafing through my notes, because I had pulled out that exact part of the bill.

As we know, the bill has the two-dog limit and, in each of the exceptions, the bill speaks to

“reasonable steps”

being

“taken to ensure that any dog involved in the activity does not join with others to form a pack of more than two dogs”.

Therefore, for the purposes of the bill, a “pack” will mean more than two dogs.

In that case, would you say that nothing needs to be added to the bill to make the matter clearer in your view?

Not in my view, but, as I said, I would consider amendments ahead of stage 2.

Thank you.

When Hugh Dignon most recently gave evidence, we asked about a person using two dogs alongside another person using two dogs, and how those dogs might criss-cross. Will you confirm for the record again how you see the bill ensuring that the activity is connected with the right person? If the four dogs belonging to the two people are working together, how do you see the bill supporting or otherwise that activity?

Hugh Dignon might want to come in afterwards, but, from my perspective, we have section 1(4) of the bill, which is about the issue of “using a dog”. Section 1(4) defines who will be regarded as having used a dog if an offence is committed. Essentially, it is an anti-avoidance provision, so that, if you are involved in unlawful hunting, you cannot claim to have not committed an offence simply because you were not controlling the dogs. It means that you are treated as having used a dog even if it was not under your “control or direction”.

With regard to practical examples of what that would mean, in traditional fox hunting, it is obvious that that would include those who are following the hunt as well as those one or two individuals who are controlling the pack. In rough shooting, it means that, if you shoot someone else’s quarry, flushed with their dogs, you are regarded as having been part of that activity.

To draw out the examples, if Leia Fitzgerald and I go rough shooting, each with our own dog or two dogs, as long as we use the dogs separately to flush separate quarry and comply with the conditions in section 6, that will be fine. If Leia is using two dogs, she could not shoot a rabbit that was flushed by me, if I had one dog or two dogs. That is because we would be treated as using all four dogs for the purposes of section 1(4) of the bill.

However, Leia, Hugh and I could lawfully go out with two dogs, with Leia controlling the dogs and Hugh and I without dogs but shooting the quarry. There are different permutations, but that is how the provision works. It is there to make sure that there is no avoidance of being involved in the offence because the person was not directing the dogs.

Thank you, minister. The evidence that we received during the round-table meeting last week showed that there needs to be direct control of the dogs and, if a dog started to chase, the control that the dog handler had would result in that dog stopping. Is that right?

That is absolutely right—control is a fundamental part of the bill. I know that we are here to talk about rough shooting, but the bill as a whole is supposed to be about control being important and its being readily obvious when control had been lost. The two-dog limit allows that to be much more easily picked up.

That just adds more confusion and again makes me think that what you define as rough shooting is not what it is. You suggested that somebody with a gun and somebody with dogs would have to be associated with each other. In practice, on a rough shoot, there might be five people with guns and eight, nine or 10 people, each with two dogs, who are not associated with the shooters. However, ultimately, the shooters require the dogs to work to flush the rabbits or the game. Will you explain again whether the scenario in which there is one person with a gun who does not have any dogs and two people—the beaters, if you like—who have two dogs each is illegal?

Two dogs per activity is the rule. If the activity is stalking, flushing or searching, however many people are working with the individual who has two dogs, the whole group is regarded as having the two-dog limit.

Would my scenario—two beaters with two dogs each, and one person with a gun—be legal?

No. That would be four dogs for one activity. If they worked separately and pursued individual quarry, or if the dogs did not work together, that would be fine.

The thing is that, in a rough shoot, there could be four dogs working through a piece of rough ground and flushing every piece of prey that comes in front of them. If there was one person outside that group who was shooting from under cover, those dogs would ultimately be working towards the gun, but they would not belong to the guy with the gun; they would belong to the beaters, who were flushing.

There could be one beater with two dogs.

In my scenario, there are two beaters with two dogs each.

I have said that that would be unlawful.

Okay, but that scenario often plays out on a rough shoot.

In those circumstances, that would be part of the minimal adaptation that would be required.

