Wildlife and Natural Environment (Scotland) Bill: Stage 2
We come to our next item of business, which is consideration of amendments at stage 2 of the Wildlife and Natural Environment (Scotland) Bill. Members should have with them their copies of the bill, the marshalled list of amendments and the groupings.
The Minister for Environment and Climate Change will remain with us for this item, and I welcome the officials who have joined her for this part of the meeting. I remind members that officials cannot participate in the debate.
Sections 1 and 2 agreed to.
Section 3—Protection of game birds etc and prevention of poaching
The first group concerns causing or permitting certain offences under the Wildlife and Countryside Act 1981. Amendment 45, in the name of Peter Peacock, is grouped with amendments 51 and 57.
Amendment 45 arises from concerns that the police expressed in evidence that there is a gap in the provisions that would help to secure convictions against people who persecute raptors. The amendment is an attempt to help to secure such convictions even if those concerned do not actually handle poisons, traps or guns but sit behind the people who do the dirty work and give tacit approval to it. It is designed in part to create a pressure in the estate management system to ensure that it is explicit that persecution of birds is unacceptable, and to communicate that fact to the people who work on the ground.
One such person is the gamekeeper who was convicted in Karen Gillon’s constituency last month. He made it clear that he persecuted birds because he thought that he was pleasing the landowner or manager concerned. Amendment 45 would help to put pressure on the system to make it clear to such people that that was not the case and that those above the gamekeeper—as it was in that instance—could be held liable in certain circumstances.
In thinking through amendment 45, it has become clear to me that the vicarious liability amendment that the minister intends to bring forward might cover the same ground; I hope that the minister can clarify that. I also understand that the Government might believe that the terms of my amendment are already covered in other enactments. If that is the case, it would be good to have that on the record, to ensure that that is understood by a wider audience.
Amendment 51 is consequential on amendment 45. I am more than happy to support amendment 57, in the name of Liam McArthur, which covers a separate point.
I move amendment 45.
Before I speak to amendment 57, I want to register a little disappointment about the late publication of the Government’s response to our stage 1 report. In the stage 1 debate, I welcomed the approach that ministers and officials have taken with regard to the bill, but the delay in publication of the response to the report was a little unhelpful when we were lodging amendments.
Peter Peacock has set out the background to the amendments in the group. I believe that he has correctly anticipated the minister’s response to his amendments but not, perhaps, to mine.
Amendment 57 would extend the offence of knowingly causing or permitting certain offences to the offences in sections 6, 15A and 18 of the Wildlife and Countryside Act 1981. As members might be aware, those sections do not have such a provision attached, and my amendment seeks to address that inconsistency to the approach to different offences.
I am aware that the Game and Wildlife Conservation Trust has concerns about the potential impact of the sale of dead wild game birds that are taken outside the season, and it might be that amendment 57 needs some refinement. However, there seems to be a case for ensuring that there is consistency and that, as Peter Peacock said, all appropriate deterrents are in place.
I will deal with Peter Peacock’s amendments 45 and 51 first. I am not sure that they would add to the current provisions in the 1981 act, because the sections to which Peter Peacock is proposing to add already contain offences of knowingly causing or permitting certain offences. The mention of the landowner or the land manager, and the requirement for the offence to have happened on the land that is owned by that owner or managed by that manager, might send the message that Peter Peacock is seeking to convey, but I do not believe that it will do anything to increase prosecutions or improve clarity in this area of law.
The effect of leaving out “knowingly” from the cause and permit offences is hard to understand, because it suggests some kind of strict liability, which is a specific legal notion. However, how that would work is not clear enough for this to be the right way forward. Perhaps the aim was to create something similar to the vicarious liability proposal.
However, there are important differences between the two concepts. Even unknowingly causing or permitting certain offences suggests that there must be some evidence of an act or an omission on the part of the accused. Vicarious liability does not need that. It is based on the proposition that employers and managers must take responsibility for the actions of their employers and contractors. Our proposals for vicarious liability will also give the person who is accused a chance to show that he was unaware of the offence and had carried out all reasonable steps to prevent it from happening. There is no such defence in Mr Peacock’s amendments 45 and 51, which is another important difference. A similar problem arises when the offences are compared with the more usual “knowingly” cause and permit offence.
The offences in Liam McArthur’s amendment 57 are comparable with other offences in the 1981 act. I would therefore be happy to discuss his proposals with him in more detail—we have to be sure about all new offences that we create. For example, the offence that is proposed for section 18 of the 1981 act might be wider than we would agree is fair. We therefore have some issues with amendment 57 in its current form. However, in principle, it merits discussion for stage 3.
I oppose all three amendments in the group but, as I have indicated, I would consider working with Liam McArthur at stage 3. Peter Peacock may be content with what I have said about vicarious liability.
I think that everybody knows the intention here: it is to get at the informal pressures that may exist. They certainly do exist on certain estates, and they are causing problems. I accept the difficulty over the word “knowingly”—if one knowingly does something, one is obviously committing an offence. Managers may officially say, “I don’t want you to do this,” but they may also create an informal pressure to do it. In my opening remarks, I referred to a situation involving a gamekeeper, and that situation represents a problem that actually exists.
I take the point that the provisions on vicarious liability are probably stronger. I will therefore seek to withdraw amendment 45, and I will wait and see what the provisions on vicarious liability actually say before we get to stage 3. I am grateful for what the minister said about other provisions in other acts, which has helped to clarify matters.
Amendment 45, by agreement, withdrawn.
We move to a group of amendments on catching up for breeding purposes: species covered and period allowed. Amendment 1, in the name of the minister, is grouped with amendments 2, 19, 3, 22, 49 and 50.
I will deal first with Government amendments 1, 2 and 3. Gamekeepers are currently permitted to catch up game birds for breeding purposes in the open season. We are aware that the practice is useful and that, at times, an extension to the period in which it is allowed would be helpful. We therefore propose that catching up be legal for the first 14 days of the close season. Following the committee’s recommendation, I have lodged an amendment to add black grouse to the list of birds that may be caught up and, following the proposed repeal of the game acts, I have also lodged a minor amendment to ensure that cages, traps and nets can continue to be used to catch up grouse, mallard, partridge and pheasant.
