National Parks Strategy (PE1556)
Good morning, everyone, and welcome to the ninth meeting in 2015 of the Public Petitions Committee. I remind everyone to switch off their mobile phones and other electronic devices as they might interfere with the sound system.
We have received apologies from David Torrance.
Item 1 is consideration of three new petitions. The committee will hear from each petitioner. Unfortunately, the first petitioner has been delayed, so we will move to PE1556, by John Mayhew, on behalf of the Scottish Campaign for National Parks and the Association for the Protection of Rural Scotland, on a national parks strategy for Scotland. Members have a note by the clerk and the Scottish Parliament information centre briefing.
I welcome the petitioner, John Mayhew. He is accompanied by John Thomson from the SCNP and Charles Millar from the APRS. I invite Mr Mayhew to speak to his petition for up to five minutes, and we will then move on to questions.
Thank you for inviting us to give evidence today. As you say, convener, I am joined by Charles Millar, the chairman of APRS, and John Thomson, the honorary secretary of SCNP. They represent each of the organisations that form the partnership that has lodged the petition.
I will give the committee a quick recap of the historical background to show how we arrived at where we are today. Our two organisations campaigned for many decades to have national parks in Scotland, and we were successful with the passing of the National Parks (Scotland) Act 2000 and the establishment of the first two national parks in 2002 and 2003. Since then, we have argued for more.
We started a more formal joint project in 2010, which culminated in our report “Unfinished Business: A National Parks Strategy for Scotland”, which I think all members have just been handed a copy of; I have certainly given copies to the clerk for you. The report sets out our case in full.
If I were to summarise our case, I would say that it comes back to Scotland’s landscapes, which are among the best in the world. Despite that, we have only two national parks. National park status is recognised across the world as the best way of protecting and designating our best landscapes. The first two national parks have achieved a great deal in their first decade. They inspire pride and passion among local people and visitors. However, other outstanding landscapes in Scotland are also worthy of national park designation and there is local and national public support for that. Having more national parks would bring additional resources to those areas, strengthen Scotland’s international standing in environmental protection and support our crucial tourism industry.
We have made some good progress, but we feel that Scotland is now lagging behind other parts of the United Kingdom in national park designation. For example, 7 per cent of Scotland is covered by national parks compared with 20 per cent of Wales. We feel that we are missing out on the benefits and opportunities that more national parks could bring, which is why the Scottish Government should prepare a strategy to designate more national parks.
As the note that the committee has been given observes, debates on the subject were held in Parliament in 2008, 2009 and 2013. Many members of the Scottish Parliament praised the work of the two existing national parks and some MSPs called for more to be designated.
We also have local support. We are pleased to note that many of the 1,000 or so people who signed our petition are residents of the areas that we have identified as being suitable for national park status, and many of them made supportive comments. In 2008, a clear majority of the residents of Harris voted for national park status in a referendum, but it has not come to pass.
We are in touch with local supporters in several areas who are keen to work with us. We feel that consideration of more national parks could support the current efforts by the Parliament and the Government to promote community empowerment.
We feel that national parks bring real benefits to Scotland. Obviously, there are environmental benefits through the protection of landscapes and habitats, but there are also socioeconomic benefits such as job creation and benefits for the tourism industry. We have been working a bit more on the socioeconomic benefits and we recently published a report called “The Socio-economic Benefits of New National Park Designations in Scotland”, which I can leave with the committee. It sets out what we think the benefits are in rather more detail.
Our proposals are widely supported by other organisations including, for example, the National Trust for Scotland and the Scottish Wildlife Trust, so although we are leading the campaign, plenty of others agree with us.
Turning to possible action, I note your clerks’ suggestion that you might consider writing to the Scottish Government and to Scottish Natural Heritage about the issue. If you felt that that was appropriate, we would certainly support it, as that would help to generate the sort of debate that we seek on the issue.
That is all that I have to say for now. We are all very happy to answer any questions.
Thank you very much, Mr Mayhew. I will start the questions. Which areas would you highlight as candidates for national parks and what arguments are there in favour of those areas?
If members have the “Unfinished Business” report in front of them, they will see that, on page 28, there is a map that summarises that most clearly. When we wrote the report, we were really setting out the principal argument that there should be more national parks and that it is the Government’s place to carry out an assessment and prepare a strategy on where those places might be and in which order they should be designated. However, we also felt that we needed to put our cards on the table and say where we thought the national parks should be. Therefore, after long discussions in our organisations, we highlighted seven possible areas that we feel all have fantastic habitats and wildlife and that would benefit from the additional input and integrated management that national park status can bring.
Those are our seven proposed areas, and we would be delighted if any of them was designated as a national park. However, we are non-Government organisations, and that is merely our proposal, so the map has no official status at all; it is simply born out of long experience and knowledge of the areas concerned.
I have three small questions. First, who funded the publication?
The funders are listed on the inside front cover. It was a range of charitable trusts. We carried out some fundraising beforehand. As well as funding the report, that funded the research and consultancy work that led up to it.
My second question is about the Isle of Harris. You said that you have not been able to convince the Scottish Government on that. What was the Scottish Government’s reaction to that particular proposal?
My memory of what happened at the time is that the local people of Harris set up a group called the Isle of Harris national park study group, which commissioned research, carried out a feasibility study and organised a referendum, which, as I said, ended up with a clear majority of people voting and a clear majority in favour. The group then sought the support of its local authority—Western Isles Council—to help its case. The council carried out quite a bit of research, including seeking evidence and carrying out site visits. Ultimately, the debate that took place in the full council was inconclusive, so the council agreed neither to support nor oppose the proposal, but to pass the decision to the Scottish Government.
The Scottish Government at the time was not willing to proceed without local authority support. However, the National Parks (Scotland) Act 2000 does not say that a proposal has to have local authority support. Obviously, it is preferable if it has that, but there is no legal requirement for it.
I ask John Thomson whether I have remembered that correctly.
Yes, that is certainly my recollection of the matter. I will make one further comment on local authorities. I think that there is only one case in the UK of the creation of a national park having been favoured by the local authority. Interestingly, that was the Loch Lomond and the Trossachs national park, which had a history as a regional park that had been set up by the local authorities in the first place. Local authorities’ opposition to the establishment of national parks is a well-established tradition.
During the debate on the Western Isles proposal, some Western Isles councillors were not in favour of the designation because they felt that it would prevent development. In our view, they were wrong—we feel that national parks support sustainable and appropriate development and do not prevent development, but that was their perception. Other councillors queried why the proposal was limited to Harris and suggested that Lewis or the whole of the Western Isles should be included. There were boundary issues as well as issues of principle. That is a very brief summary of my memory of that debate.
My third question is about the commitment in the SNP’s manifesto. In the report, you have gone as far as 2013, but we are in 2015. Has there been any progress or do you feel that the Government is sitting on its hands on the issue?
As far as I am aware, there has not been any progress on implementing that manifesto commitment, which is quoted in the report. It states that the SNP will
“work with communities to explore the creation of new national parks.”