I will say where I am struggling. We have heard about how intrinsically different fox hunting and hare coursing are and how we can identify those behaviours because of the different dogs that are used and the different behaviours of the dogs. If that is so clear, surely it would be easy to construct an exemption to identify what rough shooting is. Police Scotland would then not have to work out how many beaters there were on a shoot, how many people had guns, which dogs were doing what and whether they were working together, or whatever. Ultimately, doing that would take the police away from ensuring that easily identified areas of illegal activity are being identified and prosecuted.

The crux of your point goes back to an exemption that would take rough shooting outwith the scope of the bill. It would be extremely difficult to define rough shooting, but that is a minor point compared with the much bigger points that we have already rehearsed—namely, that a glaring loophole would be created in the bill where the two-dog limit would then apply to everybody else, including farmers trying to protect their lambs from predation, but not to people—

Can you give us some examples of when a clearly defined rough shoot, as you understand it, could be identified as hare coursing or illegal fox hunting? When could that happen?

Those are utterly hypothetical questions. Ultimately, it is for the police, whom I have confidence in, to observe what is happening in the countryside and determine what it is. Of course, I want that to be as clear as possible, but I will not entertain increasingly hypothetical situations.

One reason why you said that the bill is important is to prevent activity that might happen in the future. Surely that is hypothetical.

Of course, in some ways that is hypothetical, but, equally, nobody talked about flushing to guns prior to 2002. We have proof that, after the 2002 act—I know that this was discussed in your round-table session—that became a cover for illegal hunting, so there is form in that regard.

My question was: where do you think that cover for illegal activities could be used or rough shooting could be used for cover?

I am sorry, but I do not understand the question.

You suggested that the two-dog limit will not have an exemption for rough shooting because, in the future, that might be used as a cover for illegal hunting activity. In what circumstances might rough shooting, as we currently know it, be used as a cover for something illegal?

I am not sure that I can answer that.

If there was no limit on the number of dogs that could be associated with a rough shoot, you could envisage a scenario in which a couple of people could take 10 dogs out with guns and say that they were out rough shooting. On the face of it, that could be exactly the same as a foot pack that operates. As we know, the only difference would most likely be in the breed of dog. We also know that to try to define something purely on the basis of the breed of dog would be problematic.

But you are expecting the police to do that.

09:45  

We are not asking the police to do that. The police have said that they will look at that as part of forming their overall picture, but we are not seeking to define an activity by virtue of the breed of dog that is employed. We know that that would be pushed at: people would use cross-breeds, hybrids, new breeds of dogs and so on. Therefore, that would not be a satisfactory way of proceeding.

Even though rough shooting does not currently look like someone taking a pack of dogs out in pursuit of a fox, we can see how an exemption for rough shooting could be pushed to the very limit, so that that is, in fact, what happens.

I call Alasdair Allan, to be followed by Karen Adam.

Convener, I think that you were supposed to call me after Jenni Minto, but then you came in and—

Okay. I will go to Alasdair Allan on that point. I can then come back to—

My question is on that point.

I will go to Alasdair Allan first and then come back to you, Jim.

I have no idea, but we might both be about to make the same point, for all I know.

You have run through a series of scenarios in your evidence, minister, and gone through them one by one. Some of them are hypothetical, as you have said.

We have had evidence from some stakeholders that referred to the potential difficulties that the police have indicated that they might face in distinguishing between some of those scenarios. In weighing up how the bill was put together, did you consider the option of going in the other direction? This is not a position that I am advocating, I hasten to add, but did you consider having the limit simply set at two dogs per shoot?

For me, that would create an inconsistency in policy terms, but I can understand and see why that would be an easier situation for the police evidence-wise. Although I will not put words in the mouth of Police Scotland, I suspect that its concerns about the position as it stands, some of which were expressed last week, relate to the belief that a two-dog limit per event would be easier for the police. Would that be proportionate for the rough shooters? I do not think that it would. Would it create inconsistencies in the bill? Yes. However, things would certainly be easier evidentially.

I will try to rewind back to where we were. First, however, I emphasise the point about the purpose of the bill not being to stop hunting altogether or the ability for rough shooters to continue to carry out their activities, which they will do perfectly legitimately—with minor adaptations.