I am not in favour of the amendments that have been lodged by Karen Gillon and supported by John Scott—amendments 19, 22, 49 and 50. I acknowledge that the impetus is to ensure flexibility and practicality for sporting management, and that the catching-up period is a busy time for gamekeepers. However, we are already proposing to extend the period by 14 days to provide greater opportunity. I think that that is a reasonable extension for what is the first change in law to allow such a practice outwith the open season.
I move amendment 1.
Karen Gillon will speak to amendment 19 and the other amendments in the group.
Members will be aware that this issue was raised with us when we undertook a visit to Langholm. The fear was expressed to us that 14 days was unnecessarily restrictive in relation to catching up. I feel that 28 days—as specified in my four amendments—would allow the necessary flexibility, and I am disappointed that the minister is not prepared to accept that.
On the minister’s amendments, RSPB Scotland has raised concerns over the inclusion of mallards in the provisions. Mallards begin breeding in February, and their inclusion in the provisions may lead to their being caught up within the breeding season. RSPB Scotland has expressed similar concerns about the inclusion of black grouse, which is a red-listed species. The minister could perhaps come back to that in her summing up.
11:45
I support Karen Gillon’s amendment 19, which seeks to extend the catching-up period from 14 days to 28 days. Given that the minister has graciously accepted the concept of an extension, I suggest that for practicality, a longer period would help. Just as the current weather is unseasonal, we can have snow in the close season too, which makes it virtually impossible in early spring to operate many of the traps for catching-up purposes. There is no hidden agenda; the amendment simply seeks to facilitate the process. The minister might even consider extending the period to 21 days as a compromise at stage 3.
As Karen Gillon and John Scott have indicated, the committee heard evidence at stage 1 to suggest that although the 14-day period appears to address a degree of ambiguity in the current circumstances, it is perhaps not sufficient. The committee felt that 28 days was a fairer compromise.
Latterly, RSPB Scotland has raised concerns with us that the period would in some sense be an informal extension of the hunting season. There is a principle that must be addressed. Any period that we set is likely to be arbitrary, but there is a concern that an extension to 14 days may not go far enough.
John Scott has indicated a potential compromise, and I hope that we can return to the issue between now and stage 3 to reach some sort of agreement.
My reaction is simply that the period is currently zero, and we are talking about the number of days by which to extend it. We thought that 14 days was a sufficient extension from what is effectively no days at present, as that would allow some leeway with regard to the current situation.
We can certainly have a look at how many days it might be useful to have, although I caution members against getting into a situation in which they are upping the ante. If we extend the period to 28 days, people may come back and say that it should be even longer. We have to decide clearly on the most appropriate period, rather than any of us just plucking numbers out of the air. Perhaps we need to discuss what is realistic set against the current position, which is effectively zero.
On black grouse, our amendment follows the committee’s recommendation; we were doing what we understood the committee wanted us to do. It would be useful to know whether that recommendation is changing or has changed, and what is behind it. I am not clear about whether there is a specific issue that needs to be re-examined that changes the committee’s recommendation.
Very late yesterday we received more information from RSPB Scotland, in which it raised concerns. It would be useful if we could come back to the issue at stage 3. I would be happy to discuss the matter with the minister ahead of stage 3.
Right. I have not seen that information.
No—I got it very late yesterday as, I think, Liam McArthur did.
At present the amendment on black grouse complies with the committee’s recommendation.
Amendment 1 agreed to.
Amendment 2 moved—[Roseanna Cunningham]—and agreed to.
Amendment 19 not moved.
Amendment 3 moved—[Roseanna Cunningham].
The question is, that amendment 3 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Scott, John (Ayr) (Con)
Watt, Maureen (North East Scotland) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Against
Gillon, Karen (Clydesdale) (Lab)
McArthur, Liam (Orkney) (LD)
Abstentions
Murray, Elaine (Dumfries) (Lab)
The result of the division is: For 4, Against 2, Abstentions 1.
Amendment 3 agreed to.
The next group is on removal of game birds from list of birds allowed to be killed or taken outside close season: consultation and procedure. Amendment 4, in the name of the minister, is grouped with amendment 20.
Amendment 1 seeks to follow the committee’s recommendation in its stage 1 report and change from negative to affirmative the procedure for orders to remove game birds from schedule 2 of the 1981 act. Although I accept the intention behind John Scott’s amendment 20—the Government would, of course, consult before removing a game bird from schedule 2—I have to point out that the 1981 act contains a similar provision relating to such a removal. Section 26(4) of the 1981 act already provides for
“any ... person affected”
to be given
“an opportunity to submit objections or representations”.
That seems to me to cover everything that is needed; indeed, it is, if anything, wider than John Scott’s proposal. Given that there are also provisions for consulting advisory bodies and causing a public inquiry to be held, I do not think that amendment 20 is required.
I move amendment 4.
I thank the minister for considering my amendment and accepting the intention behind it.
I suppose that I am raising concerns that have been expressed by the shooting industry, which would also wish to be consulted. I am not saying that a sin of omission has necessarily been committed but, if it has, it could be rectified by ensuring that the industry is consulted before game birds are taken out of schedule 2.
I see no difficulty with that. After all, as relevant persons, the shooting bodies would be caught by the provisions in the 1981 act and would therefore be consulted.
Amendment 4 agreed to.
Amendment 20 not moved.
The next group is on the point at which game birds cease to be livestock. Amendment 46, in the name of Peter Peacock, is the only amendment in the group.
