Rural Affairs and Environment Committee

Meeting date: Wednesday, October 6, 2010

Official Report 503KB pdf

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Wildlife and Natural Environment (Scotland) Bill: Stage 1

Item 6 is further consideration of the Wildlife and Natural Environment (Scotland) Bill. I welcome Dr Hal Thompson, who I understand has just recently retired from the school of veterinary medicine at the University of Glasgow and who is representing the British Veterinary Association today; Professor Colin Reid, professor of environmental law at the University of Dundee; and Patrick Stirling-Aird from the Scottish Raptor Study Groups.

To make best use of the time available, we will not ask for any opening statements but will move directly to questions. We have all seen your written submissions, which were very helpful.

We have heard previously that there appears to be a lack of narrative in relation to the bill. It is probably acknowledged that in many senses it will tidy up existing legislation. Professor Reid, in your evidence you talk about the lack of a “unifying vision” and you express disappointment not so much with what the bill does but with what it does not do. Will you elaborate on what you see as a potential unifying vision, if it is not too late to achieve that?

There are probably two dimensions to that. One is the purely technical point that the state of the statute book in this area is atrocious; it is simply not fit for use. If anybody has tried to plough their way through the amendments that have been made, they will know that it is simply atrocious. Preparing a clean, consolidated text of part I of the Wildlife and Countryside Act 1981 would allow people to see and understand what the law states. Ideally, you would then consolidate the Conservation (Natural Habitats &c) Regulations 1994, which were amended four times in one year. There has been a recent consolidation south of the border, but we are still waiting for it in Scotland.

Once you had done that, you could then try to integrate the 1981 act and the elements of the 1994 regulations that protect wildlife here under domestic and European law. That was done successfully in the Nature Conservation (Scotland) Act 2004 for habitat protection, where sites of special scientific interest and sites designated under European law were largely brought together. You could do the same for the species protection measures. Then you could do the tidying up and harmonisation that you have heard about in relation to powers of entry, single witness offences and so on. That is the more technical side of it.

The other dimension is the much harder issue of working out what we are trying to achieve in the countryside. That is essentially a political matter. Is there a vision? The bill that has emerged is much better than the initial consultation paper, which seemed to show that each individual chunk was being driven by quite different purposes. For example, at one time, particular elements of the deer legislation seemed to be about deer welfare; at other times, they seemed to concentrate on the control of hunting effort. The purposes were not clear.

If you tidy up the technical side, you then have a strong basis on which we can start debating what we really want to achieve.

From your experience of discussions with other stakeholders and possibly even Government officials, do you think that there was ever an intention to undertake the sort of tidying-up of the rather cluttered and messy landscape that you have described?

When the 2004 act was being debated, there were some big suggestions that the Government thought that it would be a good idea to get round to consolidating it all sometime, but that has not materialised yet.

You make the interesting point in your submission that the bill will introduce a section 14ZC into the 1981 act, which indicates the amount of updating that has gone on over a period of time. Obviously, consolidation would be a fairly onerous piece of work. Can you suggest who might best be able to advise the Government if it was looking at bringing together all the legislation?

I find myself slightly mystified as to why nowadays consolidation is always seen as being quite so difficult, given that there are commercially run electronic databases that give you at least a very good starting point for producing a more or less clean text of an act as amended. That leaves all the difficult issues of the knock-on effects, the investigation of all the side issues and so on. My experience is that that is largely a matter of resource. Consolidation is not sexy; it does not win you votes. It pleases a few lawyers and lots of students. There are large chunks of statutory material that I feel that I simply cannot teach students by using the primary sources, because they are in such a mess. Consolidation takes time and effort. The gains are not felt by lawyers, because many of the people who are working with the legislation day to day have their own electronic updates. Previously, they literally cut and pasted versions to work with. However, having clearer legislation is so important to ensuring public access and understanding. It helps you to explain what the law is, which helps you ensure that it is understood and enforced.

Your submission also refers to the reliance on codes of guidance, general licence directions and so on. That approach is not confined to the bill; it has been a characteristic of most of the legislation that we have put through the Parliament. Do you think that the balance is right? Should more appear on the face of bills?

There are two issues. One is that as far as possible you should have stuff on the face of the legislation itself if people are to be guided by it. However, I fully accept that, particularly in dealing with the natural environment, where there are so many different circumstances and contexts, it is impossible to have clear, simple, sensible rules for everything.

The second issue is how the further details are to be provided for and scrutinised. There is an issue with codes of practice. The more important they become to how people understand the law and how they apply it, the more you have to consider whether they are being scrutinised properly. There is a huge difference between what is in the law, on which legal rights and prosecutions are based, and simple guidance. However, when that boundary gets blurred because the law is expressed so vaguely that, in practice, the guidance becomes more important, you need to think about how that guidance is presented, whether there is accountability for it and whether it can be accessed appropriately.

Is there anything that you think ought to be on the face of the bill but is not?

I worry about the breadth of the provisions on non-native species. There will inevitably be difficult, marginal decisions to take because of scientific uncertainty around a range of circumstances. However, I think that it would be possible to put in some guidance to provide a bit more information that at least helps to frame the discretion and considerations that will be applied at a later stage and which addresses the extent to which the Parliament should have an opportunity to scrutinise some of these measures. That would not necessarily happen every time a change was made, but there should be a more formal requirement to conduct a review every now and again or the first time that codes are produced to ensure that they are given the attention that they deserve.

