Justice and Home Affairs Committee, 27 Sep 2000

Meeting date: Wednesday, September 27, 2000

Official Report 216KB pdf

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Protection of Wild Mammals (Scotland) Bill: Stage 1

The next item on our agenda is to take evidence on the Protection of Wild Mammals (Scotland) Bill. I remind everyone that our remit covers only the law enforcement aspects of the bill; we will not, in this committee, discuss its general and other principles.

Mike Rumbles and Alex Fergusson have come to join us and are, of course, free to take part and ask whatever questions they feel appropriate. Giving evidence are representatives of the Scottish Countryside Alliance, some of whom are rather well-kent faces. Allan Murray, whom I do not know, will introduce his team and give us a brief opening statement.

Thank you for the invitation to address the Justice and Home Affairs Committee. Peter Watson, a solicitor advocate from Levy and McRae, and Paul Cullen QC are our legal advisers; Simon Hart is one of my campaigns directors; and I am director of the Scottish Countryside Alliance.

I welcome the opportunity to give members of the committee a short statement on why we are here today to give evidence. I understand fully, and endorse, what the deputy convener said about the remit of the committee. I stress that we have not come to debate the rights and wrongs of banning hunting with dogs.

I would like to introduce some key points for discussion. We have prepared a short submission, which we have presented to the clerk. The submission deals specifically with matters that we feel are appropriate to the Justice and Home Affairs Committee. It also summarises the parts of the proposed legislation that are appropriate. To help everyone, the submission discloses all the independent advice that we have taken and received from Scottish and English counsels. We have included three opinions on the legal aspects.

We feel that it is important to emphasise that the bill removes established fundamental rights from a substantial section of the community. It seeks to criminalise activities that have been lawful for centuries. It is our position that the state must justify legislation that removes those rights. The bill should be closely scrutinised to ensure that its aims and methods are justified and proportionate. It seems that the bill also restricts fundamental freedoms in a sweeping and draconian way. In particular, far-reaching new powers are to be given to the police. Those powers extend well beyond what is reasonably required. Substantial criminal penalties will be imposed and property will be confiscated without compensation.

We believe that social inclusion means respecting the rights of all sections of Scottish society. The declared aim of the bill is to ban hunting. However, the definition of hunting that is given in the bill goes far beyond that aim. Indiscriminately, the bill will outlaw many everyday countryside activities.

We think that the bill will endanger policing by consent, for example, by introducing stop and search, and powers of confiscation, and by criminalising an important aspect of countryside management. It would be wrong to pass any law that might drive a long-established activity underground. If that happened, the regulation of hunting would be destroyed.

For those reasons, I submit that the bill is fundamentally flawed and that the committee should recommend that the bill proceed no further.

We will attempt to answer any questions that are put to us.

Have you had a chance to consider the evidence that we took last week? Certain concessions were made last week, particularly by Mike Jones. It is important that we are all talking about the same thing. I take it by the nodding heads that you have seen that evidence.

Yes, we have.

I want to clarify that it is not the remit of the committee to recommend that the bill should not go ahead. We have to consider a certain aspect of the bill, but it is for the Rural Affairs Committee to recommend whether it should proceed.

We will discuss in private what will be in our report to the Rural Affairs Committee, but I agree that we should not go down the path of recommending whether the bill should go ahead. We will confine ourselves to the legal aspects of the bill. Theoretically, they could be so far off the wall that they might destroy the whole bill.

I think that members of the Rural Affairs Committee expect that if, after considering the legal implications of the bill, the Justice and Home Affairs Committee judges that the bill is not competent, it will make a recommendation.

I will take account of that view when we discuss our report in private later.

I note that Mr Murray's group has read the evidence that we took last week. Is the Countryside Alliance concerned by statements such as that made last week by Mike Jones, who is a senior Queen's counsel? He said:

"We accept that the formulation in the bill as it stands is inappropriate".—[Official Report, Justice and Home Affairs Committee, 19 September 2000; c 1711.]

If the people who are presenting the bill think, from a legal perspective, that that is the case, what is the view of the Countryside Alliance?

As I understand it, Mr Jones was here last week to assist the committee from an independent and objective perspective and gave his legal opinion in good faith. I agree that the fact that he has given that opinion on behalf of the promoters of the bill goes a long way to undermining the justification for the bill.

As we say in our written submission, we believe that the bill is fundamentally flawed, that it goes far beyond the stated intention of its promoters and that it will lead to unfortunate consequences.