I have lodged amendment 46 to clarify the circumstances in which a licence to kill, for example, a buzzard might or might not be granted. I have been concerned by the growing pressure in some quarters to grant licences to kill protected species on the basis of a potential ambiguity surrounding what can happen in the vicinity of a containment pen when a bird is not contained but is still regarded as livestock. It is argued that such a move is to protect birds that are raised in their thousands for shooting. Although that is perfectly legitimate, I do not find it legitimate to argue that raptors that are, quite naturally, attracted to the new feed source should be killed. Indeed, I find the arguments for killing protected species in order to protect unprotected species faintly ridiculous, and amendment 46 seeks to exclude from the definition of livestock the reared species that are mentioned in the amendment once they are no longer in secure pens.
I know that the Government is considering guidance to tighten up or make clearer the circumstances in which licences may or may not be granted. Although I have been concerned that as a result of the pressure to relax the current rules such a relaxation was being signalled, I have been somewhat reassured by the minister’s acknowledgement in evidence of the need to retain a very high hurdle with regard to the issuing of such licences.
However, amendment 46 would put it beyond doubt that a licence would never be granted in certain circumstances. If people who are rearing birds want to protect them fully, the option of getting a licence to kill a raptor in the circumstances that I have described would not be open to them. I guess that the implication of that is that pens would have to be enclosed to protect reared birds because no licence would be available to kill a raptor. Alternatively, some losses among the thousands of reared birds would have to be accepted.
I move amendment 46.
I regret to say that I fundamentally disagree with Peter Peacock; I do not think that he is right. The Wildlife and Countryside Act 1981 neatly deals with the problem in that after game birds leave rearing pens, they become livestock on a particular date: for example, pheasants become livestock on 1 October. Prior to that they are obviously utterly dependent on the same environment, and whether they are on one side of the wire or the other is irrelevant. They are dependent and therefore should not be treated in the way that Peter Peacock suggests until the appropriate date, which is currently dealt with under the 1981 act.
I disagree with John Scott but agree with Peter Peacock. If someone is going to introduce large numbers of a prey species into an environment, predators will come—that is just part of how things work. It is therefore not acceptable to be prepared to slaughter protected species because they happen to be predators. Unfortunately, the shooting industry will have to accept that there will be losses associated with large numbers of prey species being released at certain times—that is just how it is. Obviously, it would be different if we got to the stage at which millions of buzzards were around, but that is not the case. The buzzard population of Scotland is only beginning to recover after the slaughter of those animals over many decades. I am certainly of the opinion that they should continue to be protected and that there should not be the possibility of allowing them to be killed because they are behaving as predators behave.
I certainly sympathise with the sentiment behind amendment 46. As Peter Peacock indicated, the committee thought long and hard about whether the hurdle needs to be raised further. I think that we gained reassurance on that from what the minister said in her evidence. I am bound to say that I can see the wording of amendment 46 creating more serious difficulties in trying to address a very legitimate concern. However, Peter Peacock may well have lodged the amendment in order to get on record the sort of assurances that the committee has sought throughout, and to give a further airing to the issue.
I have always come at this issue with a fairly open mind. However, having seen photos that have been sent to me by constituents in recent weeks of some of the activities that have been taking place in my constituency, I am simply appalled. People have no right just to go about poisoning birds because they do not fit with their business. That is not acceptable and it cannot be allowed to continue. If, as part of your business, you release small birds into the bird population and other big birds come and kill them, then that is life—that is what big birds such as buzzards do. You just have to accept that and manage your business accordingly, but that does not give you the right to poison, shoot or otherwise destroy other birds.
We as a Parliament have said that that is unacceptable. If we have evidence that that is continuing to happen and that the legislation that is in place is not working, we must do something about it; otherwise, we just have to say, “It’s okay. Just continue to kill these birds. We don’t really care.” However, right now the laws that we have are not working; people are simply ignoring them or the police are unable to enforce them. The current situation is not acceptable. It is not acceptable to me, and I am not one of the most hard-line animal-rights members of this committee. If I have come round to this position, things are really in a bad way. We need to get things moving quickly because the current situation is not acceptable.
12:00
The arguments have been laid out fairly clearly, so I will not rehash them. I simply put on record my sympathy for Peter Peacock’s argument, although I accept Liam McArthur’s point that the wording may require some alteration.
The whole issue arises because the provision in the 1981 act was simply a provision to issue a licence. There was no subsequent guidance or subordinate legislation on the issue—nothing went along with the power to issue a licence.
On the one hand, there are groups of people who say, “You can issue licences. What are the criteria?”, and on the other, there are groups of people who do not want any licence to be issued, even though their issuing is statutorily provided for. We are in a situation in which such debate takes place.
Although poisoning, to which Karen Gillon referred, is not central to consideration of amendment 46, it provides the background to why the debate takes the turn that it does. Many will see the issuing of licences before poisoning has been dealt with as a reward for bad behaviour. Others will argue that the issuing of licences will end the poisoning of birds. The two discussions intermingle but, arguably, the present debate is not about poisoning. It is about a request for a legitimate licence—it is legitimate in that its issuing is provided for by legislation that is on the statute book.
Amendment 46 addresses a highly controversial and difficult issue. As yet, the Government has not issued any licences for that purpose, nor did any previous Scottish Government. I am not conscious that any Westminster Government has issued such a licence either, notwithstanding the fact that such provision remains on the statute book.
A number of discussions have been held with interested parties on both sides of the argument, and it is clear that there are strongly held views on both sides. On the one hand, the shooting sector points to the huge input to the economy that its work makes. According to that sector, predation is a cost burden that is similar to the burden on any farmer who loses stock. Poults are not worth a great deal, but poults that reach maturity are worth quite a lot of money—£30 to £40 each. Given the number of people who go out shooting and the size of the bags, it is evident how much income is derived from that. Some groups argue that they can lose 50 per cent or more of their stock through repeated attacks. A little more work needs to be done, because we are not talking about the loss of just one or two birds. That is one side of the argument.
The other side of the argument, as most people recognise, is that the shooting industry is not doing enough in the way of deterrence and protection measures, and that it is simply not right to contemplate killing native species to protect a non-native species, hundreds of thousands of which are reared and released into the environment. Those arguments have been rehearsed by the committee.