12:15

Let us focus on what you have said about invasive non-native species. What problems might arise from the use of terms such as “native”, “native range” and “in the wild”? Could guidance provide a clear explanation of how they are to be construed?

That is a difficult issue. There is huge scientific argument about what is meant by “native”, “indigenous” and so on. There are also problems with time periods concerning native species that are naturally reintroducing themselves or are being reintroduced by deliberate or unlawful human activity. The phrase “in the wild” tends to make people think about animals, but it is plants that particularly worry me. What on earth is “in the wild” for a plant? If a roads authority plants crocuses at a roadside, it is introducing a non-native species into the wild. Will you prosecute every roads authority that does that, or will there be an option for ministers to make orders excluding from prosecution planting by particular people within a certain distance of the roadside? You have received evidence from the falconry people, whose whole activity often involves the release of non-native species into the wild. It might be possible to have a ministerial order to deal with that specifically; however, you would end up with many exemptions and a complicated law

Although the basis of the precautionary approach—you just do not do it—is good, it is difficult to strike the right balance. It might be useful to include some guidance in the bill, so that the Scottish ministers do not have carte blanche in deciding future control of what happens.

I presume that part of the definition is whether the species is within its natural range. Most falconry would involve the bird being within its natural range in Scotland; therefore, it would not be the introduction of a non-native species. I also presume that, if the plants that an authority planted by the roadside were native species within their own range, they would not fall foul of the legislation.

They would not. However, I believe that some falconers use more exotic species, and lots of plants that we plant are not native. An awful lot of garden flowers are not native. The lodgepole pine and Sitka spruce are huge forest trees. Is a forestry plantation “in the wild” or not? If you dumped somebody there on a wet Saturday evening, I think that they would say that they were in the wild, but would the area be in the wild for the purposes of the bill?

You have probably read the submissions that we have received on single witness evidence. Your own proposal is to harmonise the law. It has been suggested to us that such evidence is never actually used. Do you know whether it is used?

I have no practical experience of that at all. I just wonder why it is included in the bill. If it is in the bill but not in other legislation, why is that?

So, when you talk about harmonising it, do you mean getting rid of it entirely, or—

A consistent approach could be that we need it for this and lots of other things because it is useful and helpful, or that it is not worth while and we should scrap it altogether. The inconsistency here and in other elements of the bill and other legislation makes life harder for everyone.

You say that you are not aware of single witness evidence being used, but do you envisage its ever being used?

I never qualified as a practising lawyer; I am a pure ivory-tower academic. I am afraid that I do not know. I am unqualified to do anything, so I cannot answer that, I am afraid.

Mr Stirling-Aird, do you have a view on single witness evidence?

There is an illogical position at the moment, as such evidence will apply in egg-collecting cases but not in the case of someone who is seen shooting a golden eagle. The view of the Scottish Raptor Study Groups is that single witness evidence ought to be either taken away or expanded to cover more situations in which crimes happen in remote places and evidence is extremely difficult to get.

Colin Reid mentioned falconry. Although native species are used, many falconry birds are now hybrids and there is real worry that, if those hybrids escape, they will mate with native species and dilute their genetic purity, if I can put it like that.

I will give you a scenario that was put to us by RSPB Scotland. If a hill walker finds a poisoned golden eagle on a hillside, that can be evidence; however, if an RSPB officer goes on to an estate and looks for said golden eagle, that cannot be evidence. It has been suggested that the law might be changed to allow people to enter what are rather large estates to look for poisoned golden eagles, but Sheriff Drummond said that that would create great problems. To be fair to Sheriff Drummond, I am paraphrasing, but he seemed to suggest that there was a parallel between large estates and back gardens in terms of the rights of the police and other individuals to enter to collect evidence. Can you provide any comment on that?

I have heard recently that there would be a lot of advantage in having a multi-agency group to investigate. I read the evidence from the Scottish Society for the Prevention of Cruelty to Animals. It seems sensible that the SSPCA should have an extended power to go on to land to investigate dead animals—poisoned birds, for example—as well as live animals. Was that RSPB Scotland’s point?

It was about the need for a warrant. If someone finds a poisoned bird while they are walking across a mountainside, that is legally admissible evidence—I am sure that one of our witnesses will correct me if I am wrong. However, it would not be legal for someone to go looking for a poisoned bird that they had been told was there without a warrant. RSPB Scotland asked whether that situation should continue. I was also going to ask you about the SSPCA’s evidence, though, so thanks for answering that question.

As I understand it, there is a grey area around someone—say, an RSPB Scotland employee—going looking for evidence. There was one court case involving peregrine falcons down in Peeblesshire, in which that type of evidence—I think that it was video evidence—was thrown out as being inadmissible. However, I believe that there have been other sheriff court cases in which such evidence has been admissible.

There is a need for more evidence gathering, if I can put it as broadly as that, to deal with some of these crimes. Wildlife crime has rightly been described as a crime without witnesses.