We welcomed that commitment, as we thought that it was entirely appropriate for the Government to “work with communities” rather than say that it would create more national parks. However, as far as I am aware, there has not been any progress on that. That is disappointing for us, and we will ask all the political parties to put a commitment to more national parks in their manifestos for the election in a year’s time.
Why do you think local authorities are opposed to national parks? Is it because they might prevent future development in the areas?
I will answer first and will then ask my colleagues whether they have anything to add. It is not so much what you suggest. Local authorities sometimes fear loss of power, control or influence, particularly over planning. Although national parks are not just about planning, a lot of the controversial debates that take place in national parks—as in other parts of Scotland—are to do with planning applications and proposed developments. Local authorities are used to being the planning authorities for their areas, and when a national park is set up, those planning powers can be transferred to the national park authority or can stay with the local authority. The 2000 act is commendable in that it is flexible and provides different governance models.
In the Loch Lomond and the Trossachs national park, there is a full planning authority that makes the forward plans and also determines planning applications. The situation is different in the Cairngorms national park, where the local authorities have retained planning powers. That was negotiated at the time of the park’s creation, when the local authorities were unwilling to give up—as they saw it—those planning powers. Nevertheless, the national park authority has a right to call in for its own determination any applications that it feels are concerned with the special qualities of the national park. Small householder extensions to individual dwellings would clearly be the province of the local authorities, but an application for a major housing development, hotel or recreational development would clearly be relevant to the national park authority and it would call that application in.
The concerns revolve around planning, but there are ways in which local authorities can still be involved in planning in the national parks. Indeed, under the legislation, the majority of the board members are either representatives of the local authorities or directly elected local people, as is right. Therefore, even if planning powers are transferred, the people who hold those powers are predominantly local residents.
I will just check with my colleagues whether I have missed anything.
No, you have captured the situation.
I would just add that, as we mention in the report, there is a distinction to be drawn between national parks that lie wholly within the territory of a single local authority—that was the case with the proposed Harris national park—and those that straddle the boundaries of more than one local authority, as the two existing national parks do. Although straddling boundaries can give rise to some problems, one can see the justification for a separate national park authority more readily where that applies than where the national park lies within the territory of a single local authority.
We address that issue in the report and make the point, which is important in the Scottish context, that there is flexibility in the legislation to enable the precise governance arrangements to be tailored to the circumstances of a particular area. We therefore see the arrangements for somewhere such as Harris as being rather different from those that apply in Loch Lomond and the Trossachs.
10:15
I want to explore two themes, the first of which touches on the issue that you highlighted in your previous response; indeed, you might well have covered it already. As you have said, we have been slower to evolve national parks in Scotland. Because they have evolved elsewhere and internationally, there might be an expectation in the public mind of what a national park is. Might the wholly variable and flexible arrangement that you referred to be, in fact, an obstacle, in that it could create complications and variations and raise expectations in people’s minds with regard to what is meant by the term “national park”, only for their support and will to be lost along the way when the arrangement turns out to be complicated to implement?
The term means different things to different people across the world, but the crucial advantage of what I suppose we would call the brand is that it is recognised worldwide. It is the only designation that everyone in the world has heard of. If I went on holiday to, say, Italy, I would seek out the national parks to visit because, in my experience, they are likely to be spectacular places with wonderful wildlife and, crucially, they will have a system for warmly welcoming visitors and helping them to get the most out of their visit. The same applies to visitors to Scotland. When people come to Scotland, they ask, “Where are the national parks?” and then they head for the Cairngorms and Loch Lomond and the Trossachs. That is wonderful, but we would like the benefits to be spread to other places that merit them.
We have to remember the basic concept of a national park: it is a special area and should be managed in a special way. It is worthy of extra national resources, and all the complexities of managing it are subsidiary to the basic idea that it is an internationally famous place that Scotland can be proud of, that we are really trying our best to look after it and the people who live there and that we welcome visitors to it.
People have different expectations and understandings of the term “national park” across the world, but there are reasons for that. It is important that we remember the basic principle.
So the interpretation of the term varies a lot. If I needed, say, a keyhole gall bladder operation, I would probably get the same thing all over the world, but a national park can be different, depending on the circumstances.
What financial model underpins national parks, particularly the two that we already have? By extension, have the national parks and the model that they operate under been successful? What financial model ought to underpin national parks, and is it politically controversial and an obstacle to their establishment?
The national parks in Scotland are 100 per cent funded by the Scottish Government in recognition of their national importance. I like to say that they are nationally funded but locally controlled.
The majority of the authority that runs the national park, takes the decisions and approves the national park plan is, as I said, made up of local councillors and directly elected local people, but there are also national appointees to represent the national funding and the national interest. I therefore do not think that the model is an obstacle, but the provision of the money might well be, because the proposal would involve additional expenditure. That is a matter for the Scottish Government to determine amongst its other priorities.
We would say that this is relatively good value for money. The joint budget for the two existing national parks is approximately £13 million a year—
Has that been consistent throughout?
It has been broadly consistent, but I should point out that the national park authorities are also very good at adopting what they call shovel-ready projects. They always have, say, a visitor centre that they would like to build or a village hall that they would like to do up, and, in my experience, if the Government finds some extra money towards the end of the financial year or from some unspent pot, the national park authorities are the first to put up their hands and say, “We can spend that money to benefit our local area.”
I stress the point that John Thomson made, which is that future national parks are more likely to be wholly within one local authority area and to be smaller in scale and expenditure than the two existing ones, which are quite large and complex and involved arrangements among three or five local authorities to bring them together. The ones that we propose would either be wholly within an existing local authority area or, at the most, shared between two local authorities. They would generally be smaller in area and population, so their budgets would probably be substantially lower than those for the existing national parks.
For example, a feasibility study that was done in 2008 for a Harris national park reckoned that it could be run for approximately £1 million a year. Please do not think that, just because the two existing national parks cost about £13 million a year to run—although we think that that is good value—additional expenditure of that order would be required for every other national park.
Thank you, Mr Mayhew, for the copy of your report. Unfortunately, it arrived in front of us just as we sat down. It will be useful to have a good read through it. I would also be interested in getting a copy of the socioeconomic report that you have produced in relation to national parks, to see the benefits that it suggests.
We will send you a copy.
Jackson Carlaw asked about Scottish Government funding for the existing national parks. During your opening remarks, you referred to additional resources coming into the designated areas. Are you talking about additional resources coming solely from the Scottish Government or from other areas? It would be useful to understand whether a designation would rely solely on Scottish Government funding being made available.
Again, I will give you a quick answer and invite comments from my colleagues.
Predominantly, I mean additional Scottish Government resources coming in to the areas in recognition of their national importance for wildlife, landscape, recreation, tourism and so on. However, national park authorities in Scotland and elsewhere have proved themselves adroit at putting together project funding proposals that lever in funding from elsewhere—for example, from the Heritage Lottery Fund or the European Union. They are quite good at doing that. National funding from the Scottish Government could act as seedcorn funding to bring in other funding. Obtaining funding in that way is not unique to national parks. I acknowledge that local authorities and other agencies can do it as well, but it is something that national park authorities have shown that they are able to do.
