Protection of Wild Mammals (Scotland) Bill: Stage 2
After section 1
Agenda item 3 is continuation of our stage 2 consideration of the Protection of Wild Mammals (Scotland) Bill. I am as determined as possible to reach at least amendments 94 and 94A, which will take us to section 3 and after section 3. We are not limited to that, but I am determined to reach that point.
Amendment 91 is grouped with amendment 91A.
I gave a commitment last week to lodge amendment 91. As I said, it was never my intention to penalise or affect the legitimate activities of those who shoot for sport, or of falconers. I originally expected amendment 53 to provide a comprehensive exemption for such activities, but it transpired that amendment 53 is not as comprehensive as it might have been. For example, it exempted the use of birds of prey when the mammal being hunted was intended for food, but it seems that a wider exemption is required. Last week, I undertook to bring forward a suitable amendment and I now present amendment 91 to the committee.
Amendment 91 is designed to exempt the activities of shooters and falconers, except the retrieving of mammals. That is covered by amendment 92, which amends section 3. Amendment 91 would require people who use dogs for shooting or falconry to be responsible and to use them in a responsible way. That is why there is a requirement for a firearms certificate and for permission from the landowner. The amendment also imposes a requirement for reasonable humaneness. That is designed to do nothing more than mirror the good practice that representative bodies reasonably expect from their members.
I have a comment on amendment 91A. Last week, I had a brief discussion with David Mundell to tell him about my proposal. Following that, he lodged amendment 91A, which relates to written permission. I do not accept the amendment. In written evidence at stage 2 the Scottish Gamekeepers Association stated that it approved of the requirement for written permission. The organisation stated that it
"accepts that ‘Written Permission' from Landowner or Occupier is a sensible precaution against those who may mistreat dogs or wild mammals."
For that reason, I hope that amendment 91A will not be supported, but I ask for support for amendment 91.
I move amendment 91.
I thank Mike Watson for discussing with me last week the principles of amendment 91. As he indicated, I am happy to support the terms of amendment 91, except on the issue that was raised with the committee during a debate on earlier sections, which is whether permission should require to be in writing. As members will recall from that previous occasion, the need for written permission, rather than permission, was deleted. Therefore, I believe that amendment 91A is consistent with earlier sections.
Secondly, I believe, for the arguments previously rehearsed, that it would be draconian and over the top for the bill to require written permission. We have heard previously about the nature of activities that take place in the morning or are sometimes unplanned. We have heard also about the complicated nature of the countryside and the difficulties in contacting people in a written format. I believe that legislation has generally been moving away from the requirement for written permission because we have been taking into account the fact that people use electronic means much more, such as mobile phones and other modes of communication. I believe that the bill is not of such import that it would justify moving back from the general principle of accepting non-written permission as opposed to written permission. That is why I offer the committee the opportunity to make that amendment to amendment 91.
I move amendment 91A.
I welcome the fact that we are making a new effort to have falconry removed from the scope of the bill. I believe that there is a common purpose among members to achieve that. However, looking at the specific wording of amendment 91 it seems to me that there are three issues that must be addressed. If they are not, amendment 91 cannot be supported and, at best, would need to be amended at stage 3. I hope that Mike Watson will respond explicitly to each of the three points, which have been made to me by Mr Andrew Brown of the Scottish Hawk Board, and also by Mr Hallgarth of Perthshire Falconry Services, to whom I spoke this morning.
The first point is on the definition of the phrase "under control," which appears in line 3 of amendment 91. It has been put to me that in falconry dogs often run ahead of the owner and go out of sight, over a hill. Is the dog under control at that point? It seems to me to be stretching the definition of under control to include a dog that one cannot see and that cannot see its owner.
Secondly, if the dog is in sight, but at a distance of 200yd or 300yd, is it under the control of the owner by means of a whistle? Depending on wind direction the dog might not be able to respond to the whistle or the direction of the owner.
In those two circumstances a practical problem must be addressed, in that the phrase under control creates a restriction that would prohibit falconry. I assume that that is not what we want to do. I hope that Mike Watson will respond to that. It is not really for any member to define the phrase under control; the question is how a court would define it. A court would probably say that a dog cannot be under control in the circumstances and therefore that falconry is illegal.
Thirdly, I understand that although falconry is traditionally a sport, it has been developed more recently for pest control purposes. Mr Watson's amendment 91 states that falconry is accepted but
"for the purpose of sport".
I understand that members will want to know how falconry is used for pest control. This morning, I spoke to Mr Hallgarth of Perthshire Falconry Services. That company carries out pest control using falcons. Mr Hallgarth tells me that there are a number of situations where falcons must be used rather than guns. One such situation is the control of hares and rodents in stables where there are valuable horses that would be frightened by the use of guns to control pests. Amendment 91 would make those activities illegal.
Guns cannot be used on plantations with young trees because the trees would be damaged. Falcons are therefore used. I understand that falcons are also used on landfill sites where it would be inappropriate to use guns. There might be other circumstances.
The point is that falconry is now used for pest control as well as sport. Perthshire Falconry Services would go out of business under the proposed legislation. That seems to me to be neither desirable nor necessary and it must be dealt with by an alteration to the proposed section.
I understand that there are a large number of businesses that have now developed through providing falconry for the purposes of entertainment. That brings revenue into the rural economy. As we know, the rural economy is having many problems. It would be absurd if the committee was to add to those problems by possibly banning the practice of falconry as a business. Plainly, where falconry is carried out primarily for commercial purposes, then the fact that it is providing sport does not detract from the fact that it is being carried out as a business and not as sport.
Those are my three objections and I hope that Mike Watson will agree to withdraw amendment 91. I will be happy to work with him to find a way to bring the issue back to the committee, perhaps next week, and to have consultations with Mr Brown and Mr Hallgarth. I hope that Mike Watson will recognise that my three points are well intentioned and that he will agree that it might be helpful to bring the issue back at a later stage.
It is quite valuable to have an amendment that addresses falconry. There is probably a consensus that we do not want to close down falconry. I am mindful of what Fergus Ewing has said about the difficulties with amendment 91. If we find ourselves voting on the issue, I would like to hear how we might ensure that the bill refers specifically to the protection of the sport of falconry.
This might be unusual but I would like to ask Fergus Ewing something.
It is all right with me but I cannot answer for Fergus Ewing.
I would like him to explain what he said about falconry services being used in a barn where there might be horses and where guns would not be suitable. Are you talking about sending a dog or a bird of prey in there?
As I understand it, it is not acceptable to use rifles and guns around horses being kept in a stable. It is dangerous and cruel to horses, who are susceptible to fright.
I understand that, but what are you suggesting?
I understand that dogs are used to flush the pests out and that the falcon disposes of the pest. Falcons are birds that dispose of mammalian and avian pests.
I understand all that. However, surely subsection (1) of the new section inserted by amendment 53 would cover that point because it mentions birds of prey.
It may do, but it may not.
I think it would.
I am not sure whether the new section will remain in the bill after stage 3. Who knows? Elaine Smith has said that she is not happy with the new section that was inserted by amendment 53, as amended, although she did not vote against it. Be that as it may, we are agreed that we have a section about falconry. It seems sensible, if we are having a section about falconry, that we should try to get it right. I have identified three points that have been put to me by people who know about these things. They are serious points, and I hope that the committee will feel that it is sensible to work together to find a means of dealing with the three—
I was curious about that. Convener, as Fergus Ewing mentioned that I voted for amendment 53, as amended, I have to put it on the record that there was no choice at that time. Frankly, we can examine the issue at stage 3.