As I understand it, Sheriff Drummond’s point was that to extend the powers of search and entry that only an impartial group—the police—currently has to people such as SSPCA officers would be to give those powers to people with a declared vested interest. What are your views on that?

If asked, the SSPCA might say that it does not have a vested interest and that it is objective—that would be the obvious answer. Logically, it would make sense for the police to do all of that work if they could; the trouble is that they are underresourced for wildlife crime. It is up to the individual chief constable to decide how much attention he pays to wildlife crime and, in Glasgow, he may feel that there are too many murders and drug problems to devote much resource to it. I may be straying from the main point here, but I believe that wildlife crime is also not a recordable crime. If it was technically a recordable crime, there would be more incentive for the police—in fact, more pressure on them—to deal with it.

I have not been in this position myself, but if somebody finds a dead bird or an illegal trap it is often very difficult for them to get a police officer to come out. That is why there is a need to broaden the investigatory powers in some way.

I do not want to get tied down to just the SSPCA. The implication was that if an individual from any organisation was told that a dead bird that had been poisoned was on a site and they went and looked for it, that might not be admissible evidence. John Scott makes a good point, which I am curious about. If such evidence was admissible—if people could go on to the land to look for the bird without a search warrant—would that have major implications in relation to entering homes, or can we legally differentiate clearly between 80,000 acres and a house and its immediate environs?

I think that there is a big distinction. The police need search warrants to enter houses and perhaps other buildings—I am not sure. There is a vast difference between entry on to 80,000 acres in the middle of the Cairngorms and, for example, intruding on the privacy of a gamekeeper in his house and garden. I could see a human rights issue perhaps coming up. If it does, I think that it should be less of a concern in relation to the 80,000 acres than it is in relation to someone’s house and garden.

Perhaps Professor Reid, as a legal expert, has a view.

I am a legal expert on some things but certainly not on the laws of evidence. I have some concerns about diverting from the standard rules, because somebody’s property is somebody’s property. Where do you start drawing the boundaries? The law has enough trouble with things such as premises. For example, in another context, issues have been raised about polytunnels. If you want to be able to walk around a field that is covered in polytunnels, are you actually going into buildings?

I do not think that the matter should be dealt with on the hoof. There is a bigger issue with powers of entry and inspection, which be should be looked at a bit more thoroughly. There are appropriate parallels with the powers of wildlife inspectors and other people. There are even the utility companies’ wide powers of entry for various purposes. The list goes on. The focus should not be too narrow.

But if—

Dr Thompson has been waiting to come in for ages.

In my time at the University of Glasgow, I was a pathologist, so I have probably a great deal of experience of wildlife crime and of the victims of wildlife crime being brought to my post mortem room. As has been suggested, there is a problem with evidence.

I had an open-door policy. If somebody brought me something that was dead, I would post mortem it. I did not work for a particular interest; I would post mortem what happened to arrive. The majority of wildlife crime was brought to me by the SSPCA rather than by police forces. One reason for that is public perception. The public has a right of access. Say a member of the public wandering across a piece of ground comes across a badger that is snared by the body. If they are offended by the presence of the dead badger, sometimes the first people they approach are the SSPCA, which they regard as being responsible for animal welfare. They may not necessarily go to the police force because they think that, if they do, there might be complications. That is the public’s perception of welfare. The problem is that, if the SSPCA collects the badger’s body, that evidence may not be admissible, because the SSPCA does not have the same rights as police officers have in such circumstances. That issue should be examined.

I support the SSPCA’s proposal. I do not think that it is asking for the right to search premises, which is entirely different. I think that the SSPCA would wish to have the presence of police officers with its officers, because in those circumstances it would operate as a joint agency. The SSPCA is not asking to be allowed to burst into premises or anything like that. The issue is about the practicalities of finding dead bodies and dealing with evidence.

12:30

Can you clarify one thing for me? If someone calls the police and says that they have found a badger or a poisoned bird, do the police need to get a warrant to enter the land to collect the carcase or can they just collect it?

I do not think that the police need a warrant.

They can just go on to the land.

I think that they can do so by right but, theoretically, SSPCA officers would require a warrant. The practicalities are that the public will phone them up and they will go and assess the situation. If they find an animal that is close to death or one that they have to put down because it has been badly damaged by a snare, it will be problematic whether that evidence is admissible.

Yes, that is my understanding.

There is an issue that I want to clarify before I come on to my main point, because I think that there is a danger that John Scott said something that I do not think was correct. My understanding of the situation is that if an SSPCA officer arrives at the scene of an incident—let us say that a bird has been caught in a pole trap and is still alive when the officer arrives—they can deal with the matter almost in the same way as the police could deal with it. They have the right to caution people, to take statements and to seek evidence. I think that it is also the case that they are authorised by ministers to enter premises when there is an animal welfare issue.

It is my understanding that if they arrived three minutes later and the bird was dead, they would not have any of those powers. That is the issue. The SSPCA says that it attends most incidents for the reason that Dr Thompson has given. If it is an animal welfare case and the animal is still alive, its officers can deal with it, but if the animal is dead, they cannot. We need to clarify the position—perhaps we can come back to that. I just wanted to put it on record that we need to sort that out.