My colleagues might want to add to those comments.
I will add a point on why national parks are able to do that. What a national park has that a lot of other designations—for example, the geoparks that we have in some parts of the Highlands—do not have is dedicated staff who are employed, in effect, on a permanent basis. That means that there are people there who are in a position not only to get to know the area, its needs and the opportunities there but to go out and seek the additional funding that we are talking about. That is critical, because if there is short-term funding for the staff themselves, as there is in quite a lot of the other designations, they spend most of their time looking for money to support the continuation of their posts beyond the two or three years for which they have been appointed in the first instance. Having a small body of core staff with a reasonable degree of permanence is critical to being able to generate a lot of wider benefits.
Thank you for that response, Mr Thomson. One of the reasons the Scottish Government has given for not creating more national parks is the financial issue of revenue and capital funding in the context of the reduction in the Scottish budget since 2008. It would be useful to know whether there have been any discussions with the Scottish Government about the provision of what Mr Mayhew described as seedcorn funding to allow national parks to be created and to allow new national park authorities to seek resources from elsewhere. A number of charitable organisations such as the Big Lottery Fund might be prepared to invest in and fund projects if an area was designated as a national park, which could reduce the financial burden on the Scottish Government and allow us to achieve what you seek to achieve through your petition.
That is a positive proposal. The things that cost money from revenue and capital funding are the creation of the national park authority, the employment of staff and the finding and running of premises. At this stage, we are calling for the preparation of a strategy on whether we should have more national parks and, if so, where they should be. I am not so naive as to believe that that would cost nothing, but the work would cost comparatively little because it would be carried out broadly by officials within existing staff time.
We see that as a priority. It is up to the Scottish Government to assess the proposal against its other priorities, but the preparation of a strategy, which is what we seek, could be done at relatively low cost and could feed into the sort of model that you propose.
You have already done some work for the report that you produced. If the Government took that forward, it would greatly assist it in coming to some conclusions about the best way forward for the creation of more national parks.
Yes. We very much hope that our report will be considered as a positive contribution to any future debate.
That also applies to the report that we produced on the socioeconomic benefits and further reports on the theme that we have in the pipeline.
Will you tell us about those other reports? We have “Unfinished Business: A National Parks Strategy for Scotland”, but you mentioned a socioeconomic report. What other reports are in the pipeline that might be of interest to the committee and the Parliament and might help to influence the Scottish Government to move on the matter?
From the Ramsay report in 1945 right through to the present day, including the example of Harris, there has been a clear indication by the general public that people would like more national parks to be created, but there seems to be a reluctance to move the agenda forward in Scotland. I am talking not just about the present Government but about previous Governments. It would be useful to know what other reports you intend to commission and take forward that will help with the wider debate and with getting national parks established.
Indeed. We stand by “Unfinished Business: A National Parks Strategy for Scotland” as our principal report and the main summary of our case. Since it was published, we have been thinking about what I could call subsidiary topic papers or issues papers on specific aspects of the debate. The paper on socioeconomic benefits is the first of those, and I will make that available to all of you. The other two papers that we are considering publishing are on governance models and the importance of national parks to the tourism industry.
In the governance report, we try to unpick to a certain extent something that we have talked about this morning—possible models for national parks. A national park in Scotland does not need a £10 million budget, 50 staff and a board of 23 people; it could have a £1 million budget, five staff and a board that is a sub-committee of a local authority. It would still be a national park under the 2000 act because that legislation is so flexible. We are going to propose that, and we are particularly keen to stress the tourism benefits that national parks bring. As well as bringing job creation and financial benefits to an area, they have benefits in providing a service to visitors to Scotland.
Although we do not have a firm plan for doing so at present, another area that we might wish to cover is the role of national parks in planning, based on the experience of existing national parks both in Scotland and elsewhere. There is a perception that the chances of getting permission for a development are significantly lower in a national park than elsewhere, but that is not borne out by the experience, which suggests that the success rate is pretty much the same and possibly even a bit higher in a national park. However, that does not necessarily mean that someone will get permission for quite what they would get permission for elsewhere, because there is a role for the national park in guiding people who have developments in mind to ensure that those developments are, in quality and character, appropriate to the park.
Thank you.
It has flippantly been suggested that almost all of Scotland could be a national park. You have suggested an additional seven national parks. Is there an optimum or maximum number of national parks? Do you see any detriment to areas that are adjacent to national parks or to areas that may be equally scenic but are not, or would not be, classified as such?
10:30
We feel that anything up to seven would be the right number, which is why we suggested that, although even one more national park would be wonderful.
It could be argued that the place that always comes up in the expert reports but that has not yet been designated is the Ben Nevis-Glencoe-Black Mount area. It could also be argued that there is a strong case for having a national park in the south of Scotland, because this is not just a Highlands and Islands issue. That would point towards Galloway or the Cheviots. It could be argued that the place where there is clear and proven local support is Harris and that, therefore, that should be the next national park. I could make a case for any one of the seven areas.
Regarding the maximum number, there would come a point at which the benefits that we have described would cease to apply. We feel that additional benefits could be brought to those places with more national parks, but the argument against designating the whole of Scotland or the whole of the north-west as a national park is that it would dilute those benefits so much that it would not be worth doing. We have said that there should be at least seven new national parks. We would not rule out any more, but that is heading towards the maximum number for the reason that I have set out.
The issue of the areas around national parks is crucial. For example, if a national park excludes certain types of development that it considers inappropriate, it is possible to imagine that those developments are more likely to take place in the areas around the national park. It could equally be argued—studies in the north of England have shown this—that national parks bring benefits to areas that are just outside them, as people who are engaged in fishing, cycling, golf or whatever in the national park might stay in towns and villages that are outside the national park. That brings benefits not just to the area within the boundary but also to what might be called the gateway communities. Once you start designating an area for anything, you immediately come up with boundary issues. However, if you accept—as our society has—that some places are more special than others, for reasons to do with the landscape, wildlife or cultural heritage, it is more important to designate those areas and to manage them positively than it is to worry about the boundary effects.
The boundary effects have to be tackled, and the existing national park authorities have been working with communities just outwith their boundaries to ensure that the disadvantages are minimised. In any case, I think that the advantages outweigh any disadvantages.
On the issue of whether there is a ceiling on how many national parks there should be, I think that it is better to think in terms not of the number of parks but of the proportion of the land area of the country. That goes back to something that John Mayhew said in his introductory remarks.
It is generally recognised that the landscapes in Scotland are, by international standards, of a very high quality. Therefore, people would expect the proportion of national parks in Scotland to be at least equal to what it is in Wales. If we put the national parks in Wales together with the areas of outstanding national beauty, which are of similar landscape quality although they have slightly different arrangements for management, we are talking about roughly 25 per cent of the country. Funnily enough, the proportion is roughly similar in England. It is not unreasonable to say that we might be talking about something like a quarter of the land in Scotland.