Last week, Ross Ewing gave what I think was a genuine position on the point that the general public might not understand the position. The bill will be announced in the public domain as “Hunting with dogs has now been banned.” Is there something that the Government can do to update the right of responsible access so that people understand that rough shooting is a legitimate thing to do in the countryside and does not fall within the bill, unless somebody is going to use it as a loophole? Is there something that the Government can do at a later stage to ensure that the public understand what the position of the bill is?

Yes—absolutely. I have tried to do that from the start. From the inception of the bill, I have been very clear that it is about closing the loopholes of the past and preventing others from opening them. It is about ensuring that what has been unlawful for 20 years no longer continues, while farmers, environmentalists and conservationists still access and use dogs in the countryside. That has been part of the messaging from the Government from the beginning.

I am committed to that on-going dialogue and explanation of what is expected, not least on what people can expect in the case of vexatious complaints. I have said that I would be happy to work with the industry to provide guidance and messaging about what people should expect and when to expect it. However, I think it was you, Jim, who said in response to the points that Scottish Land & Estates made that, as regards the criminal law, it is ultimately not about what the public perceive or about their view; the criminal law is ultimately for law enforcement, which is very well adapted to making such judgments and observing actions in the countryside.

That is absolutely correct. On that specific point, I will quote Detective Sergeant Billy Telford. He said:

“We have talked about evidence and so forth, but we will still be able to use common sense and a degree of judgment to ask whether, in the balance of probability, an activity is a legitimate ... shoot or something else. That commonsense approach will take into account the types of dogs that are used, too.”—[Official Report, Rural Affairs, Islands and Natural Environment Committee, 23 November 2022; c 13.]

The police are already on board with how the bill is going to work. However, I understand the concern of Ross Ewing and others that the public might not understand it as well as we do. The convener’s point about being taken down so many rabbit holes—pardon the pun—of all the permutations that could or could not happen is what the shooting fraternity is coming back with in asking what will happen.

I understand that there is no way of legislating for all the possible scenarios but, given the way in which shoots are currently conducted, they will be able to manage themselves. Their concern is that the police will be called out every other day on some basis or other. There has to be an understanding that common sense will be applied and that the relationship between the police and the shooting community has to be a strong one. Do you accept that?

Yes, and I accept that that is already the case. A lot of that is underpinned by the strict regulation of firearms, for example. There is a relationship between the police and those whom they know have firearms and undertake shooting activity in their areas.

I am not going to pretend that Police Scotland has said that everything is cut and dried and straightforward. Specifically, I know that Mr Telford raised some issues about the two-dog limit, which Alasdair Allan raised. However, there will always be challenges with evidence in a rural setting, because of its very nature. The same applies to gathering evidence in a domestic setting: that is not easily corroborated, and things happen out of view. However, I was very pleased with the explanation that came forward from DS Telford about what the police would consider in order to build the picture: the breed of dog; the distance between the dogs; what reasonable steps had been taken to separate any dogs that had joined together; consultations with witnesses; discussions with experts; the seizure of phones; and common sense, which you mentioned.

The bill is mainly about animal welfare. Different types of hunt use different breeds of dog in different ways. We have heard how people manage and train those animals, and about how differently they behave. What are the differing concerns for animal welfare in different hunting scenarios? Does that make sense?

Yes, it makes sense.

Obviously, there are different degrees of concern about the different activities, for a range of reasons, including the ways that dogs are trained, what they are trained to do, how well controlled they are and what the oversight is like for each type of hunting.

However, my point is that I am not differentiating between the types of hunting. To do so just creates uncertainty. Rather than treat them differently, I want a consistent approach that is ultimately about regulating the use of dogs in the course of hunting in the Scottish countryside—not regardless of how they are used, but as a consistent thread through the bill, so that it applies to all dogs that are used in the course of hunting rather than in different types of hunting. Breaking that down would be fraught with opportunities for loopholes.

That is really helpful. Thank you. I note that we hope to close the loopholes that were created in the past legislation because it was not as broad.

Absolutely, and I come back to the point that was made by Lord Bonomy, who is an expert in the problems of the former bill. His view was that this bill was “well-crafted” and made things “simpler” and “clearer”.