The difficulty with amendment 46 is that, in attempting to find a way through those arguments, it risks creating a bigger problem, because it has some flaws in it. Liam McArthur identified that. Most keepers would argue than an open-topped pen is an absolute necessity for encouraging the young birds to fly while still giving them the safety of a place to return to.
Another point that needs to be kept on board is that a lot of pheasant release pens are pretty big—they might be half an acre or more in size. It is clear that there will be practical difficulties in covering pens of that size. Many of the pens contain trees, because that provides cover and roosts. It is hard to see how such an area could be roofed. It is also impractical to require mallards to be in some form of secure housing because, as might be expected, they are reared in ponds.
There are practical difficulties with what is being proposed, but I will be interested in hearing the committee’s views on the subject. I am not sure that amendment 46 would help because, if it is agreed to, it would not be possible for licensing authorities to take any balanced view of different interests in the future if people felt that the existing statute should remain. The amendment is also wider than necessary if the aim is to give birds more protection when a licence is being considered. It would also affect animal licence and bird and animal offences.
On those grounds, I oppose amendment 46, but I acknowledge that we need to have a wider debate, which might be better held in the chamber.
My understanding is that discussions have taken place between the Government and the RSPB about defining when animals, particularly birds, are livestock, and that an agreement has been reached.
Those discussions were not specifically with the RSPB. We consult and discuss with all stakeholders.
Yes; the RSPB and others.
No final conclusion or definition has arisen from those discussions. I am not quite sure what you have heard.
I oppose amendment 46 on the specific ground that it contains some flaws, but I acknowledge that there is a wider discussion to be had. A statutory provision exists that allows us to grant licences and, in those circumstances, it is not unreasonable for people to ask in what other circumstances a licence would be granted. That is why we have the discussions that we have.
The discussion has been useful and I am grateful for the support that colleagues have expressed. I disagree with John Scott in principle, so we will just have to take a different view about it.
I accept that there are limitations with the amendment’s wording and that it could have unintended consequences. I am happy to withdraw the amendment, with the committee’s leave, and I will consider it and have further discussion and communication with the minister and her office before stage 3.
Amendment 46, by agreement, withdrawn
Section 3, as amended, agreed to.
After section 3
The next group is on the recording of information about the number of wild birds that are lawfully killed or taken. Amendment 21, in the name of Liam McArthur, is grouped with amendment 47.
I am happy to speak to amendment 21, but I confess that amendment 47, in Bill Wilson’s name, is perhaps more a reflection of what I wanted to achieve, not least in that it acknowledges the fact that wild birds might be taken or killed and not simply shot.
The amendments are a response to the stage 1 evidence that suggested that better record keeping was necessary to establish what is happening with various wild bird species and to provide a rebuttal to some of the wilder claims about practices on shooting estates. I am aware that the Game and Wildlife Conservation Trust has expressed concerns about the amendments, but they seem to be based on the fact that accurate records are already kept, that any figures would need to be set in the context of the overall populations of respective wild birds, and that compulsory record keeping would be costly. I have no problem with the case for contextualising any figures, but I cannot see how the first and last of those arguments are compatible. I will therefore listen with interest to what the minister says, but the principle of what Bill Wilson and I seek to achieve is sound and should be pursued.
I move amendment 21.
It seems to me to be good conservation practice to know the size of a yield that is taken from a population. I do not imagine that any of our species will go the way of the passenger-pigeon, but we should nonetheless know the yield. That is ultimately to the benefit of estates. If we want to keep a sustainable yield and secure the economic future of estates, we need to know what size of the population has been shot and whether it can maintain that level of shooting.
I find it hard to imagine that keeping records would be difficult. I am sure that all estates keep game bag records. Surely that is how they convince people to come to them to shoot—they can say how many birds people will have a chance of shooting. Gathering the data cannot be too difficult, albeit that we should have the data anonymised so that individual estates cannot be identified.
When we discussed the matter previously in the committee, I supported in principle what has been proposed but I am now rather more taken with the GWCT’s position. It has pointed out that what has been proposed would add an extra burden on Scottish Natural Heritage and estates. If I am in favour of one principle, it is that of not increasing the burden of regulation through the bill, given the burdens of regulation that already exist on almost all estates and landowners. Therefore, I think that the proposals are unnecessary.
In addition, under the voluntary wildlife estates scheme that was launched by the estates management group and others, what has been proposed will be done voluntarily. My position is that legislating in the area is not necessary. We should avoid further regulation.
I find it bizarre that we are arguing against something that is, it has been argued, already happening. If it is already happening, what is the problem with its being regulated? It does not seem to me that there would be a huge burden, and we would have records to prove what was happening. We could then monitor. Therefore, I would be happy to support either amendment. Bill Wilson’s amendment 47 is probably more comprehensive, so I urge members to support it.
There are two issues: the principle and the amendments. I think that I said during stage 1 that, in principle, we support the idea of developing a bag return system to gather data on mortality rates for quarry species. However, the amendments apply to more than just game or quarry species, although they may do so inadvertently. Therefore, they go further than is desirable.
Data relating to quarry species are an important element in developing adaptive management arrangements, particularly for birds such as geese—I think that Bill Wilson made that point. There are concerns about the conservation status of some species, such as the Greenland white-fronted goose, although other goose species such as greylags are present in growing numbers and can be a real problem for farmers in some areas. Liam McArthur probably has direct experience of that.
The concern about monitoring geese points to one of the main defects in both amendments. The approach of placing a duty on landowners, lessees or occupiers of land would not capture the significant numbers of wildfowl, including geese, that are shot on the foreshore, in which the Crown has an interest. It would not fall within the scope of the amendments. If we consider the principle, we will realise that the amendments would not quite do what was intended.