As a former Solicitor General, you are renowned for your strong knowledge of Scots law and parliamentary procedures—please ignore the ignorant laughter from one or two of our members. Last week, Mr Swann said that the bill had to be "polished up" and that that could be done by removing section 2, which represents about 25 per cent of the volume of the bill. Is that unprecedented for a bill at this stage?

When the bill was presented to Parliament, the licensing scheme was regarded as an integral and essential ingredient in the legislation. We were somewhat surprised to learn that that important component is now to be removed. What will replace it remains a little obscure to the Countryside Alliance. We believe that there will be considerable difficulties in defining in the bill the permitted and lawful activities.

Do you think that it would set a precedent to remove such a large chunk of any bill at this stage?

Objection, convener. That is not a relevant question.

I do not want to stop you, Phil, but I feel that you are going into a fairly political attack on the bill, rather than questioning its legal implications. Let us try to concentrate on what we should be doing.

I am sorry. I refrained from commenting on this earlier, but what we are looking at, as I understand it, is the way in which the bill fits in with our criminal law and legislative process. However, I shall let that go and pick up on another point that was raised last week with Gordon Nardell, the barrister who was the originator of the written content of the bill. He acknowledged that if the land reform bill that is scheduled to go through the Parliament were to proceed, it would have considerable implications for the bill that we are considering today. Does the Scottish Countryside Alliance feel that it would be appropriate to pass a bill that would immediately have to be reformed if land reform were going ahead?

If land reform legislation were to go through Parliament now, a bill such as this would have to be reconsidered, as it would not work.

Representatives from Tayside police were here last week, speaking for the Scottish police as a whole. They said that they had concerns about the implications of the bill for the co-operation that they receive from people in the countryside with respect to law enforcement. What is your view on that?

Our view is the same as that of Tayside police. The respect of countryside people helps police forces to manage their areas, especially with wildlife. Police officers do a wonderful job to ensure that there is a balance between any country pursuit and maintaining wildlife.

Do you feel that the enforcement requirements for the police would create an impossible working atmosphere in the countryside if the bill were passed?

I do, because the best police work in the country is done with consent and community spirit. That is well recognised in Scotland, and the police know that. For instance, many police forces have officers on duty when a day's hunting takes place. They do that not only because it is part of their job, but because the police are part of the countryside, too. The way things work at the moment is favourable, so if it ain't broke, why fix it?

I want to ask about enforcement and co-operation from the public in providing information. The police told us that they would be interested only in blatant examples of hunting, such as riding to hounds, hare coursing or fox baiting by terriers. They felt that people in the countryside would generally support them in such cases, and that a man with a gun and a couple of dogs would not be an object of their interest. Do you agree with that assessment?

I also want to ask about terrier work. There seem to be two kinds of terrier work, which has not been properly emphasised in the bill. Fox baiting goes on with terriers, but there is obviously fox control as well. Do you think that the differences between those two kinds of terrier work could be teased out so that one could be legal and the other illegal?

For a gamekeeper, a terrier is a necessary part of his work, especially in the wonderful landscape of the Highlands of Scotland, where terriers are used to control vermin. I am not aware of the term "fox baiting". That is not a legal practice, as everyone is well aware. Fox work and terrier work, especially underground, to control vermin is a necessary part of a gamekeeper's work. The bill would legislate against that. In large parts of the landscape, therefore, particularly in the Highlands, grouse moors would not be viable and therefore unable to sustain an economy that is very necessary to Scotland. Many tourists come specifically for the grouse. Gamekeepers use terriers as part of a management control system.

The police pointed that out, but they mentioned other types of terrier work, which they described as fairly vicious.

Acts are already in place to control illegal terrier baiting. I am sure that the police would enforce those acts should a member of the public inform them that terrier baiting was taking place.

You have not said whether you agree with the proposition that the bill would deal only with blatant examples of hunting for sport. I get the impression that you are trying to suggest that everyone who went after a fox would be criminalised, and I do not think that that is the case.

We acknowledge that the police will need to identify priorities. I believe that that point was emphasised by the Association of Chief Police Officers in Scotland representatives who gave evidence last week.

We suggest that, when introducing legislation that makes criminal activities that have been lawful for a long time, the Parliament should be scrupulous in ensuring that the scope and extent of the criminal conduct is as tightly identified as possible. After all, it is not for the police to define the reach of the criminal law—that is a matter for the Parliament.

One of our concerns, which we have tried to identify in our submission, is that the bill reaches too far. The powers that the bill gives the police are wide reaching and unnecessary. We do not believe that the police wish to have those powers.

I will confine myself to a question on the European convention on human rights. The bill's proposers told us that there were no problems under the European convention on human rights. Could you address that issue and give us your views on compensation?