With respect, we will have to stick with the amendment that we are considering at the moment. I do not doubt Mike Watson's genuine desire behind amendment 91, but three problems have been put to us by the Scottish Hawk Board, and it is right that the committee should examine them.
Would not it be best to get this measure into the bill now, and amend it at stage 3? At least then it would be in the bill.
That is a procedural possibility.
I tend to agree with Mike Rumbles. The wording can be examined again if necessary.
The normal method of controlling rats and mice in stables is with dogs. My understanding is that that will not be affected by the bill. The normal habit would be to use Jack Russell terriers in stables, for example, rather than falcons. I am surprised to hear of falcons being used in that way.
I wish to return to the business side of falconry. Clearly, going out to watch the sport of falconry is increasingly enjoyed by people. However, I would have thought that such spectators are involved in the sport, in the same way that football fans who go to a football match are involved in the sport, even though they are not actively engaged in it.
Minister, it is not my habit to invite you to comment on groups of amendments when you have not given formal notice that you wish to comment on them, if that is okay with you.
A splendid arrangement.
I assumed that it would meet with your approval. You should catch my eye if you wish to comment.
Indeed.
Does David Mundell have anything further to say on the amendments?
No. I have made the points that I wished to make.
In that case, I ask Mike Watson to wind up on this group.
On David Mundell's amendment 91A, we covered the aspect of written permission last week. Without it, we would be relying on a nod-and-a-wink arrangement, which is too loose. We need written permission. I reiterate the view that was expressed by the Scottish Gamekeepers Association.
Fergus Ewing has come up with some detailed points, which I admit had not occurred to me, but bearing in mind their source, I take them as serious points and worthy of consideration.
The definition of "under control" is an issue that we have come up against several times. I said at a previous stage 2 meeting that the description that I gave of under control when we took evidence from the Scottish Gamekeepers Association, the Scottish Hill Packs Association and the National Working Terrier Federation seemed to be accepted, given the vigorous nodding at the time. The description was that the same arrangement would apply as applies to a shepherd with a sheepdog—that is, somebody who regards a dog as being under his or her control while either within sight of a hand movement or hearing of a whistle.
I cannot see that the situation of dogs that are involved in falconry is any different. I cannot see why there should be a different test for that, because the weather conditions that Fergus Ewing outlined could happen anywhere, in any situation. It is up to the person who is taking the dog out to know whether he or she is in control of it. It has been said before that if it is necessary to provide a definition of "under control", such a definition could be inserted in section 7, if that was helpful. However, I do not think that asking what "under control" means is a reason for opposing amendment 91. It means the same as it has done in other circumstances when we have talked about having a dog under control.
I had not hitherto been aware that dogs were used in stables; that seems rather odd. As Elaine Smith said, one would not necessarily want to discharge a gun in a stable, but I do not see why the matter is a stumbling block to amendment 91. I am not sure what the point was, although I noted down three points. I ask Fergus Ewing to clarify what he meant by the use of dogs in stables.
One of the three examples that I gave involved falconry that was intended to be carried out for the purpose of pest control, rather than as a sport. Amendment 91 says that falconry is excepted only for the purpose of sport, not for that of pest control. The use of falconry in stabling is relevant because it is one of the three examples that I gave of the activity being pest control and not sport, according to our evidence. That is why I think that amendment 91 needs further amendment.
I would have thought that pest control was covered by subsection (1)(e) of the new section that was introduced by amendment 53, as amended, and the penultimate part of that amendment. On the question of falconry being entertainment, I echo Elaine Murray's point. While falconry is being performed for entertainment, the people who watch and are entertained by it indulge in a spectator sport. Whether falconry is performed for entertainment or commercial purposes, people are there to be entertained. As such, falconry could be described as sport.
I hope that Fergus Ewing accepts that the points that he raises are covered. If he does not, I agree with Mike Rumbles that the appropriate place for dealing with those specific points—if wording can be arrived at to deal with them—is stage 3. I hope that, on that basis, amendment 91 will be supported. I do not dismiss the points that have been made, I just do not think that they are serious—sorry, I do not mean that. I do not think that the points are big enough to prevent us from proceeding with amendment 91.
Do I take it that you would be sympathetic to a properly worded amendment at stage 3 that took into account further concerns?
Yes, if such an amendment clarified the matters that Fergus Ewing thinks require clarification and if it did not cut across the bill's current provisions.
I will clarify one point, which is not minor. The phrase "under control" is important and we want to be clear about its meaning. I, too, recall the evidence that was given three weeks ago by expert witnesses who said that a dog is under control when its owner believes that it is under control. Mike Watson said that a dog is under control when someone regards it as under control. Are you absolutely clear that that is what the phrase means? The definition seems extraordinarily subjective. Is a dog under control when someone believes that it is under control? I may not be unhappy with that definition, but it introduces a subjective test that a court would be unlikely to regard as having any purpose.
We will debate the definition of "under control" when we debate amendment 89—but not today. That definition will cover the whole bill. The point is well made, but we can move on and bring the debate on the grouping to a close.
I may repeat later what I will say now. When I say that a dog is under control when the person in control of it regards it as such, I refer to a dog that has been trained to do some tasks. When the person who is in control of that dog takes it out, he regards himself as being able to control that dog as a result of the training that it has undergone. That is the point that I made. People who use dogs do so because they believe them to be under their control. Otherwise, they would not use them.
As I said, I hope that we will return to that subject next week. At this point, I ask David Mundell to press amendment 91A or to withdraw it.
I will press the amendment.
The question is, that amendment 91A be agreed to. Are we agreed?
No.
There will be a division.
For
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fergusson, Alex (South of Scotland) (Con)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Against
Grant, Rhoda (Highlands and Islands) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Lochhead, Richard (North-East Scotland) (SNP)
Murray, Dr Elaine (Dumfries) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
The result of the division is: For 6, Against 5, Abstentions 0.
Amendment 91A agreed to.
I ask Mike Watson to press or withdraw amendment 91 as amended.
I am thinking about what happened with amendment 53 and how it has consistently been used against me in the intervening period. I will press amendment 91 because of the other aspects of it.
I do not think that amendment 53 has been used against you. You were true in stating last week that another member had signed the amendment and would also have been able to move it. You made that plain.
I accept that, but it has been said again today—as Elaine Smith noted—that an argument is being advanced against that amendment. I can understand that, but obviously I do not accept it.
Very well. However, you are moving amendment 91 as amended.
Yes.
Amendment 91, as amended, agreed to.
Amendment 71, in the name of Rhona Brankin, is in a group of its own.
Although it can fairly be said that section 3(1)(b) seems to cover the circumstances with which amendment 71 deals, the Executive has decided to lodge amendment 71 to cover the possibility of Mike Rumbles's amendment 4 being agreed to. Amendment 71 also gives powers specifically to the police and local authorities—something that is not in the bill at present. Our concern is that police officers and local authority pest control officers can be faced with circumstances in which they need to deploy dogs to find or catch a wild or escaped animal. That can happen when the animal has become a danger to itself—say, by finding itself trapped in a place of danger—or has become a nuisance or danger to the public.
Trained dog handlers can use dogs to find or catch the animal so that it can be removed to safety or—if, for example, it is injured—put down humanely. That practice should be permitted to continue and amendment 71 is constructed to allow authorised persons to continue to carry it out.
I move amendment 71.
Do any other members wish to comment on amendment 71? Does Mike Watson have a comment?
No.
Amendment 71 agreed to.
Amendment 86, in the name of Elaine Murray, was debated with amendment 60—which was disagreed to—on day 3. Is anyone prepared to move amendment 86?