I want to widen the debate. You will have heard the arguments about people’s concern that bird poisoning or the trapping and subsequent disposal of birds, which has caused great public outrage, is still continuing. The trend in the recent past seems to be that the number of such incidents is increasing rather than declining. People are fed up about that and want something to be done.

An issue that emerged at a previous meeting was that of vicarious liability. Sheriff Drummond rightly told us to be careful how we used the term “vicarious liability”, as it has a specific meaning in law, and I am sure that he is right about that. Nonetheless, there is a sense that we must be able to put a greater responsibility on the owners or managers of estates to ensure that, ultimately, someone is accountable for what happens on those estates. That is the context in which the concept of vicarious liability has come up. I would be interested in the views of Professor Reid and Patrick Stirling-Aird on that, particularly in the light of Sheriff Drummond’s evidence to us—if you have had a chance to look at it—and his subsequent supplementary submission.

My feeling is that something, whether it is an additional form of licensing or vicarious liability, is needed, partly to deal with a moral question. I will try to explain what I mean by that. I know that reference has been made to a scorched earth policy with grouse management. In a situation in which an owner or manager feels the need to carry on breaking the criminal law, year after year, they will argue against personal responsibility. They will argue that the law does not need to be strengthened while continuing to let their employee carry the can. If the employee is caught, he will be prosecuted and convicted, but they will be in the clear.

There are different shades. There are those employers—incidentally, I am a member of the Scottish Rural Property and Business Association, so I think that I can see that side of it—who do their best to make their employees stick within the law, there are people on the middle ground and there are those at the extreme grouse moor management end of things, for example, who may put in written contracts, “You will obey the law,” but who do not mean it and who put pressure on the employee to break the law. I think that there is a strong moral fallback on an employer in that position.

How could we prove that someone did not mean what they put in a contract?

Some will mean it and some will not. There is not court-of-law proof; there is anecdotal information. It cannot be relied on totally, but we can draw something from it. I am not saying that it meets the standard of evidence—of course it does not—but I have heard stories about interviews with gamekeepers in which that sort of point has come up.

Sheriff Drummond, in his supplementary evidence, drew close parallels with the world of drugs supply. In relation to drugs, the law explicitly provides for what you have just described, but it does not do so in relation to bird poisoning. Just as you cannot produce absolute evidence, very few people could produce absolute evidence that somebody is behind a drugs cartel, but we have created a law to get those people nonetheless. I ask Professor Reid to comment on that point and on my earlier questions.

Vicarious liability has been a long and complicated saga in the law, particularly in relation to corporate liability and the extent to which a company is liable. There is a useful discussion of many of the issues in the English Law Commission’s paper “Criminal Liability in Regulatory Contexts”, which is mainly about corporate liability. It might be a trust that owns an estate with an individual managing it. Among other things, the Law Commission points out that we can create specific offences to deal with the particular mischief that we are aiming at. It gives the example of the new Bribery Act 2010, under which a company commits an offence if somebody who is connected to it commits an act of bribery on its behalf. The company has a defence if it had adequate procedures in place to prevent the offence. In the context that we are discussing, that would require more than just having something in the contract; it would require being able to show that the instructions that gamekeepers were given were appropriate.

If you try to apply a general concept such as vicarious liability in one area, the question is: why pick that area rather than others? It is better to have a particular offence. You would need to identify what you are trying to capture and what you can actually prove in the circumstances that are likely to arise and then try to target it that way.

From what you say, you believe that it is possible to have a specific offence in relation to the issues that we are describing and to construct the law in such a way that we increase the chances of prosecuting the right people, if that is the ultimate desired outcome.

You could do that, but you would have to be clear about exactly what you were trying to get at and be aware of the need to be fair all round. You do not want to have neighbours feuding and lobbing dead birds over the fence on to each other’s land and things like that. I hope that that does not happen, but we need to think about how the system could be abused.

Anecdotal evidence suggests that it does happen.

Well, you hear such stories.

I want to add a further point that has occurred to me on vicarious liability. An element of fairness and fair play should obviously come into the matter. I wonder whether it would be a more acceptable provision if there had to be a history of continuing criminal activity, as some places have. Some estates have been named publicly, although I will not name them now. In two or possibly three estates, there has been a run of several years in which poisoned birds, illegal traps of one form or another or shot birds have been found. If an estate has had eight, nine or 10 years of that, as in one case, would a vicarious liability provision be fairer than it would be in other cases?

If we take the example of the Bribery Act 2010, under which a company is liable unless it shows that it has adequate procedures, if there had been eight years of the same thing happening, it is fairly obvious that any defence that was mounted that adequate procedures were in place would fail. That thinking might be a way forward.

I want to move us on slightly. I recognise that there are highly complex legal questions on the concept of vicarious liability that might ultimately make it difficult for it to stick.

In today’s evidence from the raptor study groups, and in evidence from SNH and others, we have heard about the alternative notion of licensing estates to carry out grouse shooting, for example. There seems to be an association between grouse moors and potentially illegal activity, although it is not everywhere.

The notion is that if we could find a way of licensing an estate, and there were breaches of the terms of that licence, which would have to be specified, and if there was evidence over time—as there has to be with pub licences if there is constant rowdiness or the police believe that drugs are being supplied from the pub—when the committee next considered the licence, it could decide whether to remove the licence to practise or to place constraints on it. Licensing might not be an alternative, but could it be a way of dealing with the problem?