My second point concerns what John Mayhew said about the surrounding areas. If our national parks are dotted quite widely around the country, people will have to travel through lots of other parts of the country to reach them and, when they do that, they will realise just how good those other parts are. Having magnets dotted around like that would be a way of promoting the rest of the country as well.
You mentioned the management structures in Wales. Did you say that the national park management structures in Wales are different from those in Scotland?
No. There are marginal differences, but they are essentially the same. I was talking about the management structures of the areas of outstanding natural beauty, which are more like our national scenic areas. They have different arrangements. They are more clearly local government controlled, but they have real management structures that we do not have for the national scenic areas in Scotland, with the exception of the three in Dumfries and Galloway. We are currently being quite heavily criticised for that by some of the international organisations that are concerned with these issues.
The Scottish Government has said that it has no current plans to designate further national parks in Scotland. Is that because you have been unable to convince it that national parks should be seen as opportunities rather than obstacles? Might you have some other work to do?
I really wish that I knew why the Scottish Government does not want to designate more national parks. Obviously, we are committed to and passionate about the subject, but we have not convinced the Government. However, we will carry on trying to do so, because that is what campaigning organisations do. It would be worth hearing from the Government why it has not agreed to do that.
The reasons that we were given most recently are, I think, mentioned in the committee’s papers. One is to do with concerns about financial commitments. That is a matter for Government spending priorities and we think that national parks are a priority. The other reason is that the Government does not wish to raise expectations in wider areas about a process whereby not everywhere will end up being a national park. However, we feel that it is good for a Government to raise expectations of something positive happening. Most people understand that, if expectations are raised about something happening, it might not happen in every area.
We do not think that either of those reasons is a good reason for failing to move forward, but we clearly have work to do in continuing to try to persuade the Government. That is why we submitted the petition and sought support for it and it is why we are pleased to be able to discuss it with the committee.
In connection with the previous question, it might be worth pointing out that, in the most recent debate in the Parliament on the issue, which was in May last year, the Scottish Government suggested that it would be preferable to concentrate on the two existing national parks, given the current financial climate. However, it did not rule out a further designation in the future.
I have been skimming through the “Unfinished Business” document. Section 6 states:
“In 2009 the Scottish Government announced that it would establish a ministerially chaired National Parks Strategy Group”,
which has not materialised yet. Have you had an indication from the Scottish Government of why that has not happened yet?
I am sorry, but we have not. All that we know is what is in one of the papers that the clerk has helpfully provided to the committee. The paper quotes the minister’s reply, in 2010, that the group’s establishment had been delayed
“until after the next spending review.”—[Written Answers, 23 June 2010; S3W-34567.]
We have not heard anything since then.
As there are no further questions, I ask members what action they seek to take on the petition.
I am keen to ascertain why the Scottish Government has not taken any action despite a manifesto commitment and, more important, what is preventing the Scottish Government from participating. I do not want to criticise the Scottish Government, but the issue is important so we need to try to find ways of moving forward. If the Scottish Government has an issue with resourcing, perhaps we can explore possibilities of finding the resource elsewhere and allow volunteer groups to assist the Government in identifying resources so that we can physically move forward. To drag our feet for such a long time is unhelpful at best.
I agree that we should write to the Scottish Government to find out what is happening. In particular, we should ask what happened to the national parks strategy group that was part of the recommendations from 2009. We are now six years on and it would be useful to find out where the Scottish Government is on that.
We should ask the Scottish Government about the sustainability of the existing national parks. If there is an issue about revenue and capital funding, it would be useful to get an indication of the Government’s views on sustainable development and the sustainable future of the national park authorities in Scotland. We have heard evidence today that a national park could be set up for £1 million—that was Mr Mayhew’s figure—which is a lot less than the £13 million that is being spent on the national parks at present.
We should also write to a number of organisations that might be interested and that could assist us in taking forward the debate. I declare an interest in a couple of them. They are the Scottish Wildlife Trust, the John Muir Trust, RSPB Scotland, NFU Scotland and the Scottish landowners association. They all have a role, as do many others, in trying to determine the best areas to be designated as national parks. That goes back to my earlier point that a number of organisations can bring resources with them. Additional resources, over and above what the Scottish Government might contribute, would help to deliver more national parks in Scotland.
I agree that we should write on the points that have been raised. We should also write to SNH, the Scottish Campaign for National Parks and the Association for the Protection of Rural Scotland. I also suggest that we write to the Rural Affairs, Climate Change and Environment Committee, just to keep it advised and informed about the petition.
Do members agree to the suggestions?
Members indicated agreement.
I thank Mr Mayhew, Mr Thomson and Mr Millar for attending.
I suspend the meeting for a couple of minutes to allow a changeover of witnesses.
10:41 Meeting suspended.Perverse Acquittal (PE1562)
The next petition is PE1562 by Alan McLean on perverse acquittal. Members have a note by the clerk and a Scottish Parliament information centre briefing. I welcome to the meeting the petitioner Alan McLean, who is accompanied by Steve Keicher, and I invite Mr McLean to speak to his petition.
Thank you, convener.
I would like to bring to the committee’s attention certain information. As some of you might be aware, on 28 May 2011, we lost our precious son to knife crime. It is every parent’s worst nightmare; no parent should outlive their child—and especially not when that happens because of knife crime. The devastation, the everlasting pain and the emptiness will remain with us for the rest of our lives. That change to our normal family life has been forced upon us because of someone else’s intent, actions and wrong choices, and it can happen at any time, anywhere and to anyone.
Since our tragic loss, we have focused our energies on building a strong and self-funded anti-knife crime campaign team who have campaigned endlessly for tougher sentencing. The anti-knife crime message has been taken into many primary and secondary schools in Fife with the support of Police Scotland in the hope of changing people’s mindsets and to raise awareness of the consequences and impact of knife crime on our younger generations.
10:45As the father of a murdered son who never received any form of justice for his loss and as a result of our own devastating circumstances and experience, I have taken a personal interest in the subject of perverse acquittal. With the support of my colleague Steve Keicher, who is our anti-knife crime campaign chairman, I have explored avenues to see what positive improvements we can propose to our current system, and we now propose a limited exception to the rule that a jury verdict of acquittal in any criminal case be treated as final. In any murder case—and possibly in cases involving other serious crimes—where the judge, after consultation with counsel and in light of all the evidence, comes to the view that an acquittal was perverse, he or she should have the power to request that the case be reviewed by the court of appeal.
A perverse acquittal is an acquittal that no reasonable jury could have decided on from the evidence that was before it. The question is: if the court of appeal reviewed a case and decided that a retrial was warranted, should the retrial include a jury, given that a similar situation could reoccur, or should it be heard by a panel of judges? The judge would operate on the basis of reasonable doubt about the jury’s verdict. The perverse acquittal proposal would therefore provide a new control measure for judges, although the judge’s word would be final on the law and the jury’s word final on the facts. The process would be used by the judge only when he or she thought that the verdict was not simply wrong but perverse and would give the judge the power to intervene and forward the case to the High Court of Justiciary.