In the interests of consistency, if amendment 86 requires to be moved, it is obviously open for any member to move it at stage 3.
That is absolutely true. However, any member can move amendment 86 today, given that it was debated a while ago and members might not remember what it is about.
Dr Murray is not here. Amendment 86 does not appear at this point on the grouping of amendments for day 4, so perhaps she is not aware that she has to be present to debate her amendment. Some of her colleagues might know whether she is coming back. If that were the case, I would be disappointed if any member—
I do not think that she intends to come back.
She is not coming back.
Ever.
Amendment 86 has been debated, Mr Ewing.
I hope that Elaine Murray is coming back. The thought of her permanent absence is sad.
Not, Mr Ewing, if it means that she is moving on to better things.
She may well be moving on to better things, if the rumours are to be believed.
In the marshalled list, members will find that amendment 86 comes in this position. If the amendment is not moved, it is not moved and, as Mr Tosh has quite rightly pointed out—that is why he is convener of the Procedures Committee—it can be lodged again at stage 3.
I presume that amendment 87 will suffer the same fate as amendment 86, because it too is in Elaine Murray's name. I invite anyone who wishes to move amendment 87 to do so.
Amendment 87 moved—[Fergus Ewing].
The question is, that amendment 87 be agreed to. Are we agreed?
No.
There will be a division.
For
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fergusson, Alex (South of Scotland) (Con)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Against
Grant, Rhoda (Highlands and Islands) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Lochhead, Richard (North-East Scotland) (SNP)
Smith, Elaine (Coatbridge and Chryston) (Lab)
The result of the division is: For 6, Against 4, Abstentions 0.
Amendment 87 agreed to.
Amendment 90 is grouped with amendment 90A.
Amendment 90 would add a further exception after section 1, on injured or diseased mammals. The amendment states:
"A person does not contravene section 1(1) by using a dog to despatch a wild mammal for the purpose of preventing suffering to the mammal, where the person reasonably believes that the mammal is injured or diseased."
The exception arises from evidence that we heard three weeks ago, principally from Paul Crofts of the Scottish Hill Packs Association. Paul Crofts also submitted written evidence at stage 1, which is included in volume 2 of our stage 1 report. At page 237 of that report, the evidence sets out why the amendment is necessary to the use of hill packs, in particular in the north of Scotland.
Mr Crofts's evidence is that the main aim when flushing the fox is to shoot it. However, in certain terrain, especially in the north of Scotland, shooting the fox can be extremely difficult. The possibility of the shot not killing cleanly always exists. The expert marksman who always kills the fox does not exist. The fox can therefore be shot, wounded and in great pain. In those circumstances, the dogs would follow the fox. Apparently, the stronger scent of the blood tells the dog that the fox has been injured and makes it likely that the fox will be caught and dispatched by a dog.
It is essential that it is permissible for dogs to be used to dispatch foxes in those circumstances, because the alternative is that the foxes would slink off to die a lingering death. That would surely be crueller, in that it would cause a far greater degree of suffering than quick dispatch.
On amendment 90A, which is in Stewart Stevenson's name, the question is whether a single dog can be sufficient for the dispatch of a fox. I will read from the evidence of Paul Crofts to press the argument that a single dog would not be sufficient in all circumstances, although it may be in many. Paul Crofts stated:
"It has been suggested in the Watson Bill that one dog could be trained and used to carry out the work …. If it were, it would be a great and considerable cost cutting exercise in hound feed and running costs. However, the truth is it is not feasible and in any case the scenario of using one dog to try and achieve the above operations would achieve the very thing the Watson Bill is claiming to prevent i.e. putting a wild mammal under duress.
One hound could in theory run a fox all day, in even a small 500-acre forestry block, until eventually he would expire of exhaustion. Hill Packs are looking for a quick, clean kill, using 15 to 25 purpose bred hill hounds a fox can be made to run out-with his own pace and will therefore be more susceptible to making a mistake and getting shot."
I hope that members will bear in mind the evidence of the Scottish Hill Packs Association. It is essential that a pack of dogs be used. That evidence was given by people who clearly care a great deal about animal welfare and would not use any method that they regarded as cruel. The method is necessary in the case of a fox that has been wounded. Some—perhaps not many—foxes suffer from disease. I understand that mange is a problem that considerably weakens foxes and renders them susceptible to a slow and lingering death. Surely it is better to have a swift dispatch than a slow and lingering death.
I move amendment 90.
I understand why Fergus Ewing has lodged amendment 90. It is important that we address the issue of injured and diseased mammals and that we prevent unnecessary suffering. Amendment 90A proposes the insertion of the word "single" to attempt—it is probably a failed attempt—to ensure that the provision does not drive a coach and horses through the bill by allowing packs once again to fox hunt. The reason that the insertion of "single" is probably flawed is that the pack itself will probably dispatch the fox reasonably quickly and a single dog can do that. However, it is impossible for those who control the pack to achieve the degree of certainty that "single" requires. I explored the possibility of inserting the phrase "up to two dogs" or "up to three dogs".
The issue might require further discussion and perhaps amendment at stage 3. In the meantime, I want to record my desire to ensure that the provision is not a back door to the reintroduction of fox hunting. At the same time, I recognise the difficulty in defining the practice of using a single dog, because that would probably not be practical. I ask the committee to consider my amendment as a possible way forward.
I move amendment 90A.
I have two observations. First, subsection (1A) of the new section that was introduced by amendment 53 as amended deals with the same issues as those in amendment 90. Secondly, my understanding of the quotation from the Scottish Hill Packs Association's evidence was that it referred to flushing a fox from forests, not to dispatching an injured fox. My understanding was that a lurcher was used to dispatch an injured fox, in which case one dog would be sufficient to the purpose.
Amendment 90 is very important. I have been impressed by the evidence that we have had on the issue. The key words are:
"preventing suffering to the mammal".
It would be immoral if we did not ensure that amendment 90, or the sentiment behind it, was incorporated into the bill—I hope that we can do that now.
The amendment says:
"A person does not contravene section 1(1) by using a dog to despatch a wild mammal for the purpose of preventing suffering to the mammal".
The purpose is quite clear. We should never put people in the position where they are out in the countryside, see that an animal is clearly wounded, send the dog in to dispatch it and are then arrested. We should not be thinking about putting people in that position, because it would be immoral. I support amendment 90.
Although I was heartened by what Stewart Stevenson said, I am disappointed that he intends to press amendment 90A. Inserting the word "single" would restrict the individual. If someone wanted to end an animal's suffering, that would best be done as quickly and effectively as possible. I ask Stewart Stevenson not to press amendment 90A.
In my former occupation, I was present on occasions when the use of a single dog could have caused suffering to the dog. The use of more than one dog would prevent a dog's suffering. We have spoken about the dogs' suffering before, and there are circumstances—members must take this on trust—when the use of more than one dog can be kind rather than inflicting more suffering.
I could understand that if a small dog were involved, but a lurcher would be less likely to suffer injury.
Amendment 90 talks about using "a dog", but Fergus Ewing seems to be talking about packs of dogs. Would a pack of dogs, in effect, tear the fox to shreds rather than leave it to suffer a slow and lingering death? Will Fergus Ewing comment on whether it would not be more humane to send a dog to scent out the fox and then use a gun? What would be wrong with that? I would also like to hear Mike Watson's view.
The phrase "tear the fox to shreds" brings an emotive element to the debate. It is also misleading and inaccurate, as it does not square with the evidence that we have heard from people who care about animals.
I asked a question.
I am answering the question.
Mr Ewing is answering the question as best he can.