Jim Fairlie will lead on topic 2.

I think that we have already more or less covered that topic, which is about the Scottish Government’s current thinking around how to interpret the section 6 provisions on game and rough shooting.

Yes—we have, so I will go to Mercedes Villalba.

My question around enforcement was also probably covered earlier by Karen Adam.

In certain circumstances, if a group of people are organising an event, they are required to notify the police. At last week’s round-table meeting, we spoke briefly about the possibility of a kind of voluntary notification for people who are concerned about potential vexatious allegations. They could self-report ahead of time, to make the local police aware of their activities, which would facilitate any sort of drop-in. Would the Scottish Government look at facilitating a measure such as that in guidance later on, rather than on the face of the bill? Could you outline any other measures to aid enforcement that you are considering?

Absolutely. Thank you for the question, Mercedes. I was interested when you mentioned that last week, at the round-table meeting. It was an interesting point for me because, in that very conducive evidence session, we managed to get clarity on what was expected during a rough shoot. I think that we managed to understand the conditions that would be expected, and we went through how some parts of the legislation would not require much change and others would require a bit of adaptation.

Despite accepting that, it all appeared to boil down to concern, especially from BASC’s point of view, about vexatious complaints. If that is a concern for the shooting industry, again, I am happy to work with its representatives on how to mitigate the risk of that. I have already said that I have not seen any evidence of that risk increasing as a result of the changes in England and Wales. I do not know how receptive the shooting industry would be to more bureaucracy, but, if its representatives come to me and say that they are very concerned about vexatious complaints, we would consider such a measure in order to mitigate that.

We have talked a lot about the clarification of potential enforcement issues. Can you explain to us what discussions you have had with Police Scotland about enforcement and the different scenarios that we heard about last week?

I have not spoken with Police Scotland since the committee’s round-table meeting; I am not sure whether officials have done so. We have been in contact with Police Scotland since the bill was introduced and we have been able to clarify certain points—for example, about the training of police dogs. I think that you raised that point in the stage 1 debate. We will continue to discuss with Police Scotland how to create the best possible enforcement situation. This is an odd situation whereby we are having this helpful but nonetheless extraordinary evidence session. I will certainly engage on that again prior to stage 2 proceedings.

Obviously, as you picked up from last week’s discussion, there is concern about vexatious reports. If the police received a complaint, could they close down an activity that was taking place?

That would be a question for the police. I am not proposing any enforcement powers within the bill that are additional to those that already exist in legislation to manage those activities in the countryside. Ultimately, how the police respond to complaints—vexatious or otherwise—is always a matter for them.

On that topic, if there was a suggestion of illegal activity within a rough shoot and the police were called, would you expect the police to stop the shoot to allow them to undertake an investigation, or would you expect that shoot to proceed? What is your view on that?

Scottish ministers will not direct Police Scotland on how to conduct its investigations.

Should that not be clearer in the legislation?

In response to Beatrice Wishart, I set out the fact that the investigative powers of the police are not changed by the bill. They are as they currently stand within pieces of legislation such as those around the regulation of firearms. I am not going to deliberate on how Police Scotland does its job.

10:00  

On firearms, if illegal activity were identified at a rough shoot, would you expect the police to temporarily seize the firearms of those involved?

Again, that would be done in accordance with existing legislation that regulates the use and the removal of firearms in certain circumstances. This bill makes no difference to that.

Okay—so, you do not know whether that would be the case.

It is not a case of not knowing. I am part of the Executive and I am not going to direct Police Scotland on how to conduct its activities.

I have a supplementary question about the idea of rough shooting being used as a cover for hare coursing. Can the minister tell the committee at what time of the day and at what time of the year hare coursing happens?

I do not have an answer to that, I am afraid. I am not an expert in—

Would it happen at the same time as rough shooting? Is that why you think it could be a cover for that activity?

Hugh Dignon has just made a good point to me, which is that we have never said that it would be a cover for that—rough shooting.

Hare coursing takes place primarily at night, and we are not saying that rough shooting would be a cover for that. We are saying—

So, what is it a cover for?

Sorry?