We disagree with that opinion. We have submitted to the committee the opinion of English and Scottish counsel to contrary effect. In a nutshell, we think that the legislation infringes article 8 of the European convention on human rights, which is the right to respect for home and private life. Furthermore, the legislation infringes article 1 of protocol 1, the right to peaceful enjoyment of property.

It is for the state to justify those infringements of human rights. We submit that there must be a compelling basis for invading established human rights. As we have tried to emphasise in our submission, human rights are concerned with protecting the rights of groups whose views may not find favour with the whole population.

Our legal reasoning is set out in some detail in the submission. If you have any specific questions on the European convention on human rights, I am happy to try and tackle them.

Thank you. Assuming that the issue could be dealt with under the bill without breaching ECHR, do you think that a compensatory element should be included ? That is something that we have done in other legislation.

The absence of any machinery for compensation makes it even more difficult to justify the bill. However, we are not saying that a compensation procedure would save the bill in ECHR terms. The bill stands in stark contrast to the legislation that outlawed handguns, which, as committee members know, included compensation machinery. That was a generous compensation package, which included compensation for loss of profits.

The bill concerns not only a recreational activity—although that aspect is important—but an activity that has important economic consequences. We believe that the absence of any compensation machinery would be fatal to the bill's compatibility with the European convention on human rights.

I apologise to Euan Robson for missing him out. I finally got spectacles at the weekend, but they do not seem to be doing me much good.

Ironically, Christine Grahame asked exactly the question that I was going to ask, but never mind.

I will raise the point that Gordon Jackson made at last week's meeting, of which you probably read the report. He talked about section 5(6), which says:

"In proceedings for an offence under section 1(2), the burden of proving . . . is on the person charged."

You will know that that may be appropriate for some serious crimes, such as those involving drugs, but what is your view on such a provision for the offences that the Parliament will create if the bill is passed?

Our written submission contains a short section on civil liberties, but Euan Robson raises an important point to which I will respond. In our view, it is inappropriate to transfer the burden of proof to an accused person in legislation such as this bill. Manifestly, the bill does not deal with major threats to public safety, such as terrorism or organised crime. We see no justification for departing from the basic principle of Scots law that it is for the prosecution to establish and bring home guilt on every aspect of a charge.

For the avoidance of doubt, I must say that we have not seen your written submission. We have it now, but no committee member has had a chance to read it. We will read it afterwards, but do not assume that we have read it, because we have not.

Are you saying that it may be appropriate for the burden of proof to rest on a person charged with a serious crime such as terrorism or drug trafficking, but that it is inappropriate for it to rest on a minority of the population who have been conducting an activity that has been lawful for many years?

That is right. Furthermore, transferring the burden of establishing innocence to the accused person makes it more difficult for the bill to comply with the ECHR.

At the risk of asking questions that others might want to ask, I will ask about section 4, which concerns

"A constable who suspects . . . that a person . . . is about to commit an offence".

Are there parallels for that provision in other wildlife legislation, or is that a novel introduction?

We suggest that that is novel not only for animal welfare legislation but for most legislation. Giving police officers the power to stop and search citizens in the countryside before any offence has been committed, through vague language about an offence that is about to be committed, is draconian. In our written submission, we describe such powers as

"an extraordinary and unacceptable feature of this Bill."

We do not believe that that is an exaggeration.

We suggest that the bill is quite different from most other animal welfare legislation. As we understand it, all animal welfare legislation this century criminalises conduct only if three conditions are met: first, that the causing of unnecessary distress or suffering is proved; secondly, that there is either criminal intention or criminal recklessness; and, thirdly, that the legislation clearly defines the scope of the criminal activity. This bill fails each of those three tests and so is markedly out of step with existing animal welfare legislation.

I think that it was Allan Murray who answered questions about the enforceability of any legislation that may be passed. Do you believe that the difficulty in enforcing legislation to ban fox hunting arises because people in the countryside do not want such legislation? Is that the crux of your argument on enforceability?

No.

With respect, convener, this is not addressing the issues that we should be addressing. We are addressing criminality, not principles.

That is the pot calling the kettle black.

Stop. I have heard your point, Phil. Carry on, Michael.

My question concerns the issue of justice.

I am sure that many people in the countryside do not want the bill as it has been written. If a bill such as this is passed, people will not break the law unnecessarily. The police have to have the powers to enforce these laws, like any other laws, whether they apply to countryside or town issues. We respect laws. We have done so all my life, and we will continue to do so. If the bill is enacted, it will be enforced, but resources will have to be found to do that. We have good relations with the police in the countryside and we respect them for what they do. They have a tough job covering the areas that they have to cover with the resources that they have.