Well, there we are. Who do we believe? Do we believe the evidence of the people who actually do the work, or do we believe somebody who uses an emotive phrase? I passionately believe the people who do the work, because they care deeply about doing their job so as to avoid inflicting suffering. For us to laugh and even sneer at those people is deeply unsettling. It is not a good advert for what we are trying to do with the bill, which is to sort it out.
Is it wrong to use packs? If it is, we may as well hand out P45 forms to the people who have given evidence to us, because they would be finished. They use packs because that is the only way in which they can operate in difficult terrain. I understand that Rhoda Grant is broadly supportive of the hill packs. I advise Elaine Smith that they are called hill packs because packs of dogs are needed to engage in the activity.
Elaine Smith stated that a pack of dogs would "tear the fox to shreds". As Mike Rumbles said, the purpose of amendment 90 is specifically to prevent suffering. We are not talking about bringing back fox hunting by the back door. The first remark that I made at stage 2 was that I believe that the days of mounted fox hunting for sport are numbered. I said that deliberately, as Parliament made that absolutely clear. However, Parliament also made it clear that we should not hand out P45 forms to people who are doing their jobs and who care about animals—possibly more than members who are not engaged in such activities. In the evidence that those people have given—it is there for Elaine Smith to read—they have advised that having only one hound doing the job is more cruel, as the fox is chased for a longer period. It is cruel to the dog and the fox. Cannot we recognise that the evidence that we have received is from people who are well intentioned, who care about what they are talking about and who, unlike us, actually know what happens?
I understand that the dispatch is conducted swiftly. We are talking about a wounded fox that is not in a position to put up much of a fight. The alternative is for the wounded animal to die a lingering death—possibly from gangrene—over several weeks. I ask all members who, like Elaine Smith, are thinking of voting against amendment 90: is that what we want? I think that it is not what we want; it is what we have to prevent from happening. I feel passionate about this issue. Although not many people are involved in this activity, it behoves the committee to stand up and protect them and to ensure that what they do is not rendered illegal.
Rhoda Grant wondered whether we could deal with this issue in subsection (1A) of the new section that was introduced by amendment 53 as amended. Although that would be possible, I must repeat that committee members have already talked about amending that new section at stage 3. We all supported that section, or at least did not dissent. How can I—or any other member who cares about the future of the practices in question—rely on the new section remaining the same? If Mr Watson gives me an undertaking that he will not amend the new section that was introduced by amendment 53, I will happily withdraw the amendment. However, I assume that Mr Watson will not do so—he can correct me if I am wrong—that he is not happy with the new section as it stands and that there will be amendments at stage 3. If that is the case, I say to Rhoda Grant that we cannot rely on the new section being around at stage 3. It will be completely altered. Why not deal with an amendment that specifically sets out, in a reasoned way, why the activity must go on to prevent unnecessary suffering to animals?
Although I will check the Official Report, I think that I did not make any statements; I asked questions. Perhaps Mike Watson will pick up one of the questions that was not answered. Why can we not use one dog to scent the fox and then shoot it?
If I can answer that—
You will get a chance to wind up on the grouping, Fergus.
I will attempt to answer Elaine Smith's question. If a wounded animal goes into thick cover such as deep bracken in a forestry area, it might not be able to move if it has lost a lot of blood or is badly wounded. It would be quicker to find and dispatch the fox if more than one dog were used. It would be unforgivable for other people to stand around with their dogs on leashes while only one dog searched for the suffering animal.
I remind Fergus Ewing of one of my comments that he did not address, about his quotation from the Scottish Hill Packs Association's evidence. My understanding of that quotation is that, although the packs use more than one hound to flush, they use one lurcher to dispatch an injured fox.
I do not want Fergus Ewing to think—nor do I want the record to show—that, in smiling or laughing, I was sneering at those who gave evidence. I was not; I was simply responding to what I thought was an amusing remark in one of Fergus Ewing's replies. It had nothing whatsoever to do with the content of the question.
This debate is important; indeed, the issue is very important to the Scottish Gamekeepers Association and the Scottish Hill Packs Association. I hope that I can answer Elaine Smith's question in my response. The answer is yes—as the briefing from the Scottish Society for the Prevention of Cruelty to Animals says:
"Where an animal is diseased or injured it is usually considered humane to despatch it. The intention should be for the dog to locate the injured wild mammal so that it may be shot, not to kill it. Allowing a dog to kill an injured or diseased wild mammal carries a risk of injury to the dog."
That sums up the matter for me. Furthermore, although my memory of the evidence that Paul Crofts of the Scottish Hill Packs Association gave three or four weeks ago is hardly photographic, my understanding is that, in relation to the points that Fergus Ewing has just raised, Mr Crofts talked about using a pack of dogs to flush a fox from woodland to stop the fox doubling back into the wood. It had nothing to do with actually killing the fox. I am sure that what he said was not what Mr Ewing outlined to us, but only the Official Report can settle that.
I am concerned about the use of lurchers to kill wild animals that have not been killed by the shotgun blast or bullet that hit them. It has been suggested that the alternative is to let the animals die a slow death from gangrene. I dispute that assertion on the grounds of humaneness and necessity. I cite scientific evidence from the Burns inquiry in England and Wales. Furthermore—and I apologise for going into this matter in some detail, but as Mr Ewing did the same, it is appropriate that I respond in kind—a larger study of 53 coursed hares conducted by the Universities Federation for Animal Welfare clearly showed that hares do not die quickly but often have to be killed by the dog-handler after being attacked by the dog. If a long dog such as a lurcher cannot kill a hare humanely, it is perfectly legitimate to ask about its chances of killing a fox, which is not only bigger but is much more likely to fight back. I accept that lurchers are frequently used to kill hares and foxes, but the alternative—to which Elaine Smith also referred—of using so-called scenting dogs such as hounds or terriers to track the injured animal so that it can be found and shot humanely is much more efficient.
I am not saying that if a fox or other mammal is shot and limps off into the distance, it must simply be allowed to die—that is not the alternative to the amendment at all. Scenting dogs are far more efficient than lurchers and other long dogs, which simply follow the line of sight. If an animal goes out of a lurcher's sight, the lurcher will not be much use whereas a scenting dog can follow the animal through rocks or scrub. There is a more efficient approach than to use lurchers. The amendment's success or failure will not determine whether the people in hill packs receive P45s. There are other methods.
Amendment 90A does not address the key problem, because killing with one lurcher is no more humane than killing with a pack of them.
I ask the committee not to support amendments 90 and 90A.
I invite Fergus Ewing to wind up concisely, because he has already made many substantive points.
That was delicately put, convener. I will be brief.
On Rhoda Grant's point, the primary purpose of the pack is to flush, but it is not always the case—although it is perhaps mostly the case—that only one dog is used to dispatch. One dog is likely to catch up with a wounded or diseased fox more quickly than the others. We are talking only about a fox that is injured or diseased and therefore weakened and not about a normal, healthy fox.
I disagree with Mike Watson's claim that the alternative does not involve the possibility or probability of much more suffering. Jamie McGrigor rightly said that if a fox is shot, it will limp off, probably into an inaccessible position deep in a wood, and will not be found by anything other than a dog. The alternative of having a period in which the fox is located and shot—possibly a long time afterwards—seems to involve more cruelty or pain rather than less. As the convener said, it is sometimes necessary to use more than one dog in an act of kindness to avoid additional suffering.
We have reached the end of discussion on the group, so I invite Stewart Stevenson to press or withdraw amendment 90A.
I withdraw amendment 90A on the basis that I will return to the subject at a later date.
Amendment 90A, by agreement, withdrawn.
The question is, that amendment 90 be agreed to. Are we agreed?