Both amendments are a bit vague about whom a duty would be placed on. It is not entirely clear whether the owner, the lessee, the occupier or all three would be required to submit a return. That lack of clarity is a bigger concern with respect to Bill Wilson’s amendment 47, which would create a new criminal offence. If we are talking about potential prosecutions, we must be absolutely clear about what is required of people. It is not clear how people could find out about the system that it appears is being proposed. The normal way in which to do such things is for the details to be set out in subordinate legislation. I appreciate that there may have been an unwitting omission in the drafting of the amendment, but I am advised that there would be problems in prosecuting any such offence under amendment 47 as drafted.
12:15
I note that the offence is set out as a strict liability offence. I am not sure whether that is what was intended. I would have expected a reasonable excuse defence; that is the appropriate defence for this kind of offence, given the due diligence or reasonable justification aspects of imposing such a criminal offence.
Our preferred approach would be to look for a scheme that places some sort of obligation on individual shooters to submit a bag return for birds that they take throughout the season. We would plan to open discussions with organisations such as the British Association for Shooting and Conservation and the Scottish Association of Country Sports with a view to developing a scheme. For example, with their co-operation, we could perhaps develop a non-statutory scheme.
The amendments in the group pursue a worthwhile cause, but they are the wrong approach at the wrong time. We oppose them.
I welcome the comments of colleagues and of the minister in accepting the principle. The recent conversion of John Scott apart, the committee felt the provision to be a commonsense one. I accept that there may be a need to broaden the scope of Bill Wilson’s amendment and mine to tighten up on where responsibility lies and to address other shortcomings. I hope that that can be done ahead of stage 3. The importance of keeping records and having the available data kept are essential to the adaptive management to which the minister referred. As I said, the data are also necessary for rebutting some of the wilder claims that are bandied about on what happens on shooting estates and elsewhere. I have some misgivings about the notion of a non-statutory scheme. Perhaps we can pick up on the idea between now and stage 3.
I seek leave to withdraw amendment 21.
Amendment 21, by agreement, withdrawn
Amendment 47 not moved.
Section 4 agreed to.
After section 4
The next group is on protection of wild birds: intervention by the Scottish ministers. Amendment 48, in the name of Peter Peacock, is the only amendment in the group.
I promise not to read out the amendment in its entirety—[Laughter.]
It would take ages.
Indeed.
My commitment and that of many other committee members throughout the passage of the bill has been to try to find provisions to bear down on and eliminate as far as possible the unacceptable practice of bird persecution—Karen Gillon referred to that—and in that regard I welcome the moves that the Government has offered to make on vicarious liability. It is a major step in the right direction. However, I am under no illusion about the difficulty of securing convictions—even with the new law. I hope that the new provision adds considerably to the system and thereby ensures that the practice that we all deplore comes to an end, but if we invest all our future hopes in it—I repeat that I welcome it—and attempts at prosecution show that conviction is difficult to secure, the new bit of the armoury that we have been trying to design will have gone from us. That is why I think there is a need for further provisions, which have the potential to affect the economic interests of those who may, in a pretty real way, be behind some of the practices that we all deplore.
I lodged amendment 48 to advance the debate on these policy issues and to set out a possible way forward. I want to make it clear that I do not regard amendment 48 as the final word on the matter. I have already noted a number of technical flaws in the drafting; I intended to delete two of them, but they remain. Members understand the time pressures at stage 2. Thankfully, Christmas will provide more opportunity to think and refine the amendment.
There is plenty of room in the drafting for the negotiation and refinement of what I am proposing today. My thinking on the matter has moved forward quite a lot over the past few weeks. I have listened carefully to what has been said about the concerns that I expressed a few weeks ago. I started with a belief that all estates should come under a licensing system, but I have heard arguments that that would be unnecessary and disproportionate as it would capture everybody—even those who are behaving in an exemplary fashion. Furthermore, it would inevitably imply more bureaucracy than might be necessary.
I have listened to concerns about the new scheme that the Scottish Rural Property and Business Association has been promoting with regard to estate management. I warmly welcome that scheme—it represents a significant step in the right direction—although there was concern that the potential to use it as a statutory code of practice might bring about the opposite effect to that which was desired. I have listened to those concerns, too.
Amendment 48 seeks to avoid the issues and concerns and tries to focus on where there might be a problem rather than propose a general licensing system. It is a lengthy and complex amendment, but the principles behind it seem entirely straightforward. It provides for a form of staged intervention. In essence, when a minister has reasonable cause to believe that the practices that are set out in the amendment are inimical to the intentions of the bill and of previous acts of Parliaments, and if those practices continue to occur—the minister having perhaps set out guidance as to how they might come to such a judgment—they will have to notify those who are involved with the management of the land of their concerns. The minister would have to set out the activity that they may potentially regulate and invite those concerned with the management of the land to say what actions they propose to take to satisfy the minister that their concerns can be addressed. If the minister is satisfied that the proposed actions are satisfactory, the matter could end there and no further action need necessarily be taken; if the minister is not convinced about the proposed actions, they can make a regulation of activity order, which would require a management plan for how the landowners are to respond.
I propose that SNH be given responsibility for monitoring the implementation of the management plan. If the management plan is implemented satisfactorily and in such a way as to remove the original issues that ministers had reasonable cause to be concerned about, the order could be revoked and no further action would ensue. However, if the monitoring of the management plan resulted in the concerns continuing and in the sought outcomes not being achieved, the minister could revoke the rights of owners in certain respects. That, to all intents and purposes, would mean sporting rights on the land. I envisage that an appeal regarding any such decision, which would be significant, could be made to the Scottish Land Court.
Amendment 48 is not about creating another offence—we are coming close to having enough of those. The approach is different from one that would end up with a criminal offence. In principle, it mirrors the provisions relating to deer management, in the sense that there is a staged intervention in deer management involving SNH, albeit in a different way from what I envisage under amendment 48.