Licensing could be an alternative or an add-on, but there would be a lot of sensitivity about that and, in a way, it brings me back to the moral point: it might help to tackle what I see as the moral falling down of some owners and managers of land. I presume that removal of the licence would come in only when there was a conviction, not on suspicion, which would be quite right. I understand that in the European Union, for example, Germany, the Netherlands and Spain have procedures that one could follow. There is a lot to be said for the idea.

Incidentally, it is not just upland grouse moor estates that would come into the picture. For some species, particularly the goshawk, there is a good deal of evidence of lowland bad practice. It is a neglected species, in a sense. We hear about golden eagles, peregrines and hen harriers, but we do not hear so much about goshawks. Licensing would have implications for lowland estates as well as upland ones.

Have you thought about licensing as a mechanism, Professor Reid?

I have thought about it as a technically possible solution, but I am not convinced because the costs and the burden would likely be disproportionate, especially when we try to define what is being licensed, how often it has to be reviewed, how transfers of licences will be dealt with when estates change hands, whether there should be an appeal procedure, how renewals will be done, whether there will be fees to pay and so on. I am not convinced that the mechanism would be in proportion to the size of the problem, serious though it is.

I disagree with that, although I am coming from the specialist perspective of raptor monitoring and conservation.

We have had years and years of the voluntary approach. Leslie Brown wrote a book in the “New Naturalist” series that was published in 1976, and it dealt with the situation up to 1972. He was convinced that the soft sell had failed and that what was needed was a good hard bang on the ear. That is equally true now.

It might be in the interests of estates as a whole for such a licensing scheme to happen. I know that they argue against it, but for those in the conservation community who have information about the issues, shooting management has had bad press. The bad apples spoil it for others.

In the long run, if we had a more stringent enforcement system using one of the proposed methods, the public perception of sporting and shooting would improve. It would benefit the estate-owning and sporting community rather than work against it, and it would help to finally get rid of what are still quite widespread bad practices.

Dr Thompson, do you have a view on licensing?

I have a very general and personal view. We are several steps away from holding estates responsible for their employees. I think that estates would put up quite a striking defence, particularly having seen the defence of certain individuals by powerful advocates for what might otherwise be regarded as fairly minor offences.

You should concentrate on and enforce the current legislation, and things will follow from that. I would not recommend diverting your efforts away and going along a more vicarious route. I would concentrate on what I think is reasonable and effective legislation, and then enforce it.

12:45

One of the problems is that although the existing legislation is good it is not enforced. With spending cutbacks, what will police forces do? They will perhaps spend less on enforcement than they do at the moment.

There are agencies that can investigate and enforce, and they should be encouraged to do so. Some areas are difficult places to go, but if convictions are brought things will eventually come to the surface.

Thank you for that. We must now move on.

We have heard a range of opinions from witnesses regarding snaring. We heard from the Scottish Gamekeepers Association that, when an animal is caught,

“its instinct is to lie like a dog or hide,”—[Official Report, Rural Affairs and Environment Committee, 7 September 2010; c 2975.]

especially at night. The SSPCA witnesses told us something different—that they have seen a lot of injuries caused by snares. We heard from the Veterinary Association for Wildlife Management, which emphasised the fact that a snare is used as “a restraining device,” and told us that the way to ensure that that happens effectively is good design. Do the witnesses—Dr Thompson in particular—think that it is possible to make a judgment about how humane snaring is compared with other methods of predator control?

Any form of control of vermin is not pleasant. Being trapped by a snare is not pleasant. The natural instinct of an animal that is trapped by a snare is to attempt to get away. In some cases, they will do the most remarkable things. I have seen otters spin on a snare; they will turn a legal snare into something that is illegal. I have fairly big hands, and I could not unwind it. The force that is required to turn a wire snare several times is unimaginable.

You have to accept that snaring is an unpleasant activity. However, if someone’s birds or lambs are being eaten by foxes, for instance, or if their fields are being destroyed by rabbits, they need a reasonably effective means of disposal. What is in the bill is excellent. If the bill is adopted and its provisions put in place, that will provide for very effective use of snares. In other words, you would be telling people that snares must be checked within 24 hours, that they must have labels and so on. All those things are very sensible and reasonable controls, and they present a balance between the people who require snares and the people who are interested in the protection of animals and animal welfare. I do not have any problems with what the bill contains in that regard. It is a commendable piece of proposed legislation.

I would not argue with that. However, the question of snaring is not within the ambit of Scottish raptor study groups. I have some views on the subject, and every individual member will have his or her views on whether or not snaring is justifiable.

There is one aspect that is definitely of concern to us, however, and we responded to the Scottish Government consultation on it a year or two ago: the snaring of mountain hares. They are an important prey species for raptors, particularly golden eagles. In some places there has been a policy of attempting to eradicate mountain hares in order to stop the louping ill disease and to benefit red grouse. A fairly recently published paper says that that is a waste of time. Leaving aside whether it is or is not, however, and acknowledging that it is legally a grey area, I think that steps should be taken, one way or another, to stop the widespread culling of mountain hares by snaring.