No.
There will be a division.
For
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fergusson, Alex (South of Scotland) (Con)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Against
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Lochhead, Richard (North-East Scotland) (SNP)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Abstentions
Grant, Rhoda (Highlands and Islands) (Lab)
The Convener: The result of the division is: For 6, Against 3, Abstentions 1.
Amendment 90 agreed to.
Section 2—Exception: control and protection of species
Before we start on section 2, it would help us to deal quickly with the next two groupings if Mike Watson said whether he supports the deletion of section 2, as proposed in amendment 3.
I do.
Amendment 72 not moved.
I will not move amendments 73 to 79, on the basis that, like Mike Watson, I support amendment 3.
Amendments 73 to 79, 23, 80 and 81 not moved.
I apologise if parts of that procedure seem a little strange—sometimes procedure is strange.
Not in your hands, convener.
Flattery will get you everywhere, Mr Mundell.
We come to amendment 3, in the name of Mike Rumbles.
Amendment 3 would leave out section 2. Everyone is agreed that, given what we have done already, it makes sense to leave out section 2.
I move amendment 3.
Amendment 3 agreed to.
Section 3—Exception: retrieval and location
Amendment 82 is grouped with amendment 15. The amendments deal with conditions for the use of a dog in retrieval and location.
In the interests of brevity, I will say simply that most of the relevant arguments have already been heard. The amendment is self-explanatory: it would insert the words "under control" after the word "dog".
I move amendment 82.
I would ask Elaine Murray to speak to amendment 15, but I cannot. Does any other member wish to speak to it?
I would like to speak to Elaine Murray's amendment in her absence, although I think that the ladies to my left—Elaine Smith, Rhoda Grant and Cathy Jamieson—are concerned that I am not a member of the committee.
Any member of the Parliament can speak to an amendment.
The amendment removes the words "above ground". I believe that we established that the use of dogs below ground is essential for the purpose of flushing foxes. Elaine Murray was quite right to lodge the amendment.
Amendment 82 would add the phrase "under control". I note that Elaine Murray's amendment 89 attempts to define that phrase. Does Cathy Jamieson support that definition?
I have not yet heard the arguments that Elaine Murray will make in support of amendment 89.
In that case, does Cathy Jamieson believe that there must be a definition of "under control"?
It is reasonable to think that there would have to be some definition of "under control". We have rehearsed the arguments in earlier discussions and I am sure that people will acknowledge those.
As the definition of "under control" has been the topic of a great deal of discussion, would the Executive be willing to assist the committee in drafting a precise definition? The committee seems to want such a definition in the bill to ensure that the bill does not cause difficulties for people who carry out pest control.
The minister is welcome to answer that question if he so wishes.
I must confine my answer to whether the Executive is prepared to give some assistance. The answer is probably yes, but I do not want to enter into the debate now. Cathy Jamieson is right to say that the proper point for the debate is when an amendment is discussed. I do not want to anticipate arguments concerning how widely or narrowly the definition might be drawn and I am sure that Mike Watson will have an interest in the issue as well.
I understand the importance of the definition. I suspect that the words "under control" will be retained in a series of sections subject to the committee's agreement of the definition. We would want to assist with the drafting of that definition and we will look at other legislative considerations.
As no other members wish to comment, I ask Cathy Jamieson to add any final comments and to press or withdraw amendment 82.
All the comments have been made and I want to press the amendment.
The question is, that amendment 82 be agreed to. Are we agreed?
No.
There will be a division.
For
Grant, Rhoda (Highlands and Islands) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Lochhead, Richard (North-East Scotland) (SNP)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Stevenson, Stewart (Banff and Buchan) (SNP)
Against
Fergusson, Alex (South of Scotland) (Con)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
Abstentions
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
The result of the division is: For 5, Against 2, Abstentions 3.
Amendment 82 agreed to.
Amendment 15 moved—[Mr Murray Tosh]—and agreed to.
Amendment 54 is grouped with amendments 55, 56 and 85. The group deals with the exemption of certain species.
The removal of rabbits from the terms of the bill is a simple matter. I lodged amendments 54, 55 and 56 after crofters and gamekeepers had made strong representations to me. They convinced me that rabbits pose a significant risk to crops on a scale that is not comparable to that posed by hares. Moreover, rabbits are not hunted in the same way as hares are, as they do not sustain the chase but tend to go to ground. That is why it is appropriate to remove rabbits from the terms of the bill. I do not imagine that any member would query that, but I shall listen to their arguments if they do.
Amendment 85 is quite different. I strongly oppose the removal of mink from the terms of the bill. Although we do not have registered mink packs in Scotland, packs occasionally cross the border from England, where mink hunting is quite widespread. I have no doubt whatever that mink hunting is a cruel sport that is ineffective and damaging to other wildlife, notably otters and wildfowl, as the Burns inquiry report mentioned.
The Burns inquiry report concluded:
"There seems reason to suppose … that being closely pursued, caught and killed by hounds, or being dug out or bolted, seriously compromises the welfare of the mink."
Lord Burns had a certain style in explaining things. Nonetheless, the message is quite clear. As I said, research submitted to the inquiry proved that hunting mink for deliberate kill by dogs is ineffective.
We covered some of this ground last week. Several conservation bodies, including the National Trust, do not allow mink hunting on their land if otters are present. The Environment Agency discourages mink hunting if otters and other wildlife may be disturbed.
In cases where mink are a nuisance, which, I accept, is often, we already use a humane alternative: trapping and shooting, with traps being checked every 24 hours. The bill does not prevent the use of scenting dogs or terriers to help to place those traps strategically. The Burns inquiry said:
"research shows that intensive trapping in an area can remove most of the local population."
It is instructive to note that, in the Western Isles, where a serious attempt to eradicate mink has been made, the use of mink hounds is not being considered. I hope that, in the light of those arguments, David Mundell will not press amendment 85.
I move amendment 54.
I regret that I will disappoint Mike Watson, as I intend to press amendment 85. The committee discussed mink and took evidence on the issue. I know of no evidence of mink hunting in Scotland. Mink are a non-indigenous species that have escaped captivity and have gone into the wild. They are a serious threat to Scotland's native wildlife. We have heard evidence that mink are now prevalent throughout rural Scotland, in the south and the north. Dealing with mink is a serious issue and, in my view, amendment 85 should be agreed to so that a programme to eradicate the threat that mink pose to our indigenous wildlife and to livestock can continue.
I support David Mundell's arguments. The number of mink in the Western Isles has increased—they pose an extremely serious problem. Some doubt the future efficacy of the measures that Scottish Natural Heritage apparently believes sufficient to eradicate mink. If amendment 85 is not agreed to, and if its provisions are not included in the bill, one method of controlling mink will become illegal. With respect, I do not agree with Mr Watson's arguments. I am happy to support this important amendment.
I support amendment 85. The other day, I asked Lord Watson whether dogs were necessary to locate mink. I think that he said that they were.
I did.
Evidence from Iceland shows conclusively that dogs are necessary at least to locate mink, so that the mink can be trapped. It is not a good idea to have a lot of civil servants crawling around in the seaweed looking for mink droppings; it is much better to use dogs for that.
I am sure that civil servants would agree. Does Mike Watson wish to comment further?
I am still trying to get that vision out of my mind.
Mr McGrigor was talking about civil servants, not ministers.
Using dogs to locate the mink is another matter. It is instructive that the examples that I gave of the difficulty with mink hunting come from the Western Isles and conservation bodies on both sides of the border. Mink hunting is undoubtedly cruel—a major part of the bill is to reduce if not eliminate cruelty. For that reason, I hope that amendment 85 will not be supported. It adds nothing to the bill.