I believe that the approach that I have set out could provide a way forward. I do not think that any landowner or estate that is behaving entirely properly would have anything to fear from the proposals, which seek to isolate those cases where we understand that there could be a continuing problem and to set in place safeguards to ensure that there is a staged process that allows matters to be addressed satisfactorily.
I will listen carefully to what the minister has to say about the amendment. In view of its flaws, which I have spotted myself, I do not intend to push it to a vote today; I seek to refine it in the light of the debate and discussion that I hope the committee will now have.
I move amendment 48.
I had concerns about the notion of a licensing scheme—that is partly in keeping with evidence that we received from SNH at stage 1. More crucial was the scheme’s appearing not to distinguish between estates, whatever their track record, principally in relation to wildlife crime. This lengthy amendment heeds some of those concerns and seeks to adopt a different approach. Although the wording needs modifying—I can testify to Peter Peacock’s attempts to amend the wording at the 11th hour—I hope that the minister will acknowledge that amendment 48 anticipates the concerns that were expressed in the Government’s response, which I shared, and seeks to find a more workable and proportionate approach to introducing a further sanction, which will help to drive down the raptor persecution that we all abhor and find all too common.
It is probably fair to say that an overwhelming majority of estates behave responsibly, but it is clear that some estates consistently break the law. My worry about a voluntary code is that estates that behave well will obey it because they would behave well anyway and estates that act illegally will continue to do so. I therefore have much sympathy for the principle behind amendment 48, albeit that it has wording problems. I look forward to hearing what the minister says. It is clear that action such as the proposed amendment on vicarious liability will move things forward, but an approach such as Peter Peacock suggests will be helpful, if it is practicable.
I declare an interest as a farmer and landowner. Members will not be surprised to hear that I am not in favour of amendment 48, which would introduce a further unnecessary burden of regulation.
I categorically share the view of Liam McArthur and other members that raptor persecution should be brought to an end. We are in no dispute about that. I understand that the minister intends to lodge an amendment on vicarious liability. Estate licensing such as is proposed is not necessary, given the voluntary scheme that we have. I accept Bill Wilson’s point about honest men being honest anyway and the need to deal with the people whom we want to stop misbehaving. Perhaps—although I will not be in favour of it—the minister’s amendment will address that.
Amendment 48 must be the longest probing amendment in history, and Peter Peacock’s own demolition of its value precludes further comment in that regard. Suffice it to say that several interested bodies have put it to me that the proposed approach would significantly discourage investment in land, particularly sporting estates, in Scotland because the sheer burden of regulation would be so onerous. Trust me; I am a farmer and landowner and I am only too well aware of the burden of regulation. It is not sensible or necessary to introduce an additional burden.
When four of my constituents died in a gas explosion in Larkhall 10 years ago, people told me that we could not change the law on corporate culpable homicide because the burden of regulation would discourage companies from investing in Scotland. We changed the law on corporate manslaughter and companies still come to Scotland and invest here.
If we change the law on the protection of wild birds, as is proposed, companies will still want to invest in Scotland, because this is a good place in which to invest. Good companies will still want to bring their business to Scotland, to get the benefits of the Scottish landscape, climate and weather and of our grouse moors, shooting estates and gamekeepers. Only Scotland can bring those benefits. Good companies will want what we have, regardless of the regulation. People talk a lot of nonsense when they do not want us to do something. We need to have the courage to do the right thing.
12:30
I will take a few moments to deal with some of the issues that have been raised, because they are important and I do not want to gloss over everything.
I acknowledge that Peter Peacock has attempted to address one of our principal objections to the proposal that was discussed during stage 1, in so far as amendment 48 would not impact on all shooting businesses and is more tightly focused on estates in relation to which there is suspicion of wrongdoing. We are, nevertheless, still of the view that the proposal does not represent the right approach, and we would prefer to go forward with the robust legal framework that will be in place if our amendments on vicarious criminal liability are agreed to. Although some of those who have commented on our plans said that vicarious criminal liability is a novel concept, it is, in fact, well established in law. It has been in existence for quite a few years; it was reinstated in the Criminal Justice and Licensing (Scotland) Act 2010 earlier in the year and it is well understood, certainly in civil law. By contrast, Peter Peacock’s proposal contains brand new concepts that might be made to work in due course, but only after a number of protracted legal challenges are overcome. In a sense, this is an example of how much care we have to take to get things right.
It is clear that, in some cases, the proposed scheme would lead to a serious interference with property rights. In effect, it is designed to do that. Serious interference in property rights can be justified—we do it all the time under planning law—but any interference must be proportionate and the necessary safeguards must be in place. Whether the proposed scheme represents such a proportionate response to the problem of raptor persecution is an open question. Ultimately, it would be one for the courts, and I am 100 per cent certain that that is where it would end up. I suspect that Peter Peacock agrees with that.
I also notice that, under the proposal, there is no right of appeal until the very end of the process. I do not know whether Peter Peacock has considered that. The scheme also proposes the revocation of rights as a sanction. Presumably that refers to the right to take game. I think he mentioned that it relates to the shooting rights as a whole, but I do not know whether it would have to be the whole of the shooting rights or whether it could be part of them. There is a lack of specification. Does the revocation apply to the area of land or to the landowner? Would it be possible for the rights to be taken back by a purchaser of the land or someone who inherited it? When such a big change in the law is proposed, we have to work hard to see how it would operate in practice.
We believe that vicarious liability will be more straightforward to prosecute than what is suggested in the amendment. An important difference is that at the centre of the vicarious liability concept will be the need for the Crown to prove beyond reasonable doubt that an offence has taken place. Under the scheme in the amendment, proceedings that might lead to a severe restriction could begin solely on the basis of concerns on the part of Government officials. I have scribbled on my notes that it would be a sort of sus law for estates. I am not sure whether that is what Peter Peacock intended, but, in effect, that is what the amendment delivers.