I understood from your earlier comments that you thought that the legislation would not be enforceable, on the basis that people in the countryside would not support it and that the police are dependent on the public's good will to inform them of incidents. Legislation on badger baiting and deer hunting with dogs has been on the statute books since 1951; it is enforceable and it has not placed considerable resource demands on the police. Unless the illegal activity is widely undertaken, the bill should be enforceable, just as the earlier legislation is. Is not that the case?

It is the case.

The legislation to which you referred is enforced through co-operation with the police. The deer hunting act that you mention was introduced for reasons other than morality and ethics and relies on landowners co-operating with the police for its implementation.

If the bill is passed, the good will that exists between landowners and the police—certainly with wildlife officers—would go into reverse. The police would be seen as a potential enemy, because legitimate, and sometimes perfectly normal, countryside pursuits might be interpreted as activities that could lead to prosecution or at least to suspicion. For example, landowners may permit a person to come on to the land for the purpose of walking their dog. At the moment, that is encouraged and welcomed by landowners, but a time could come when they did not want it to happen because it could lead to suspicion falling on that person or on the landowner.

Are you saying that, if the bill is passed, landowners might turn a blind eye to illegal activity on their property?

Certainly not. The point that I am trying to make is that the bill would jeopardise the co-operation that exists between landowners and the police, and between landowners and the public, because it would impose a difficult job on the police in their dealings with landowners in implementing that law. Equally important, the good will that exists between the public and landowners could be jeopardised to such an extent that issues such as public access would become difficult. Legitimate forms of pest control on which farmers rely—I am talking not about recreational dog use but about economic dog use—may also become the subject of suspicion, if not prosecution. That is where the breakdown of the relationship would occur.

Euan Robson talked about people being arrested before a crime had been committed and having their gear confiscated. How similar are the proposed powers to measures in the laws on salmon and deer poaching? I believe that, in those cases, people can be arrested before anything has happened and have their gear confiscated.

That area was covered in evidence last week. As we understand it, the promoters of the bill may be prepared to concede that they have gone too far in including powers for the police in respect of offences that are about to be committed. It is not our understanding that other legislation mirrors such powers. As was explained last week, where the police have evidence of an attempted crime, they may be justified in intervening. That might be one way of approaching this issue.

Rather than these somewhat technical aspects, what really concerns us is the sweep of powers that are being given to the police—powers that we understand they do not want. We are especially concerned about stop and search. As members of the committee will be only too aware, those powers have given rise to difficulty and concern in many communities.

Are the powers similar to the ones that the police can use against suspected poachers?

They are more draconian.

In what way?

We do not think that the police have explicit stop-and-search powers at the moment. The powers of seizure that the bill would give to the police seem to be extensive. When we come to examine other aspects of the penalties that would be created—particularly in relation to dogs—we will see that the bill seeks to establish something that goes well beyond what is necessary, even if the bill as a whole is justified.

Let me try to develop that idea a little. Why, for example, is there a reference in section 6(1) to "any dog"—a definition that is not even limited to a dog that has been used for hunting? I hope that I am answering the question, but we have to consider the totality of the machinery that the bill is creating.

I do not think that you are answering my question. A dog is a tool of the trade. If a stick of gelignite or a rod were found in the back of someone's car, the car would be confiscated. I take it that the Scottish Countryside Alliance is in favour of the laws against poaching.

Yes, we are in favour of the laws against poaching, definitely.

I may not have made my case quite clear in relation to dogs. Section 6(1) permits confiscation and disqualification of "any dog". It does not have to be a dog that is used for hunting. That dog can be retained by the police or by whomever—we do not yet know the arrangements that are to be made for this, as they have yet to be explained. The owner of the dog is required to pay for its upkeep while it is in custody. What is the justification for those powers? As far as we can see, that has not been explained at all. Given that we are dealing with the general principles of the bill, rather than the nitty-gritty—which we will come to at stage 2—we believe that there is a substantial onus on the promoters of the bill to justify those sweeping powers. As we understand it, they have made no serious attempt to do that. In fact, last week, they started to dismantle their own proposals, as has been pointed out.

I want to follow up Maureen Macmillan's question about other animal legislation. You said that the proposals are more draconian than in previous legislation. The Deer (Scotland) Act 1996 says, among other things, that

"any person who—

attempts to commit, or

does any act preparatory to the commission of,

an offence . . . shall be guilty of an offence".