The perverse acquittal proposal is perfectly consistent with the view that the criminal justice system should continue to acknowledge that, if the jury system is to have meaning and value, jury decisions must be respected when they seem wrong as well as when they seem right. Furthermore, far from opening a set of floodgates to innumerable challenges, the proposal is highly restricted. Perverse acquittal should apply only to the most serious crimes—quite possibly only those in which a life has been taken—and to acquittal verdicts that no reasonable jury could have reached on the evidence before it.
Some might doubt what would otherwise seem to be common sense, which is that the more serious the crime, the more compelling the need to ensure that the outcome is procedurally and substantively right. The overriding objective must be to convict the guilty—for example, where the perpetrator has admitted to the crime and there is overwhelming evidence to support the case—and to acquit the innocent. However, it seems hard to argue against the public interest view that evidence that very serious criminals have wrongly escaped conviction might indicate that there is a danger to the public and might shake the public’s confidence in the system.
The jury evolved during the 15th century as an essential part of the legal system and has remained with us to the present day. The fact that the jury element of trials has stood the test of time has led to a feeling of acceptance in society that having a jury is the best way to decide on the outcome of indictable offences. However, as I have stated, sometimes the jury gets it right and sometimes it gets it wrong, and our current system has a responsibility to ensure that truth, trust, and—most important—common sense prevail at the end of the day.
Our current jury selection process is basically like a lottery. There are three requirements in the selection criteria for jurors: first, the person’s name must be on the electoral register; secondly, the person must be aged between 18 and 70; and thirdly, the person must have lived in the UK for five years since their 13th birthday. Those are the criteria that people are selected under—it is totally down to chance—and there is a realistic possibility that those selected for jury service might include incompetent people, people who are unable to deal with the court atmosphere, people with learning difficulties who might not be able to absorb legal information throughout the court proceedings and people who might have disabilities such as deafness and so might not hear what is being discussed.
How can the system guarantee that individuals who are selected for jury service are adequate to perform the role of a juror? That is a gap that needs to be filled. Surely, a suitability test is required to ensure that individuals meet specific criteria. Alternatively, the clerk or clerks of the court could have a pre-trial discussion with the jurors to allow them to make a general capability assessment of each juror.
It scarcely needs to be said that there is a strong and now well-recognised public interest in ensuring that the perpetrators of serious crimes are not wrongfully acquitted at trial, and the perverse acquittal proposal would play a small but important part in filling a gap in the protection that is provided by the law against wrongful acquittals. The proposal does not advocate a simple, merits-based procedure for overturning acquittals. Furthermore, it is perfectly consistent with the view that the criminal justice system should continue to acknowledge that, if the jury system is to have meaning and value, jury decisions must be respected when they seem wrong as well as when they seem right.
We have been in contact with the Scottish Parliament information centre and the Crown Office and Procurator Fiscal Service, and they have given us information on acquittals by juries. When we asked whether any research had been conducted to address the issue of perverse acquittals by juries, they stated that they were not aware of any such work. They also noted that there is no right of appeal by the prosecution against the jury’s decision. Surely, to maintain fairness and balance in a trial, the right of appeal should be available to both the defence and the prosecution.
When we first submitted the petition, we referred to Barry’s law. We request that, if the proposal to address perverse acquittal through a new section in the Criminal Justice (Scotland) Bill is accepted by the committee and the Parliament, it should be known as Barry’s law. Not only would it be our late son’s legacy but it would have meaning for the many people who support anti-knife crime initiatives in our communities, towns and cities. The bill could be renamed the criminal justice and victims (Scotland) bill, but it will be for the lawyers to decide the title. The process would be the same as for Sarah’s law, which everyone knows about and which involves the disclosure of the residences of sexual offenders.
The precise procedure in the proposal is not the only one possible; there are a number of variations. For example, it might be left to the Lord Advocate or the Attorney General, rather than the trial judge, to refer allegedly perverse acquittals to the court of appeal. Alternatively, the High Court might be the right body to hear such referrals. Moreover, a suitability test or pre-trial discussion with jurors would ensure that specific criteria were met or that competency had been displayed by all potential jurors. That would ensure that we had a watertight system.
Equally clearly, it is highly desirable that an acquitted defendant is not left in any doubt about the validity of the acquittal verdict for longer than is necessary. The time period in which the trial judge, the Lord Advocate or the Attorney General could challenge a verdict on the ground that it was perverse should be short. Ideally, some indication that the matter had been considered would be given quickly following the verdict, but it would not be appropriate for any decision to be announced in open court immediately following the declaration of the jury’s verdict.
I hope that my opening statement has provided supporting information from our perspective on our objectives and our proposals to provide a watertight, equal and fair system for everyone.
Thank you, Mr McLean. Before we begin our questions, I on behalf of the committee offer our condolences on the tragic loss of your son.
It is nice to see you again, Mr McLean. As you have said, research on juries is non-existent, because the jury’s verdict has always been viewed as sacrosanct. Nevertheless, Lord Bonomy, who has been carrying out a review of safeguards in the event of the removal of corroboration, has called for such research to be carried. Would you support that call?
Yes.
At a lecture in February, Dame Elish Angiolini made various comments on issues that you have touched on, and you might want to add to them. For example, she warned that:
“little is known about the challenges conditions such as dyslexia, dysgraphia and dyscalculia pose for jurors sitting through court trials and subsequently how verdicts are reached.”
That ties in with your comments about whom we select as jurors and what criteria we use. Would you support moves in that respect?
Absolutely. There might be costs in implementing something like that, but that should not go against it. We would support that 100 per cent.
The SPICe research shows that although this law exists in Canada, it seems that an appeal is based not simply on the assumption of perversity but on an error of law and the way in which the judge has directed the jury. Have you any idea how perversity could be defined in order to justify an appeal?
I will set the scene a little bit by coming back to the convener’s point about Alan McLean’s circumstances. To be a bit more brutal and clearer in that respect, I would suggest that hell looks quite comfortable when you compare it with what he has been through. That is where we are.
As a result of Mr McLean’s personal circumstances, we have recognised that a gap needs to be closed. The level of perversity is set when a judge believes that something is unjust. When a defendant who has admitted the crime of murder on tape sits in court, says nothing and then walks free, something is sadly wrong. Lord Auld said:
“A criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth”
in accordance with the prosecution’s principles. The object is to
“convict the guilty and acquit the innocent.”
In Alan McLean’s case, the guilty party was acquitted and walked free. That is unjust, and Alan and I and our campaign team believe that that gap needs to be closed. I was not in court for the trial—
I am sorry. I understand that your petition is based on something that has happened but we really cannot go back over the detail. Could you just stick to your petition and talk about perverse acquittal?
Mr MacAskill has already identified what Lord Bonomy and Dame Elish Angiolini said. Mr McLean, to what extent might some see the proposal in your petition as potentially undermining the jury system, which is regarded as an important asset to Scotland’s judicial system?
To be truthful, I think that only a small percentage of cases end in perverse acquittal. Most cases that go through the courts go in the right direction, but there is a small gap.