We can identify a number of other difficulties with the proposal. Landowners would claim that they are vulnerable to mischief making. A dead bird thrown on to their land could trigger the process. At present, under criminal prosecution, the investigation is rather more rigorous than that. They would also claim that activities for which they are not responsible on an area of their land could trigger the process—for example, if a paying guest misbehaves and shoots a protected species. That is a different relationship to the one that is envisaged under vicarious liability.
It is also likely to be difficult to identify everyone with an interest in any given area of land. Peter Peacock will acknowledge that, in some areas of Scotland, the sheer issue of land ownership can be a big question mark. Our experience suggests that, as well as the difficulties with identifying owners, there can be complex relationships of management and tenants, all of whom have an interest.
SNH told us that the role that is envisaged for it would place a difficult and heavy burden on the organisation when it is hard pressed. We are also dubious about subsection (9), which appears to compel ministers on the financing and resourcing of SNH. We could not accept that approach.
I have gone through a lot of detailed reasons why I oppose amendment 48 and I expect that Peter Peacock might have picked up some of them already, although he might not have thought about others. His suggestion is quite far reaching and would mean a significant change in how we do things at present. Both I and the Government think that if we are going to make such a far-reaching change, it deserves a different kind of scrutiny from that which we can give it as an amendment to another piece of legislation. That is why we prefer to proceed with the strong legal framework that is in place with the addition of vicarious liability and give initiatives such as the wildlife estate scheme a chance to succeed. That is not to say that we might not end up having this debate at some future point, but it would need to be undertaken in the full understanding of the complexity of what is proposed because of its far-reaching nature.
I invite Peter Peacock to wind up and, although I suspect I know his answer, to say whether he will press or withdraw his amendment.
Amendment 48 was lodged in a spirit of setting out a new proposition and beginning to get a feel for where people believe they stand. As I said, I accept that it is not the final word on the matter. Indeed, I anticipated a number of the minister’s points. It is helpful to get them on the record because I can now think about them a good deal more deeply—and I shall do so. It is my intention to keep pursuing the point, although I accept that there are different points of view.
I will pick up on some of the points that have been made in the debate. I am grateful for the support in principle that Liam McArthur indicated in that the proposal is more proportionate than that which we have sought before. Bill Wilson made a good point about the voluntary code, which I welcome, as I know he does. By definition, it is only those who know that they can or want to comply with the code who will volunteer. Therefore, there are still issues that the code does not cover.
I understand that John Scott is not in favour of amendment 48. I do not accept his point about the burden of regulation because it would apply only to those whom SNH has strong reason to believe are not obeying either the spirit or the letter of the law. It seems entirely right to place a burden on those people at that time, and SNH would be the appropriate agency to do it.
There are many honest people in Scotland—I include myself as one of them—who, notwithstanding that they are honest, are burdened by excessive regulation. Your proposal seems unnecessarily complicated and, as the minister said, the implications would be far reaching in this case.
With respect, it would become a burden on you only when you became dishonest, although I am not suggesting that you would.
No, you miss the point, which is that it becomes a burden when you have to think about it and factor it into everything you do. All regulation comes at a cost.
Again, with respect, I know that amendment 48 is long but if John Scott had read it to its conclusion he would have realised that it does not propose to create a burden on anybody until such point that there is real concern in the public interest that a burden requires to be placed on that person to try to sort out a situation unacceptable to us all. I do not accept John Scott’s point about the burden.
I explicitly reject the point about investment. Every time we talk about any regulation to protect the public interest, people say, “It will stop people investing in estates.” Frankly, if you want to invest in an estate in order not to obey the law I would rather not have you in Scotland. If you do obey the law there is absolutely nothing to fear from my proposal. So I do not accept that point.
I do not accept yours.
I understand that you do not accept it; we will just have to disagree. There is nothing new in that.
I listened carefully to what the minister said. I want to pursue my proposal and think about it a bit more. I had thought about her point about there being more appeals in the system. There is an old trick that old ministers used to perform—you create the perfect bill then you take things out so that you can put them back in when under pressure at a later stage. Members might detect that there is a similar approach to my amendment.
Given that the procedure would be used only in rare circumstances, I have thought about whether there may be a case for requiring parliamentary approval for some of the steps, to make the process clearer, more democratic and, therefore, more accountable in a variety of ways. The minister described how vicarious liability applies pressure to the system. By the same token, the very fact that a process exists means that no estate will want to get caught up in it. There will be strong incentives to avoid that. Indeed, the public opprobrium of getting to stage 1 of the process might be sufficient to deter people from many of the practices about which we are concerned.
Although I strongly support the concept of vicarious liability, I am under no illusions about how difficult it may be to secure prosecutions. It is worth having it on the statute book even if legal challenges occur, because the informal pressure that it applies will contribute to eliminating the problem that we face.
I will reflect seriously on the issue. However, for all the reasons that the minister and I have set out, I seek leave to withdraw the amendment.
Amendment 48, by agreement, withdrawn.
Section 5—Sale of live or dead wild birds, their eggs etc
Amendments 22, 49 and 50 not moved.
Section 5 agreed to.
After section 5
The next group is on reports on illegal killing of wild birds and wildlife offences generally. Amendment 23, in the name of Liam McArthur, is grouped with amendment 58.
Given my earlier sin of omission, I will start by moving amendment 23.
As was the case with amendment 21, I find myself speaking to my amendment while being strangely attracted by the allure of the other amendment in the group, which may reflect more accurately what I am seeking to achieve.
At stage 1, the committee agreed that it would be helpful, not least to raise the profile of wildlife crime and to increase efforts to bear down on it, were ministers to report regularly to Parliament on the extent of the problem and the measures that are being taken to combat it. Having read the Government’s response, I am pleased that the minister has been able to accept the principle. I look forward to hearing her comments on how it may be made to work in practice. Depending on what is said, I may seek leave to withdraw my amendment in favour of amendment 58, in the name of Peter Peacock.
I move amendment 23.