Dr Thompson, from your career experience, could you give the committee a bit of a steer regarding the effects on an animal that has been caught in a snare for 24 hours?

The animal will be damaged, but it depends on the type of animal. If someone catches a fox in a snare, they have caught the intended victim, and their job is then to dispose of the fox humanely, which is normally by shooting it. The problem comes when species that are not intended to be caught are caught, for example badgers or otters. The bill says that, because a snare is free-running, the badger or otter should be released. That is not as easy as you might imagine: the animal will be angry and they have large teeth, and a person without gloves who attempts to release them single-handed has practical difficulties in doing so.

In some cases, if an animal is in a snare for 24 hours the skin will probably break after it is released. I have sometimes wondered whether to release a badger in a snare or shoot it. Would it be more humane to shoot a badger that I have found in a snare? If I heard that someone had chosen to shoot a live badger caught in a snare, I would not necessarily criticise them. I have examined the skin from badgers under those circumstances, and I have found underlying pathology. In other words, I can imagine that after the animal is released the skin would break a week later, because of the pressure that is created.

Snares are a necessary evil—I speak as a veterinary surgeon. If you were to take a vote of all veterinary surgeons, I suspect that the majority would be opposed to snaring, but a different view would probably be taken among rural veterinary surgeons. It would be much the same as asking veterinary surgeons whether it is a good thing to eliminate badgers. The vote would probably be that it is not, but veterinary surgeons in the south-west of England who deal with tuberculosis would take a different view.

The use of the snare is something that we expect, sadly, but I return to the point that I have already made: I could not fault the proposed legislation—I think it is excellent. It has to be enforced, however.

Thank you. It is right to express the balance that is required to ensure effective management.

Something occurred to me when you were speaking earlier. Do vets come across illegal or other snaring incidents often? Are they often called out for that?

There is a wide range of circumstances in which damaged or injured animals come to vets. On the point that Bill Wilson raised, if someone who is out climbing a hill or wandering through a wood comes across an injured animal, what is their first port of call? Who do they take it to? In some cases, they will take it to a vet, who ends up looking at the injured animal. It is a matter of perception. If that vet thinks that there has been an offence, whom do they contact?

That was going to be my next question.

The point of contact would be the SSPCA, because vets regard it as a welfare organisation. The vet would not necessarily think that there had been a crime, although I applaud the wildlife officers who work under the partnership for action against wildlife crime for their efforts.

Let us go a stage further. When someone dumps on you the body of a poisoned bird or an animal that has been damaged in a snare, are you under a duty to report that to the police or to anyone else? Are vets under a duty to take such action?

Vets have two duties. If they found something that they thought was wrong, they would report it on moral grounds. If they thought that a crime was involved, they would have to take action.

Is that part of the professional ethic or code of a vet?

Yes. In the past year, I have seen about 20 dead buzzards of various sorts. You start by looking at them as dead animals with no history, as no one brings them in. The majority will have died from emaciation, simply through lack of food. Life is tough out there, even for a buzzard. However, you will find some with carbofuran, which consists of little blue pellets. I refer such cases to the person who brought the bird to me—sometimes that is a wildlife officer or someone from the SSPCA—so that they can take the matter on from there.

We have received a submission from Grigor and Young about snaring. It refers to section 13 of the bill, which will insert in the Wildlife and Countryside Act 1981 a new section providing that

“The identification number which appears on a tag fitted on a snare is presumed in any proceedings to be the identification number of the person who set the snare in position.”

The submission suggests that the problem with the provision is that snares can be tampered with by others or moved by wild or domestic animals. Unless the person who set the snare had photographic proof that they had set it in a particular way, it would be difficult or impossible for them to prove that they had not set it incorrectly. Have you considered that?

I have not considered it in detail. I know that vaguely similar provisions in road traffic legislation—the presumption that the licensed keeper of a motor car is the person who parks it or who was driving—have given rise to human rights arguments, but I cannot remember the outcome of those cases. The provision is not unique, but it is of a sort that can cause difficulties. Given that so much can happen to a snare in the wild, I can see why there are concerns about the provision.

The problem that the committee faces is that, although all of us are opposed unequivocally to wildlife crime, we are struggling to find the best way of delivering the proper proof that is necessary for a case to stand up in a court of law.

The provision is a way of avoiding that. We must consider whether penalising the person who is authorised to set the snares is going too far or whether it is an appropriate way of ensuring that they devote proper care and attention to what they are doing.

We will move on to species licensing. There seems to be an anomaly between protection of species under the natural habitats regulations and under the Wildlife and Countryside Act 1981. Do you agree with SNH that the tests of public interest that both pieces of legislation require are the same?

13:00

A separate test applies to birds. In relation to animals, the 1981 act has a list of specific purposes for which licences can be granted with regard to species that are protected under domestic legislation. Under European regulations, however, as well as some specific items there is a more general provision about a licence being granted for social, economic or environmental purposes. It seems to be a bit odd that there is broader provision for the European species, which were supposed to be the more protected ones, than for the domestically protected species and that we had to fit within narrow gaps. Given that the provision in the bill talks about there being

“a significant social, economic or environmental benefit”

and

“that there is no other satisfactory solution”,

I think that it is just to make life easier rather than to force things into narrow categories or discourage people from seeking a licence because they think that they might have trouble fitting into its requirements even though it might be justified. I do not see any particular problems with that broader provision.