There will be criticism and a small percentage who oppose my proposal but, in the long run, from the perspective of the Government, the Parliament and the justice system, we need to make sure that we have a foolproof system in place. When a perverse acquittal is evident, we need to take a one-team approach and make sure that nobody slips through.
The purpose of the proposal is to make sure that we put in place a safety net for judges. It has been proved that the justice system can be defeated, and a safety net needs to be in place to give our judges some control measure. Indeed, it could snowball from that, because I think that such a move will send a message to the public that the relevant changes are in place and that the justice system will not be beaten. It might well be seen in the public eye as an additional deterrent, which can only be a positive thing.
11:00
Good morning. Having listened carefully to the discussion, I have to say that I am undecided, which is fine. I am in very little doubt that there will be guilty people who have been found innocent and innocent people who have been found guilty, and that is one of the principal reasons why, like me, many people decided against the whole concept of capital punishment. We know from hindsight that innocent people were executed for crimes that it transpired they had not committed. It works both ways.
If the issue is simply that the prosecution ultimately failed to prove its case, would the proposed system not lead to a lack of rigour from the prosecution over time, because it would know that it could lobby the judge for a second chance? Is such a situation not ultimately undesirable compared with, say, more rigorous examination and pursuit of the argument by the prosecution in the first place?
I think that there are certain aspects to that. A root cause of this might be the need to look at the jury system and the selection process—
I accept that point. In some ways, I felt that the arguments that you were making and which Mr MacAskill touched on about the process of jury selection almost amounted to a petition in themselves. However, the petition that we are being asked to consider is about the extension of an open charge against an accused.
Steve?
I think—[Interruption.] I have lost my train of thought.
I think that when there is a substantial amount of clear evidence—
But that seems rather a subjective criterion. Do you envisage a perfectly innocent man who is found innocent but for whom it might be deemed that the evidence suggested otherwise remaining in custody during an appeal process and going through a further trial that could again find him innocent?
That is a possibility, but we want to test that law almost to the extreme. In some cases, we are allowing monsters to walk the streets. That is what is happening as a result of wrongful acquittals, and we want to close that gap. There is a risk of sending people back for retrial, only for them to be found innocent again, but the measure would be limited only to the most serious crime—which, in our view, is murder. We believe that a judge should have the opportunity to allow a verdict that he or she believes to be perverse or unjust to be referred to an appeals board.
Good morning. I, too, am trying to get my head round the issue. One might argue that it would lead to the end trial by jury for what you have called the most serious crimes. Why have a trial by jury for any serious crime at all, given the possibility of a perverse acquittal? Would such a move not undermine Scotland’s judicial system? Surely it would all come down to the question of who would decide whether something was a serious crime.
I know that murder is a serious crime, but some people would argue that other serious crimes take place in which there may be perverse acquittal. At what stage would you stop taking cases to jury trial? Potentially, all that would happen is that evidence would be repeated in front of a judge rather than a jury—it would be the same evidence. Surely your argument is that we should do away with jury trial and just have judges sitting in the most serious of cases.
That would be an ideal world, sir.
It may appear to be an ideal world, but it would undermine the fabric of our judicial system, which includes the expectation that an individual who is charged and taken to court has the right to have their case heard in front of a jury. As I said, my view is that there is a fine line when it comes to whether a case involving a serious crime should be heard in front of a jury or only by a judge.
A couple of members have asked who would make the application when an individual walked because of a perverse acquittal, and you indicated that it could be the Lord Advocate or the Solicitor General. However, are you talking about someone walking free, or someone walking away from the court with a sentence for a lesser charge than that of murder? I want to get that clarification because not everybody who is charged with murder actually ends up being found guilty of murder; they may be found guilty of a lesser charge. Would that be a perverse acquittal or a perverse decision by a jury?
I think that a perverse acquittal arises only where the accused has been acquitted but there is clear, substantial, overwhelming evidence that they committed the crime.
You understand the difference between a murder trial and the sentence that may be handed down in that trial, and a trial involving a lesser charge, which may mean a sentence of a lesser term of imprisonment or, potentially, a fine. In your view, in the latter case could further action be taken not because there had been a perverse acquittal but because there had been a perverse decision by a jury?
Some of the aspects that you have touched on are quite fragile in terms of the law. About 15 or 20 years ago, I remember reading about some financial institutions being taken to court and there being an argument that, because of the complex nature of the case, no reasonable jury would be able to understand the intricacies. There may well be a strong case for a panel of judges trying serious crimes rather than a jury. Perhaps that is what you were alluding to. However, in my mind, if a decision was unjust and perverse, an appeals court made up of a panel of judges would make the final decision whether the case should be retried. In the case of a retrial, the case would be retried in front of a new jury.
Clearly the jury is viewed as sacrosanct in the common law in the United Kingdom. We see different situations elsewhere—for example, the Oscar Pistorius trial in South Africa. However, the situation in Scotland and south of the border—other than in the Lockerbie trial, which had judges rather than a jury—is that an accused should be tried by a jury of their peers.
There have been changes down in England and Wales, basically to deal with cases where there may be threats to or intimidation of jurors. I and many others have been sympathetic to such cases, and I note the point about complexity in major fraud cases. However, the situation in England and Wales is to do with cases where the jury may be tampered with or intimidated, and not other criteria.
The people who have been most opposed to any change in Scotland are the Crown. Why and how would you want to go further than the position in England and Wales, which acknowledges that sometimes we have to protect the jury?
I know that the jury has been part of the process for many hundreds of years. One of the questions that has arisen when we have debated the subject at our anti-knife campaign meetings is whether we need a change in our justice system. I think that what you say is absolutely right. We need to consider the public interest within the jury system to make it fair and equal. However, given my experience, I am putting a proposal to the Government, and the main objective is to close a small gap and prevent this devastation from happening to another family. That is the main objective—to close that small gap.
I do not think that the general public think that it is good enough for there to be a wrongful acquittal in a murder case and for someone to say, “Well, that’s just how it is. That’s the law.” I do not think that the general public believe that that is right. We have identified what we believe is a gap in the law and we are looking at how we can close it to make the law better. Some of our laws need to be brought into the 21st century. When we have monsters, in my view, walking the streets because of wrongful acquittals, something is not right, and I believe that we need to put it right. The proposal is one small step and vehicle to try to secure that.
As there are no further questions, I ask members what action they would like the committee to take.
We should write to the Government. Mr McLean and Mr Keicher, in very tragic circumstances, have raised an issue that has also been raised—fortunately or otherwise—by Lord Bonomy, which is that we need some research into jurors. I do not think that anybody, and certainly not Mr McLean or Mr Keicher, is suggesting that we should have the American situation in which people come out of a jury room and almost sign a television contract, but we need to know more about how and why decisions are made.
I suggest that we write to the Government to ask what it is going to do about Lord Bonomy’s comments. If it is going to take them forward, it will probably be unnecessary for the committee to write to other legal parties, such as the Faculty of Advocates and the Law Society of Scotland. First and foremost, the question is whether Lord Bonomy’s desire for some research into jurors, which I think Mr McLean and Mr Keicher share, is going to be delivered on. That would then allow us to work out what we need to do.