Amendment 54 agreed to.
Amendment 92, in the name of Mike Watson, is grouped with amendments 61, 88, 16, 93, 17, 83, 83A, 83B and 83C. Although some members might think that amendment 61 pre-empts amendment 88, it does not. Those amendments should perhaps be regarded as alternatives to one another when we come to vote on them.
Amendment 92 is designed to allow shooters to use a retriever to retrieve animals that are shot and injured. Amendment 93 addresses the same point as amendment 16. It seeks to ensure that no animal is left to suffer as a result of its being injured during entirely legal hunting, such as hunting by hill packs. I am grateful to Elaine Murray for pointing out that gap in my original bill. I am not sure what the situation will be subsequent to her departure today, but I hope that she will withdraw amendment 16 and support amendment 93.
Amendments 61 and 88 deal with locating orphaned fox cubs. I do not have any difficulty about dogs locating cubs, but I prefer amendment 88 to amendment 61 because it would provide extra protection for cubs that are incapable of independent feeding. The inclusion of amendment 88 would also mean that people could not use section 3 to justify sending dogs to locate six-month-old cubs. I have already said that I support amendment 83 because it would provide the most humane method of using dogs to kill fox cubs underground, but I am happy with amendment 83B and I oppose amendment 83A for the same reasons that I opposed amendment 91A. I again cite in evidence the Scottish Gamekeepers Association, which said in its written evidence that it approved of the requirement for written permission.
I move amendment 92.
Shall I speak to the other amendments now?
I am happy for you to come back to them later. It is probably better if we do not speak to amendments 83A, 83B and 83C until Cathy Jamieson has introduced amendment 83.
I ask Fergus Ewing to speak to amendment 61 and the other amendments in the group.
Section 3(1)(c) makes it plain that it is not illegal and is a legitimate exception to use a dog above or, now, below ground to retrieve or locate a wild mammal that a person
"reasonably believes is seriously injured".
Amendment 61 would insert "or orphaned". The alternative is to agree to amendment 88. The only difference between the two is that, in amendment 88, Dr Elaine Murray would add an extra provision to include
"an orphaned fox cub incapable of independent feeding."
Agreement to amendment 88 would introduce a test that it would not be possible to satisfy in advance, although it can be argued that the reasonable belief provision provides some comfort. On the whole, amendment 61 is to be preferred because it does not place a gamekeeper or dog handler under an obligation to determine—before instructing a dog to retrieve or locate an orphaned fox cub—whether a cub is able to feed independently and without support. For those reasons, I urge members to support amendment 61 rather than amendment 88.
I would ask Elaine Murray to speak to amendments 88, 16 and 17, but she is not here. If other members wish it, they are welcome to speak to the amendments.
I am not minded to move amendment 88 because I think that amendment 61 deals with the matter. I make that point in case other members, on thinking the matter through, feel that they want to move amendment 88.
We are merely speaking to the amendments at the moment.
Sure, but I want to give members time to think about the matter. I would like to move amendments 16 and 17. Mike Watson said that amendment 93 takes care of Elaine Murray's intention behind amendment 16, but there is something to be said for taking out the words,
"other than as a result of hunting with a dog",
as amendment 16 suggests, given that the distinction is fairly spurious. The important matter is that an injured animal is involved, rather than how the animal came to be injured.
We have had the argument before over amendment 17, which would remove "shot" and insert:
"killed as humanely as possible".
In some circumstances it is impossible to get at an animal to shoot it and people must be able to dispatch such an animal humanely—the humanity of the action counts above all. Amendment 17 is good.
I regret that I will have to move amendment 83, but I acknowledge that a number of animal welfare organisations are concerned about the matter. For example, the Scottish Society for the Prevention of Cruelty to Animals is opposed to the use of dogs below ground, although it acknowledges that such use is humane in certain circumstances. A number of European countries have a close season during which there is a complete ban on seeking out and dispatching lactating vixens. I canvassed the opinions of various committee members, but it appeared that a proposal for a close season would not gain enough support. Therefore, I lodged amendment 83 as the least worst option. That amendment makes it fairly clear that the option would be used only in exceptional circumstances.
I will move amendment 83A. We covered the same ground when we discussed a similar amendment that I moved previously. I have nothing further to add.
We covered previously the use of single dogs to despatch cubs below ground and amendment 83B is in line with that discussion.
On reflection, I support the term "as humanely as possible". I had thought that it was inappropriately vague to be incorporated into the statute and my intention was to make it plain that despatch should be swift, hence amendment 83C would insert the word "quickly". However, on reflection, I believe that "humanely" incorporates or entails "quickly" and for that reason I will not move amendment 83C. The phrase "as humanely as possible" is open to a charge of vagueness, so perhaps the Executive will enlighten us at stage 3.
Can I check something before we move on?
Yes. I am just opening up the debate to other members.
David Mundell said that he would not move Elaine Murray's amendment 88, so nobody has moved it, have they?
The amendment is not moved at this point. I will ask for it to be moved when we come to vote on it.
It was not me but Mr Tosh who said that he would not move amendment 88.
I make it clear that, in the event that amendment 61 is not moved or not agreed to, it would be appropriate to move amendment 88 and I would not be unhappy so to do.
I was about to say that I will move amendment 88. I want to say a few words about that. I am concerned about the word "orphaned". We need clarification about when a cub ceases to be an orphan and becomes a grown-up animal. What is an orphan? An orphan is something or someone without parents. It is a difficult term to define. Elaine Murray's amendment 88 gives some indication of the definition of an orphan.
Does Mr Ewing want to respond to that?
Not really.
Do any other members want to contribute at this stage? Does Mike Watson want to wind up on this group of amendments?
I did not speak to amendment 83C, which I oppose.
Amendment 83C has not been moved.
In that case, I have nothing further to add to what I said.
Amendment 92 agreed to.
Amendment 61 moved—[Fergus Ewing].
The question is, that amendment 61 be agreed to. Are we agreed?
No.
There will be a division.
For
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fergusson, Alex (South of Scotland) (Con)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Against
Grant, Rhoda (Highlands and Islands) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Abstentions
Lochhead, Richard (North-East Scotland) (SNP)
The result of the division is: For 6, Against 3, Abstentions 1.
Amendment 61 agreed to.
Amendment 88, in the name of Elaine Murray—
Mr Tosh is looking at me strangely.
Does not amendment 61 pre-empt amendment 88?
I would like to move amendment 88.
I beg your pardon. Amendment 88 was not pre-empted by amendment 61, as I explained at the beginning of the debate on this group of amendments. However, members should regard the two amendments as alternatives to one another. The question on amendment 88 must be put to the committee, but members should bear it in mind that amendment 61 has been agreed to.
I wish to move amendment 88.
It does not have to be moved.
Can I move it if I wish to?
Yes.
Just before the amendment is moved, is it absolutely clear that amendment 88 has not been pre-empted by amendment 61? It seems to me to be perverse to include both provisions in the bill.
It has been made clear to me that there is no pre-emption. However, it was made equally clear that members should treat the amendments as alternatives and that if both were accepted, the section would not make very clever reading. I ask Elaine Smith whether she really wishes to move amendment 88.
I wish to move amendment 88 because I think it is better to clarify the word "orphaned". The section might not make much sense, but at least it would achieve that.
You are perfectly entitled to move amendment 88.
Amendment 88 moved—[Elaine Smith].
I would like clarification on whether, if amendment 88 was moved and defeated, that would mean that it would not be possible to lodge a similar amendment at stage 3.
I will ask the clerk to answer that.