If someone is refused a licence, should there be an appeal mechanism and, if so, to whom?

Appeals are a big issue, given all that is happening in relation to the civil courts review and tribunal systems. With the licensing powers being transferred to the ministers, if the ministers were to refuse to issue a licence, any appeal would have to be to an outside court, tribunal or some such body—perhaps to the Scottish Lands Tribunal or Scottish Land Court, which has the SSSI powers. If SNH has such licensing powers, there could be an appeal to ministers.

Is an appeal mechanism necessary? If the expectation is that one will not get a licence, and so being allowed one is a bonus, it is arguable that there is less need for an appeal mechanism. If, however, your view is that the prohibition is deliberately broad and people expect that they will be allowed licences, an appeal provision is more appropriate. From a Human Rights Act 1998 point of view, would the decision to refuse a licence determine somebody’s civil rights and liberties? I suspect that it would not, on the basis that if the general prohibition is acceptable, that is the starting point and any licence is an exception from it rather than an interference with rights. I could set an essay on the subject for my students and I would expect them to argue both ways, but on balance, I would say that an appeal provision is not necessary. Thank you for the suggestion for my course.

Let us move on swiftly to raptors. Peter Peacock has some questions.

There appears to be evidence of an unexplained number of missing raptors in certain territories—there are up to 50 fewer golden eagles than might be expected annually in certain territories. Equally, the spread of red kite on the Black Isle seems to have come to a stop when one would expect numbers to be higher. There are other bits of similar evidence. What evidence is there for that situation from the raptors groups or others?

There is a great deal of circumstantial evidence, although I think that it is also scientific. If, in a suitable habitat, you have the absence of a species that is adapted to that habitat and should be there and you know that it is in adjoining areas not too far away, that is an indicator of persecution. The corpses and instances that are discovered are the tip of the iceberg. The figure of more than 50 golden eagles killed annually in Scotland is an accurate estimate that comes from several different directions, including statistical analysis.

I touched on peregrines a moment ago. Just two days ago, I got hold of information from south-east Scotland, and as in quite a number of previous years there is a presence or absence issue there as well. A minority of the peregrine territories in that area are on grouse moors, but about half of them are unoccupied. It goes back to the extent to which the evidence is circumstantial or anecdotal, and in cases in which there is hard evidence, it goes back to persistent killing. The difficulty is that there is lots of circumstantial evidence—I gather that the national wildlife crime unit would like to know about such evidence so that it can build up a picture—but there is little evidence in the form of corpses.

If you do not mind my speaking for a minute or two longer, I will give an example that I heard not too long ago. Because more attention is being paid to poisoning, the people who carry it out are being more careful. I have heard of a technique that involves putting out clean and unpoisoned carcases for a time—perhaps two weeks or so. Because of the risk of being caught, the person, at the end of the two weeks, will put out poisoned carcases late in the day and go round fairly early the next morning to remove the evidence. The poison may have killed some foxes overnight, but it might also kill ravens, buzzards or golden eagles in the morning. You can see what I am getting at, which is the difficulty of uncovering evidence in that sort of scenario.

There is a scientific, statistical way of arriving at certain broad conclusions about the absence of species where we would expect to find them, but your members are out and about in the field all the time. Are they coming across traps or birds on their travels, or coming across carcases that perhaps end up on Dr Thompson’s slab in the lab?

In a few cases, but I believe that most carcases are discovered by walkers in the countryside rather than by amateur conservationists, if I can put it like that. Again, it boils down to the circumstantial side. There is another factor. We find that, if there is a change of gamekeeper, things can get better or they can get worse. Now that is strong circumstantial evidence. To put the matter in perspective, in many places where there is raptor persecution, it has always been bad. In recent years, some estates have got better and others have got worse. That takes us back to the scorched earth scenario. However, the direct, physical evidence is so difficult to recover.

Just moving on a bit further, but in a slightly different way, the argument is made that, if licences to take buzzards were readily available—part of the argument is around the release of hand-reared pheasant and red-legged partridge—the incidence of poisoning would decline. What is your general view of licensing people to take buzzards?

The argument that things would decline if there were licences is rather like somebody saying, “If you allow us to do a bit of shoplifting, we won’t do any more housebreaking.” That is my answer.

At present, the licensing issue is particularly focused on buzzards in relation to reared and released pheasants. Buzzards are to some extent predators of pheasants, obviously, but they are being hyped up as a great problem. We only have to drive along some country roads to see what the problem is for pheasants—we see them squashed on the road. I do not think that we have evidence that buzzards cause serious damage, so I do not think that licensing the control of buzzards is justified. There would be all sorts of practical problems.

Game bird management of that sort has some benefits, for example through the planting of game crops,, but a grey area about which knowledge is lacking is the impact of large numbers of non-native game birds on natural wildlife. I understand that no studies have been undertaken on the competitive effect of pheasants and red-legged partridges vis-à-vis native wildlife. I could go on, but I do not want to. When I put together quite a lot of threads, I see no justification for the licensing that you mention.