What is it that you are saying? The idea of it being a cover has been referenced many times. What is rough shooting a cover for?

At present, rough shooting is not a cover for anything.

What could it be a cover for?

If there were no limit on the number of dogs and the only way that a person could take more than two dogs out to the countryside in pursuit of some animal was through the use of an exemption that said that rough shooters could do that, people who were engaged in any number of activities could take those dogs out and say that they were rough shooting.

So, which activities?

Hunting foxes, for one.

Right. You are saying that people who rough shoot would go out with hounds.

I am saying that, unless an exemption for rough shooting applied only to certain breeds of dog, people could take hounds with them for other purposes. However, we know that trying to limit an exemption in that way would be problematic.

So, how will the prosecutions of hare coursing increase if it is not specifically being looked at? How does that relate to the inclusion of rabbits in the bill?

At present, people who are going hare coursing sometimes claim that they are going after rabbits, which is currently lawful. Bringing rabbits within the bill would make going after rabbits illegal, so those hare coursers would not be able to claim that they were out after rabbits.

Okay, so rough shooting is not a cover for hare coursing, because you said that hare coursing happens at night.

As far as I know. I think that it happens primarily at night.

And rough shooting does not.

Again, as far as I know.

Minister, with regard to the points about the investigative powers of Police Scotland, have you had a conversation with Police Scotland about the potential for increased numbers of complaints—vexatious or otherwise—with regard to Police Scotland’s role and ability to carry out what the Government wants it to do, which is to stop whatever it is that you are trying to stop through the bill? Does Police Scotland have the ability to do what is being asked of it, given the cuts in its budget?

Convener, again, there are a number of questions in there, and I am finding it increasingly difficult to follow exactly what it is that Rachael Hamilton is trying to ask.

As I said, we have had on-going engagement with Police Scotland. We will continue to engage with Police Scotland as issues arise. At your round-table discussion last week, when the operation of the bill as it pertains to rough shooting was explained, the issue of vexatious complaints was raised by BASC and others, and my officials and I will engage with Police Scotland on that, likely before the formal move to stage 2.

On enforcement, investigative powers and police funding, I have confidence in Police Scotland’s ability to fulfil the requirements. Detective Sergeant Telford said that he has views on how the bill could be better but that, ultimately, Police Scotland will work with whatever is passed.

When will the guidance that you mentioned be produced, so that there is more clarity? Will we see it before stage 3?

I apologise for not being clear with regard to the intention of my questions. I find it difficult to understand the drafting of the bill, so it has been difficult to articulate questions.

It is not a problem at all. I hope that this session and the additional questions on rough shooting have provided clarity. There are inherent complications in producing a piece of law of this type. That is probably why a well-intentioned piece of work in 2002 ended up creating loopholes for the next 20 years. None of us should pretend that this is not a complicated area of law. However, I go back to Lord Bonomy’s view that what we have produced is a great deal simpler and clearer than what is there at the moment.

I have not said that I will produce guidance; I have said that I would be happy to discuss the production of guidance with the shooting industry, if that is something that would help in that bedding-in period that was discussed at last week’s round-table meeting.

Jenni Minto, do you have any further questions on the flushing aspect?

I have no further questions, and I think that the minister has already been here for six minutes longer than scheduled.

I will bring in Mercedes Villalba.

Thank you for your time today, minister. I have a quick follow-up question on the discussion that you had with Alasdair Allan earlier about the definition of “pack”. I believe that you said that, for the purposes of the bill, more than two dogs would be taken to be a pack. Is the number of dogs the only factor in the definition of a pack, or will activity also be a consideration?

The number of dogs is the principal factor, but, of course, they would not be considered a pack if they were on opposite sides of a field, so the activity is relevant, as the dogs would have to be together.

That brings us to the end of this question session. I appreciate you and your team coming to the committee, minister. I hope that, by stage 3, we will not have a bill that requires students of the future to look at the loopholes, as you had to do. I am sure that we can get to a stage at which the bill is clear and Parliament can accept it.

We will suspend the meeting for 10 minutes to allow the witnesses to change over.

10:08 Meeting suspended.  

10:13 On resuming—