No. The amendment's being disagreed to would not preclude a similar amendment being lodged at stage 3.
The Presiding Officer might not select that amendment.
In that case, I want to withdraw amendment 88.
Amendment 88, by agreement, withdrawn.
Amendment 16 moved—[Mr Murray Tosh].
The question is, that amendment 16 be agreed to. Are we agreed?
Does amendment 16 preclude—or whatever the word is—amendment 93?
You are quite right to ask that. I should have pointed out that, technically, amendment 16 does not pre-empt amendment 93, although the two amendments are probably best regarded as alternatives to one another. If amendment 16 is agreed to, it would probably not be clever for the committee to agree to amendment 93. Does Murray Tosh think that my advice is wrong?
It depends on what one understands amendment 93 to mean. When Mike Watson spoke to amendment 93, he made it clear that he preferred amendment 93 to amendment 16, but I thought that amendment 16 was a perfectly reasonable way to proceed. Whether amendment 16 pre-empts amendment 93 depends on what one understands section 1(1) to mean.
The fact is that amendment 16 does not pre-empt amendment 93, so we can vote on both. It is as simple as that.
Amendment 16 agreed to.
Amendment 93 not moved.
Amendment 17 moved—[Mr Murray Tosh].
The question is, that amendment 17 be agreed to. Are we agreed?
No.
There will be a division.
For
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fergusson, Alex (South of Scotland) (Con)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Against
Grant, Rhoda (Highlands and Islands) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Abstentions
Lochhead, Richard (North-East Scotland) (SNP)
The result of the division is: For 6, Against 3, Abstentions 1.
Amendment 17 agreed to.
Amendment 83 moved—[Cathy Jamieson].
Amendment 83A moved—[David Mundell].
The question is, that amendment 83A be agreed to. Are we agreed?
No.
There will be a division.
For
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fergusson, Alex (South of Scotland) (Con)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Against
Grant, Rhoda (Highlands and Islands) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Lochhead, Richard (North-East Scotland) (SNP)
Smith, Elaine (Coatbridge and Chryston) (Lab)
The result of the division is: For 6, Against 4, Abstentions 0.
Amendment 83A agreed to.
Amendment 83B moved—[Stewart Stevenson]—and agreed to.
Amendment 83C not moved.
Amendment 83, as amended, agreed to.
Amendment 4 is in a group of its own.
I originally lodged amendment 4 when I wanted the bill to concentrate on the activities of sports that are perceived to be cruel. On the advice of the then Deputy Minister for Environment and Rural Development, the committee decided not to go down that route, so it would be inappropriate for me to move the amendment.
Amendment 4 not moved.
Section 3, as amended, agreed to.
After section 3
We move on to amendment—
Convener, the time is 5 to 5.
I made it plain at the start of the meeting that I wish to get to amendment 94. I wish to press on with that, with members' indulgence.
With great respect, will we have time? It is five minutes before the SNP group meeting is due to begin in this room. I do not mean any disrespect to the convener, but are we really going to get through amendment 94 this afternoon?
I am open to the committee's suggestions. We have two further brief items on the agenda. I am content with the thought that we are likely to complete stage 2 next week. If the committee is happy to move on, I am happy to do so. Is the committee happy to move on?
We should finish this item now and then leave the bill until next week.
That is my view. I made it quite plain at the start of the meeting and nobody raised any objections at that point.
Amendment 94 is grouped with amendment 94A.
I think that we have all agreed that we want the bill to allow genuine pest control to continue. We have admired a lot of the evidence given to the committee by gamekeepers and various other organisations and groups of people who are involved in genuine pest control. The committee has been struck by the adherence to professionalism of people who are involved in genuine pest control. To set themselves high standards, the gamekeepers and others have emphasised time and again that they adhere to codes of conduct that their organisations have produced or have adopted.
Although licensing was originally proposed in the bill, it is generally accepted that that is not the way to ensure that people who are involved in pest control are genuine and are doing a professional job. Codes of conduct offer another route for the committee to go down. When we took evidence from gamekeepers and others on 6 November, they put a lot of store by their codes of conduct. Ronnie Rose from the Scottish Gamekeepers Association said that there is already
"an excellent code that the professionals have kept to and that looks after the welfare of the dogs and the fox."—[Official Report, Rural Development Committee, 6 November 2001; c 2334.]
Thomas Parker from the National Working Terrier Federation said:
"Amendment 53 does not go as far as the National Working Terrier Federation's code; it could go much further and include welfare provisions for the terrier and its quarry."—[Official Report, Rural Development Committee, 6 November 2001; c 2336.]
The committee should recognise the professionalism that has been adopted by individuals who are involved in genuine pest control. We will not be supporting a licensing system, so codes of practice offer a good alternative, in that people who are covered by the exceptions in the bill would have to be members of organisations that have a code of conduct that sets high standards for the welfare of their dogs and for genuine pest control activities.
It is clear that a role for the Scottish Executive would be involved. If codes of conduct were imposed as a condition for exemption from the provisions of the bill, that would have to be administered. The clerk has advised me on the wording of the amendment so that the Executive could play its role in vetting codes of conduct and ensuring that organisations that are to be exempt have their own code of conduct. Somebody would have to carry out that simple function, and the Executive is best placed to do that. I look forward to hearing members' comments.
Do you wish to move amendment 94?
I do not have to move it right now, do I?
Yes—otherwise we cannot debate the group.
In that case, I move amendment 94.
Amendment 94A would amend subsection (2) of the section that amendment 94 would insert after section 3. Amendment 94 would provide a method of recognising organisations, which would ensure that those who perform pest control work are members of reputable organisations, such as the Scottish Gamekeepers Association, the Scottish Hill Packs Association and the NWTF, from which we have heard evidence in abundance.
The NWTF code, which is set out at page 125 of volume 2 of our stage 1 report, is supported by the SGA and the Scottish Hill Packs Association. I am sure that members have read the code of conduct by which members of those bodies abide, which goes into great detail. That is much to their credit. Richard Lochhead's purpose is to recognise the existing situation and perhaps to give those bodies official Government recognition, because at present they do not have that imprimatur for the necessary role that they perform.
I support amendment 94 in spirit, but it has several possible technical flaws. I have identified one in proposed subsection (2), which says that to be recognised,
"an organisation must be formed primarily for the purpose of pest control".
As I understand it, the SGA was not formed for the purpose of pest control. I see a representative of the SGA agreeing with me. The SGA was formed because a need was perceived for a body that would speak up for gamekeepers about legislation that might be brought before Parliament, for example. If I am right, the SGA could not be recognised under amendment 94. I am sure that that is not Richard Lochhead's intention.
It is unnecessary to involve the Government in the minutiae of the code. We should leave the code to the NWTF, the SGA and the Hill Packs Association. I see again some gentlemen from those bodies agreeing with me. The Government does not have a useful role to play in the matter. Last week, Rhona Brankin said that she thought that the Government would not want to be involved in such detail.
Amendment 94 says that the Government would have to be involved if a recognised organisation wanted to change any provision of its code. That would involve a huge procedure of bureaucracy and consultation, so I do not support that part of amendment 94. However, I genuinely support Richard Lochhead's aim of recognising those bodies and recognising their members as performing a useful role. If amendment 94 is not voted on today, I hope that it can be brought back in a leaner, fitter form in future.
I move amendment 94A.
Amendment 94 would significantly narrow many of the exemptions and conditions that the committee has painfully discussed in the past two or three meetings and would negate much of the committee's work. Proposed subsections (2) and (3) would restrict the exemption to people who are busy acting
"primarily for the purpose of pest control".