Ravens are a slightly different kettle of fish, because a farming issue is involved. One might be able to attribute to ravens more solid evidence of damage, although that might be hyped up, too. For game bird management, I see no justification for licensed control of otherwise protected species.

It helps to have your position. Part of the argument rests on classing pheasant and red-legged partridge as livestock. I am interested in whether Professor Reid has a view on that.

Not in detail, I am afraid.

That answer is splendid—thank you very much.

In the same way as Mr Peacock just led Mr Stirling-Aird through his evidence, I will ask Dr Thompson and Professor Reid—or Mr Stirling-Aird—for a view. Mr Stirling-Aird said that the 50 missing golden eagles were an indicator of persecution and that golden eagles were killed annually. I suggest that they have died annually but that the figures do not necessarily indicate persecution. As Dr Thompson said, many buzzards that are delivered to him have died of natural causes—of hunger. Food is limited—otherwise, the animals would not take the baits that it is alleged that they are being given. They would not touch something unless it was natural. Hungry animals out there are dying from natural causes. Do you accept that that causes the death of many eagles?

Yes.

The agents that are used to poison animals need to be considered. The ideal poison operates such that the animal consumes it and goes 10 miles away to die or it causes the animal’s body to explode after consumption, so that nobody realises that the poison is there. The poison that is commonly used is carbofuran, which tends to kill straight away. The animal dies where it ate the carbofuran. Just as the bill says that snares should be checked every 24 hours, I suspect that the problem is that people in some areas check for and remove poisoned animals, so the evidence is removed. When carbofuran is found, it must have been locally administered.

I take John Scott’s point that some animals die of natural causes. Finding that out is the job of pathologists, who look at dead bodies that are brought in.

Of the 20 or so buzzards that you are given annually, how many have died of natural causes?

I would say that probably 15 would have died of natural causes.

Is it unreasonable to extrapolate that, of the 50 golden eagles that are missing, perhaps three quarters—37.5—might have died of natural causes, given weakness and our harsh winters?

Among the five buzzards out of the 20, three would have been shot and two would have been poisoned.

A mortality rate of 25 per cent is quite high.

It is quite high—it is significant. If that were the level among birds such as the eagle, which lives for a long time, that would be a concern.

I must answer John Scott’s point.

I am interested in teasing out everybody’s views.

13:15

There will obviously be some mortality—some young golden eagles will die because they are incompetent birds. There may be a lower mortality if there is man-made killing, as natural mortality may be a bit lower in compensation. However, we know that some golden eagles have been poisoned. A key question is why, in productive habitats in the eastern Highlands, the number of occupied golden eagle ranges has been going down when the conditions are ideal. If the number is going down, it is because birds have been killed.

John Scott said that there must be a lack of food if the raptors take the poisoned bait. I assume that I would be correct in thinking that, as predators, raptors are also scavengers and therefore likely to take a dead bit of bait, whether or not an ample supply of live bunnies is wandering the fields.

Yes. That was the benefit of wolves in the countryside. I do not mean to be facetious but, for example, it was said that, when a wolf killed, 50 per cent of the carcase would not be eaten by the wolf—scavengers would be there. Golden eagles and others have likely adapted to depend on carrion, so as partial carrion feeders they, buzzards and red kites will be particularly vulnerable.

I have a couple of quick final questions on the welfare issues that arise from shooting deer. Does the BVA believe that any welfare issues arise out of the practice of shooting deer? Secondly, why should somebody have to be competent to shoot deer rather than any other animal?

The deer is a large animal. People shoot it over a distance and with a very dangerous weapon. I would therefore expect the people who do that to be well trained. There is only a certain number of positions from which someone can get an effective kill. It is not something that I could necessarily do. I have killed lots of animals at close range, with captive bolts, a variety of pistols and so forth, but I would not like to walk out and be told to shoot a deer. The provision on training is reasonable.

I had the unfortunate experience of having to examine a cow that was shot on the Perth to Stirling railway line. The police had come out to do the job—they put four bullets in its head and managed to miss its brain because they were shooting it in the wrong place. A deer shot in the heart would have been killed straight away. That is a good example of the importance of training people to shoot things properly.

I have a question of clarification on the issue of competence. Professor Reid, you said that a register should require greater parliamentary scrutiny than the negative resolution procedure. What procedure would you want it to go through?

It is a big policy decision to move from the current situation to one in which everybody who hunts deer must have proof of competence, with all the issues of standards, appeals, duration of licence and so on. The first time that the register is introduced, it should perhaps go through under affirmative resolution procedure rather than our running the risk of it going through on the nod when lots of other matters are coming before this committee and the Subordinate Legislation Committee. I do not think that affirmative resolution procedure would be justified every time that the register was adjusted, but it seems to be a big policy decision that the heart of the bill does not actually answer. Making the step should require more scrutiny than just a negative resolution process.

Thank you. I think that we have exhausted our questions. I thank the witnesses for their attendance. If they have any further information that has arisen from what has been said today, we would be grateful if they could provide it to the clerks as soon as possible.

That concludes the public part of the meeting; I thank everyone for their attendance.

13:19 Meeting continued in private until 13:20.