That act makes it an offence to do something even days before, which seems to be more draconian than the power to deal with people who are about to commit an offence—even though the committee is not entirely happy with that provision either. Why do you think that one provision is more draconian than the other?

With respect, I disagree with what you are suggesting. The phrase

"about to commit an offence"

used in section 4 of the bill is vague and unsatisfactory. It is less precise than the wording in the Deer (Scotland) Act 1996, especially regarding preparations for committing an offence. At what point when someone goes into the countryside with a dog can it be said that he is about to commit an offence? Is it when he leaves home, when he gets out of his car or when he takes his dog on or off a lead? When does the requirement

"about to commit an offence"

become established and concrete? Those matters will be left to the judgment of police officers in the countryside. Although the police will no doubt exercise their powers with discretion and care, we feel that the provision is unnecessary.

Although you do not want any of these provisions, do you think that it would be better to have wording similar to that in the Deer (Scotland) Act 1996?

Again, with respect, it is not for us to redraft the bill; we are here to consider its underlying principles. From the bill as a whole, it is clear that the powers that are being given to the police and the penalties that will be introduced are too great. However, we are happy at an appropriate stage to consider technical questions of drafting.

I am at this meeting as a member of the Rural Affairs Committee, as the bill raises important issues about law enforcement. I am interested in the issues of policing by consent and the civil liberties matters that we have been discussing. I have three points to make. First, to find a problem with the bill, one has only to read the very first line:

"A person must not hunt a wild mammal with a dog".

Last week, Assistant Chief Constable Ian Gordon said that terrier control was the best way of catching rats that go underground. However, if the terrier goes underground for a rat, that might be in contravention of this legislation; the bill provides a wide-ranging, catch-all law.

Secondly, on civil liberties, Gordon Jackson mentioned the draconian nature of section 5(6), which stipulates that the burden of proof will apply to the person charged. At last week's Justice and Home Affairs Committee meeting, Gordon Jackson compared this provision to cases under Scots law where there are occasions for draconian legislation—for example, when we deal with drugs barons and so on. He said that

"drugs are such a social evil that society, on balance, demands that approach. It is therefore reasonable, to stop major drug dealers escaping, that they have to prove their innocence".

However, Ian Gordon said last week that what we are talking about

"would not fit the criteria of a serious crime . . . the offences are relatively minor"—[Official Report, Justice and Home Affairs Committee, 19 September 2000; c 1707, 1725.]

On a point of order, convener.

Just a minute.

My third point concerns section 4(1), which mentions

"A constable who suspects with reasonable cause that a person has committed, is committing or is about to commit an offence".

At last week's meeting, the people who were defending the inclusion of the section in the bill told the committee that such wording was not needed. What is your reaction to those three points?

On your first point, we agree that the offence is poorly defined. It is a catch-all provision and we are not satisfied that it is possible to define hunting in a way that achieves the aim of the promoters of the bill.

On your second point, we are concerned about the transfer of the onus of proof to the accused person. We think that that raises major ECHR concerns.

On your third point, as I have tried to explain, we have serious reservations about the fact that section 4(1) refers to someone who is

"about to commit an offence".

We think that that is vague, imprecise and liable to lead to practical difficulties.

Does anyone have any further questions?

Allan Murray or Simon Hart may be able to give an illustration of the difficulty that we think that that definition of hunting will create in practice.

In a sense, the mounted aspect of hunting is probably the least of the problems. We have divided the issue into the recreational use of dogs and the practical use of dogs.

Practical users of dogs who would be caught up in the bill are upland shepherds and upland gamekeepers who need terrier work to secure their crop of birds. Also affected would be the use of lurchers for pest control and the use of flushing dogs for finding predators so that they can be shot. Falconers would also be caught up in the equation. A shepherd who is going about his normal shepherding duties might find that he is inadvertently hunting a fox that may be part of the landscape in which he is working.

Recreational dog use includes the walking of a dog that is instinctively a hunting dog. A person doing so could find themselves caught up in issues arising from the bill, as could the recreational falconer. Dog trainers and those who take part in dog trials are also at risk from the bill.

The risks are not restricted to rural dog users. Anybody—even if they live in an urban area—who owns a dog with an instinct to hunt and who exercises or works it in a rural area could be caught up in the legislation.

I thank you all for coming. It is always valuable to talk to witnesses.

We thank the committee for the questions that it has asked us. I hope that our answers will be helpful.

Convener, am I right in thinking that item 7 on your agenda will be taken in private?

Yes. It has been agreed that we will discuss what our recommendation will be off the record.

In that case, thank you for asking us to attend the meeting.