The amendment does not appear to leave sporting aspects—shooting and falconry—in the realm of exempted activity. That is problematic.
I do not understand why proposed subsection (1) frames the measures to
"apply to a person who is not the owner or lawful occupier of the land".
The provision would therefore not cover people who are operating on their own land. That is strange.
In focusing on pest control, the amendment leaves out welfare and all the stuff that we have just debated about humanely dispatching an injured or diseased animal. It appears to give Scottish ministers much power. It is not sound in law to allow voluntary codes to be written into the law or to allow ministers to negotiate with outside organisations about what the law will say. If Parliament wishes to incorporate a code, ministers ought to issue that code for consultation and present it to Parliament as subordinate legislation for committees and the Parliament to approve. Richard Lochhead does not propose such a procedure, because amendment 94 says that ministers must approve all amendments to an organisation's code.
I am not sure that ministers would necessarily want those powers to be exercised without reference to Parliament. I see the minister shaking his head, so I will say no more and let the convener call him to speak. Incidentally, my comments apply even more to amendment 94A, because it seems to destroy many of the exemptions that we have agreed in the past two or three weeks.
At this point, I would normally ask members whether they wanted to speak, but it might be helpful for the minister to respond now.
Thank you, convener. It is always slightly concerning when consensus emerges among Fergus Ewing, Murray Tosh and myself; it is a bit late in the afternoon for that kind of controversy, which may disconcert other committee members.
I invite the committee to reject amendments 94 and 94A. The committee knows that there are a number of pest control organisations and, as Fergus has properly pointed out, organisations that engage in pest control but were not necessarily formed for that exclusive purpose. A range of those organisations have demonstrated to the committee a great degree of expertise. Indeed, the expertise lies there, rather than with ministers. The evidence that those organisations have given has been compelling.
If a body in any sphere of activity demonstrates a degree of competence, we should not then introduce an element of ministerial control over it. There is no need for ministers to give their imprimatur. The Executive should not be placed in a position where it is required to agree to and then police pest control activity. The bill as amended will set out the permissible exemptions. It will then be up to the Crown to examine the facts of any particular activity to determine whether it is legal.
Pest control organisations already adopt excellent codes of conduct. It is not the responsibility of ministers to determine whether those codes should be part of primary or secondary legislation. Amendments 94 and 94A are an unnecessary step. The evidence that the committee has heard has shown that those organisations are capable, do a good job and, in many cases, have adequate codes of conduct. Ministers should not prescribe how they should take effect.
I was surprised to hear the minister reject the idea of devolving responsibility to these organisations—whose valuable role in the countryside we recognise—and try to retain that responsibility in Parliament. However, his remarks are probably directed at the detail of amendment 94 rather than at the sentiment behind it, which is to entrench the position of, and acknowledge, the contribution of various organisations that work in the countryside. Even if we do not feel at this stage that this proposal is the right way of doing that, we should certainly return to the issue at a later date. The understanding embedded in the codes of conduct of the various organisations represents the best practice in managing the countryside. The amendment has appeared on the marshalled list today simply because of the difficulties that we have had in wrestling with the idea of any individual being permitted to undertake these activities even though we acknowledge that training and discipline are required to undertake them.
I have a fair amount of sympathy with amendment 94, but I do not think that it is quite right. For instance, it says that a person who is
"not the owner or lawful occupier of the land … must be a member of an organisation recognised for the purpose".
That would preclude people who may be neighbouring farmers or crofters from assisting others to dispatch foxes and other pests. Under subsection (2) of the section that was introduced by amendment 53, such a person would hold a firearms or a shotgun licence. That provision should apply to the whole bill. That would be better than the new section proposed in amendment 94. Although I am sympathetic, I cannot support amendment 94 as it stands.
I hope that Richard Lochhead, Stewart Stevenson and Fergus Ewing will forgive me, but it is remarkable that we have reached the stage that all three of them agree and everybody else seems to disagree.
Amendment 3, which was agreed to earlier, got rid of licensing regulations. However, Richard Lochhead seems to be proposing exactly the same thing through a different route. The minister and other members' comments that we should not vest in the Government responsibility for the detail of codes of practice of organisations such as the Scottish Gamekeepers Association were appropriate. Fergus Ewing's initial comments were absolutely apt. As we all know, members of the Scottish Gamekeepers Association are wildlife managers and conservationists. Their code of conduct does not, first and foremost, deal with pest control and it is inappropriate for it to be used. To give credit to Richard Lochhead, he has shown consistency, as he has persisted with a proposal for a code of conduct all the way through the proceedings.
I disagree with the approach that Richard Lochhead has taken on the amendment and urge members to vote against it. I hope that Richard will withdraw amendment 94.
Another unusual alliance is for Mike Rumbles and Ross Finnie to agree.
You might think that, Mr Mundell, and it is duly noted. I am sure that they could not possibly comment.
However, in previous discussions in the committee, it has been set out that people who are exempted from the provisions of the act are not necessarily people who are engaged in pest control. We have had assurances that dog walkers are not covered by the measures in the bill. I am not aware that there is a national association of dog walkers, but our colleague John Young might put me right on that.
As Murray Tosh alluded to, a number of other people, who are engaged in sport and other activities that are clearly exempted, are not covered in Richard Lochhead's amendment 94. That would lead to difficulties over and above those that have been raised by other members.
I am surprised that Mr Lochhead has lodged amendment 94 as, on reading through it, it seems that it gives control of the activity to a Government department. In most of the evidence that we have taken to date from professional organisations, that was one of their main objections. They said that another over-burdening provision would be a requirement for licences for nearly all the activities that they currently undertake free of intervention or prohibition.
Members should not support much of what is in amendment 94 as it is fraught with danger. Proposed subsection (1) refers only to the
"owner or lawful occupier of the land".
Anybody else who undertakes an activity on the land would require documented proof of approval for the activity that they are undertaking. As Rhoda Grant pointed out, in much of rural Scotland, and in particular the Highlands, shepherds and gamekeepers regularly bypass neighbouring estates as they go about their lawful activity. At all times, they are prepared for any eventuality. I am sure that if they were to see a fox or any other mammal, albeit on a neighbouring estate, if they were given the opportunity to take it out, I am sure that they would do that. Under amendment 94, they would have committed an offence if they did so.
I point out to Jamie McGrigor that some of the activities that individuals such as me get up to on occasions would require lawful permission. That is absurd and I would not be happy to support this amendment at all.
Thank you. If no other members wish to speak, I will ask Mike Watson to wind up.
I have nothing further to say.
Minister, would you like to comment?
I am sorry that David Mundell has left. I can understand why, as a Tory, he is unfamiliar with the concept of inter-party agreement.
Sometimes you can take a joke too far, minister.
It is at moments such as this that I regret the neutrality of the convenership.
Before he left the room, Fergus Ewing intimated that he did not wish to press amendment 94A.
Amendment 94A, by agreement, withdrawn.
I am overwhelmed by the unanimous support from members for this amendment. It was a popular amendment that obviously exercised people's minds. The message of the amendment is clear. There is a hope that gamekeepers and everyone else who is involved in pest control will adopt codes of conduct and abide by them. There should be a system of self-licensing in the sector rather than having the Government license the sector. However, I recognise that there are a few holes in the amendment and I will therefore be happy to withdraw it and lick my wounds.
The amendment allowed us to have a useful debate and I thank you for that.
Amendment 94, by agreement, withdrawn.
I point out to members that there is a distinct possibility that we will conclude stage 2 next week. This Friday is a parliamentary holiday, so any amendments referring to the remainder of the bill should be lodged by 2 o'clock on Thursday afternoon.