Given that Liam McArthur and I did not talk about the issue before stage 2, there is a remarkable coincidence in drafting between the two amendments, with the exception of about three words. My amendment refers to wildlife crime more generally, whereas Liam McArthur’s focuses on birds in particular. The amendments support the Government’s policy intention. If the minister is able to accept one of them, I am happy to go with either formulation. If not, I hope that she will consider the matter and come back with an amendment at stage 3.
I want to make two points. First, if the minister does not report, perhaps SNH should. That may be a matter for discussion. Secondly, the committee heard evidence that there is some inconsistency in the statistics that are gathered on wildlife crime. I invite you to comment on that and on the suggestion that it may become a recordable offence.
I am perfectly happy to provide an annual report on wildlife crime, if that is required. As a sidebar to the discussion, I note that questions may be raised about why wildlife crime, as opposed to many of the other aspects of criminal behaviour that could be subject to the same procedure, is being singled out for an annual report. Providing for an annual report suggests that more than just statistics are required, so there is a little uncertainty about what format the report would take. However, I am perfectly happy to go there if the committee wishes.
12:45
Amendment 23 is limited to the persecution of wild birds, which may give a clue as to who had a hand in drafting it. There is a flaw in it, however. If we are going to do this, it must be about more than just birds, so the amendment would need to be broader. I oppose amendment 23 on that ground if nothing else.
Both amendments appear to misunderstand the role of wildlife inspectors, who have certain functions that are limited to certain offences. They do not get involved in the investigation of unlawful killing of wild birds or any other protected species. It may be that the amendments were intended to refer to wildlife crime officers—I am not quite sure—but wildlife inspectors are slightly different.
If it is the committee’s will that there should be an annual report I am prepared to come back with a new proposal at stage 3. The Association of Chief Police Officers in Scotland advises that wildlife crime is recordable, but that change has been made only in the past year or so, so it is probably not feeding through into the published statistics yet. That may deal with the point that Bill Wilson raised. We can discuss at stage 3 what the annual report might look like and what it should capture, if members are amenable to that.
I am grateful to the minister for her response. I recognise the flaws in amendment 23 and acknowledge her concerns about amendment 51. She questioned why wildlife crime is being singled out for a report. We regularly discuss other aspects of crime in Parliament; a report would reflect the importance that we attach to the issue and the attempts by the Parliament and successive Governments to bear down on it. It may well be that the reporting structure will change over time, if—as we all hope—we achieve some success, but wildlife crime is central at present and that is the sentiment behind both amendments.
I am happy with the minister’s response and seek to withdraw my amendment on that basis.
Amendment 23, by agreement, withdrawn.
Amendment 51 not moved.
I think that we should finish after section 6. The subsequent sections are quite hefty, so we will keep them for another day.
Section 6—Protection of wild hares etc
The next group is on the protection of wild hares. Amendment 24, in the name of John Scott, is grouped with amendments 25, 5, 7 and 15 to 17.
The introduction of close seasons for mountain and brown hare, as proposed in the bill, creates a welfare and conservation measure where there was none before. I welcome it, but the close season dates need to balance concerns about the timings of practical measures to mitigate crop and tree damage and the control of diseases such as louping ill. The later starts to the close seasons that my amendment proposes would provide a short window to allow such work to be carried out in the early spring, after the winter months. Amendment 24 would mean that the close season for mountain—or blue—hare will run from 1 April to 31 July, and for brown hare from 1 March to 30 September. That would give a close period of four months for the mountain hare to allow for breeding, and seven months for the brown hare. I hope that that will find support with the committee and the Government.
I move amendment 24.
The Government amendments in this group are intended to ensure that a person who is authorised under other enactments to take or kill hares for specific purposes is not committing an offence. The amendments bring the new hare and rabbit offences into line with the existing bird and animal offences in the 1981 act.
We have introduced close seasons for hares to provide greater protection at times of greatest welfare concern. That will replace the current limited protection that focuses on the sale of hares at certain times of the year.
The committee heard evidence from SNH about the effect a change in the proposed close season dates would have on the welfare of hares. Nearly half of all females are pregnant in February, so the change to the close season dates that John Scott proposes would impact on the actively breeding population and harm dependent young.
I understand that land managers have raised concerns about flexibility in carrying out control. Research commissioned by SNH on mountain hares showed that on let, commercial and formal shooting areas, only around 10 per cent of hares were shot between March and August. For unlet and informal shooting areas, the figure drops to 2 per cent. I therefore do not think that the proposed close season dates will cause the predicted difficulty to land managers that John Scott envisages and that has led to his lodging amendment 24.
We should also remember that land managers will be able to apply for licences to take action during the close season, if that is required. For those reasons, I oppose amendment 24 and commend amendment 5 to the committee.
I thank the minister for her statement. I am interested to hear that land managers can apply for licences, if they are required for control purposes. I hope that the burden of proof will be easier than it perhaps is for buzzards; I assume that in that regard it will be a different position. I therefore will not press amendment 24.
Amendment 24, by agreement, withdrawn.
Amendment 25 moved—[Karen Gillon].
The question is, that amendment 25 be agreed to. Are we agreed?
Members: No.
Against
Gillon, Karen (Clydesdale) (Lab)
McArthur, Liam (Orkney) (LD)
Murray, Elaine (Dumfries) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Watt, Maureen (North East Scotland) (SNP)
White, Sandra (Glasgow) (SNP)
Wilson, Bill (West of Scotland) (SNP)
Abstentions
Scott, John (Ayr) (Con)
The result of the division is: For 0, Against 7, Abstentions 1.
Amendment 25 disagreed to.
Amendment 5 moved—[Roseanna Cunningham]—and agreed to.
Section 6, as amended, agreed to.
That ends today’s consideration of the bill. We will continue our stage 2 consideration at our next meeting, on 12 January, when the target will be up to and including section 21, which is the end of part 2. I thank the minister, her officials and everyone else for their attendance. I wish you all a happy Christmas and a healthy and happy new year.
I suspend the meeting briefly to give members a comfort break.
12:54
Meeting suspended.
12:59
On resuming—