I have to be honest and say that I was not totally convinced one way or the other by Mr McLean’s presentation. I appreciate his passion and that he wants a better system, and as far as that goes I would agree with him. I think that people who have various difficulties are perhaps not fit for jury duty. An issue that comes to my mind immediately is language difficulties. We have more than 150 new communities in Scotland today and many people in them do not have the English skills that one would hope a juror would have. That is just one example. I agree that there needs to be some sort of investigation and study of the system.
I am happy for us to approach the Government to see what action, if any, it can take. I suggest that we continue the petition, put forward the proposal and see how we can develop it. I do not have the answer, but Kenny MacAskill is a lawyer and I am sure that the Scottish Government’s lawyers will be able to give us some good advice and guidance about taking the proposal to the next stage.
11:15
I agree with Kenny MacAskill that we should write to the Scottish Government to get its views on the Bonomy recommendations and the proposals that have been made. I suggest that we also write to the Scottish Human Rights Commission, as it would be useful to get its early views on the issues that the petition raises. As I tried to express, we need to be clear about the implications of any changes to legislation and jury trials. We should give the SHRC an early heads-up that we require its views on the issue.
I am conscious that some of the actions that we would be writing about fall outwith the scope of the petition, which is on the desirability of the perverse acquittal appeal and the potential extension of trials. I would not add to the list of organisations that we have been advised by the clerks to write to—the Crown Office and Procurator Fiscal Service, the Faculty of Advocates, the judges of the High Court of Justiciary and so on. The principle underpinning the petition is that we should consider the need for trial judges to have the power to refer jury verdicts to the High Court of Judiciary. The issue about examining the competence of juries is not within the petition, but it has been touched on in the dialogue that we have had.
Does the committee agree to the action points that have been raised?
Members indicated agreement.
I thank Mr McLean and Mr Keicher for their attendance.
11:16 Meeting suspended.Electric Shock and Vibration Collars (PE1555)
The third and final new petition is PE1555, by Siobhan Garrahy, on electric shock and vibration collars for animals. Members have a note by the clerk and a SPICe briefing. I welcome the petitioner, Siobhan Garrahy, who is accompanied by Claire Staines, who is a dog trainer and behaviourist. I invite Siobhan to speak to the petition for no more than five minutes. We will then move to questions.
Good morning, and thanks for having us.
Our petition asks the Scottish Government to ban the use of shock collars on animals, mainly dogs. We believe that electric shock collars are not regulated as they should be and that there is very poor legislation on them. They cause psychological distress, severe anxiety, emotional harm and displaced aggression. There is an alternative in positive reinforcement and appropriate training, which does not involve cruel methods.
Electric shock collars were banned in Wales a couple of years ago. They are also banned in Denmark, Norway, Sweden, Austria, Germany, Switzerland, Slovenia and many Australian states. There are petitions for a ban in several other countries. The proposed ban is supported by the Scottish SPCA, the Scottish Kennel Club, Guide Dogs for the Blind, the Dogs Trust, the Royal Society for the Prevention of Cruelty to Animals, Advocates for Animals, People for the Ethical Treatment of Animals, the Association of Pet Behaviour Counsellors and the majority of dog-breeding clubs.
There are several dangers associated with electric shock collars. The remote controls for the shock collars can fall into the hands of children who find amusement in shocking pets for no reason, because they are too young to know better. There is also a danger of the collars being misused by cruel people who take pleasure in hurting animals. The collars have been known to cause burns and severe disfigurement to pets. Shock collars can also be misused by being put on other animals—the smaller the animal, the more pain the collar will cause. In small animals for which the collars are not suitable, they can cause death.
Due to the lack of governance and legislation, several things can go horribly wrong. I will give you an example. A Labrador retriever’s owner bought an electric shock collar from a leading pet shop and carefully read all the instructions. The product was designed to work outdoors, as it was one of the shock collars that are designed to act like an invisible electric fence. The owner left the dog in the back yard for a few hours and, when he returned home, he was alarmed to find the dog in pain. On carefully removing the collar, the owner was horrified to find horrific burns on the dog’s neck. The device had shocked the dog non-stop for several hours. The dog needed emergency vet treatment under a general anaesthetic and suturing for the holes in its neck.
Wales is the first country in the UK to ban shock collars, agreeing with the RSPCA that their use is a form of animal cruelty. The ban is enforced in law by a fine of up to £20,000 or six months in prison. Sadly, the law is very poorly enforced, but the situation is improving.
We believe that there are more humane ways to stop dog barking, which is an issue for a lot of pet owners. There are kinder ways to do it using positive reinforcement. Alternatives include collars that spray citronella, which dogs detest the smell of, and collars that emit a high-pitched noise that is unpleasant for them to hear. Excessive barking is one reason why many people abandon their dogs, although there may be reasons for the dog’s behaviour. The majority of the time, the dog’s behaviour can be remedied through training and humane training aids, which is where Claire Staines comes in. Such aids are designed to keep the dog stimulated and occupied while the owners are out and to discourage barking.
Some people argue that electric shock collars are effective in breaking up dog fights, but that is not recommended, as it will actually fuel aggression in a dog. The dog is already flooded with adrenalin and, in fight mode, will believe that it is the other dog that is inflicting pain on it. It will retaliate harder as a result.
In an e-mail, the superintendent of the SSPCA, Mike Flynn, has stated:
“the Scottish SPCA strongly opposes”
the use of shock collars. He also said that,
“if an animal physically suffers through the use of such a device then action”
should be taken. At the minute, our animal welfare governance is run and moderated by a charity, and we are asking the Scottish Government to implement in law something more supportive to benefit animal welfare.
Thank you for that presentation, Ms Garrahy. What information do you have on how widely the collars are being used in Scotland?
Approximately 50,000 shock collars are in use in Scotland. According to the evidence, 25 per cent of them inflict pain or suffering of some sort, whereas less than 5 per cent of animals are affected negatively by positive reinforcement. In other words, 25 per cent of the 50,000 animals wearing shock collars are experiencing some kind of physical or psychological effect from that. That is a substantial amount.
I have with me a study that was carried out on 133 dogs that shows that 3.3 per cent of the owners were using remote control-activated e-collars.
I wonder whether, just for the record, Ms Garrahy can advise the committee where she got her figures from.
They are from a study carried out by the Scottish Government in 2007.
I do not have that study. The one that I have is from BioMed Central Veterinary Research in 2006.
That was nearly eight years ago. Do you have any more up-to-date figures?
Because electronic collars are not regulated and because they are sold in many different places, including online, it is difficult to find out exactly how many are in use. From a professional point of view, I am seeing an increase in them for various reasons. I do not know why that is, but I would like to put a cap on them to ensure that they do not become any more popular. The numbers are still relatively small in the grand scheme of things, but we want to get the message out to dog owners that the collars are inhumane and painful, that they are designed to be aversive and that there is an alternative. The question we would ask is: why would people use something that is designed to be aversive when it is not necessary?
According to Cara Hilton MSP’s research, an estimated 500,000 dog owners across the UK are using shock collars. These collars deliver an electric shock lasting up to 30 seconds, and her evidence states that three out of four Scots are against them.
I do not have and have never had dogs, so I am not familiar with this matter at all. We have heard the 50,000 figure; it is an estimate, but as long as I understand that, that is fine. Is this an age-restricted product?
No.
How does it operate?
I have one with me, if you would like to see it.
Yes. I am tempted to ask what I would feel if I was wearing it, but I might not want to volunteer to find that out.
I might quite enjoy that. You never know—you might be introduced to something.
The collar sits on the dog’s neck, just like any other, and the owner or handler operates it with a remote control system. I find it worrying that these things are claimed to be waterproof. My dad is an electrician and I was always told that electricity and water do not mix, but there we have it—it must be okay if you are a Labrador.
If the dog is doing something wrong, like rushing at the door, you send a warning signal, first of all. It is just a small beep. Can you hear that?
Yes.
After that, you can send an electric shock to the dog’s neck.
Can that shock be varied by the operator, or is it a predetermined thing?
11:30
Some of the shock collars give just a bog-standard shock over which the owner has no control. The one that I have here is one of the more expensive and elaborate ones. I can make it as uncomfortable or painful as I want it to be.
When I am walking about, I see electric boundary fences for cattle and so on. Is this the same thing but in a collar that the animal wears, or is it completely different in its strength and application?
The problem with the collars is that there is no restriction on them whatsoever. A study that was done found a lot of them to be quite faulty.
So there is a question mark about the manufacturing status.
You talked about children. Obviously, children would have the control unit only in circumstances in which an irresponsible parent had allowed them to have it.
Yes.
I note that there has been a debate on the issue in the chamber. In it, although the minister, Aileen McLeod, said that she was open to further discussions, she also said:
“a ban on electronic training aids cannot be justified on welfare grounds at this time but ... improved guidance for owners and trainers is the appropriate way forward.”—[Official Report, 8 January 2015; c 36.]
Obviously, you would challenge her assertion, but what do you think underpins her view that a ban cannot be justified at present?
I think that it is underpinned by the fact that so many animal welfare organisations are in favour of a ban—
The minister is obviously not persuaded by that. Why do you think that she feels that a ban is not justified?
Obviously, we cannot answer a question about why someone else feels a certain way. However, a Department for Environment, Food and Rural Affairs report that was published in 2011 stated in its conclusions that there was
“behavioural evidence that use of e-collars negatively impacted on the welfare of some dogs during training even when training was conducted by professional trainers using relatively benign training programmes advised by e-collar advocates.”
It has also been requested of the Scottish Government that it reconsider its position and follow the lead of Wales to ban the use of the collars.
How long have the products been available?
I have been a professional dog trainer for 12 years. I think that they have been available for that length of time. However, the trend has been growing for approximately the past five or six years.
Are the bans that have been introduced in various countries recent or long-standing?
They are all relatively recent and have been introduced in the past three or four years.
So there is an emerging trend against the use of the collars.
Yes.
There is a lot of new research, as well. Research that was conducted in 2014 by scientists at the University of Bristol and the University of Lincoln concluded that
“the use of e-collars in training pet dogs leads to a negative impact on welfare, at least in a proportion of animals trained using this technique.”
Could I draw the discussion away from welfare for a second?
I am a professional dog trainer and behavioural consultant. The problem that is at the root of this issue concerns how dogs learn. They learn through association. The shock is often used to correct a behaviour but, unfortunately, the dog does not understand what behaviour it is being shocked for. The dog then absorbs the environment and takes into consideration what is in it at that time. That results in a lot of the cases of redirected aggression that we see. For example, a dog is shocked for running to the front door and barking—that is a nuisance behaviour; no one wants their dog to do that. However, that can result in a dog being frightened to go outside. I have seen that happen and have worked with dogs on that level. When an animal is fearful, it is dangerous. Redirected aggression is rooted in fear.
My appeal is to get rid of the collars or at least put some form of legislation in place to control who can use them and the dog trainers who advocate their use, because they do not understand the fundamentals of the behavioural science of dogs and how they learn.
Your petition calls for the ban of electric shock collars and vibration collars. I can understand the case against electric shock collars because it is that much clearer, and we would not want to use one ourselves. However, mobile phones vibrate, so could there be an exception for the use of vibration collars for deaf dogs?
I can only give you my personal opinion on that, but Claire Staines has a quote.
There is no data to say whether the use of vibration collars is okay. I asked the deaf dog network UK, which has dog trainers who specialise in training deaf dogs and helping owners who have dogs who have hearing difficulties. It said that such collars are unnecessary and that, therefore, the trainers would not use them. We do not get the luxury of deciding what is aversive. Some dogs are sensitive to touch, so they could be averse to such vibration.
Vibration collars might not be damaging for every dog, but the deaf dogs network UK says that they are not necessary, so it would not use them. The short answer is that there are alternatives.
When you talk about alternatives, you are obviously talking about collars that release odours and things like that.
No.
Did I not hear you say earlier that some of those are quite frightening for a dog?
Absolutely. The alternative is just to teach and train the dog.
I am not comparing the punishment of children with the punishment of dogs, but each species on the planet learns in the same way. On children and physical punishment, the Scottish Government’s website says:
“discipline should not be about instilling obedience or inflicting physical punishment. Discipline is about showing ... how to behave”.
That is what I do as a professional dog trainer—I do not punish a dog for misbehaving; I teach it how I want it to behave. They are two different things. If I want to let a deaf dog off the lead, I have to teach that dog to do an automatic recall check-in every four or five seconds. That can be done using positive reinforcement.
We know that some dog owners find it really difficult to control their dogs. Are there any alternatives to taking the dog to a professional trainer to get guidance? Are there any other ways in which somebody could find a solution that would help them to deal with an unruly dog? Should we not have unruly dogs?
It is significant that most welfare organisations, dog shelters and pounds do not use shock collars or any other method except behaviourist training and a human touch. At the same time, we allow such items to go into the hands of people who have no training and no idea how to use them. All our main organisations and all our welfare contacts are strongly against their use. Nobody uses them professionally, yet we allow the public to use them.
The convener mentioned unruly dogs. There is absolutely no need to have unruly dogs. We create unruly dogs. The solution to that is proper education about how we interact with those animals daily and that is available from lots of different sources. For example, I am a founder member and steering committee member of the Pet Professional Guild in the British isles. I represent Scotland in that, and we have a massive website that contains educational parts that teach and guide dog owners on how to use positive reinforcement correctly. The Dogs Trust also has a massive drive on teaching communities how to do it correctly.
I work with this day in and day out. It is really simple to do—it is easier to do than it is to apply punishment. There is no need to have unruly dogs. We might get cases in which the genetics are not correct, but that should be assessed by a professional and the dog should be moved to control and management. There is no need whatever for dog bites, dog attacks, dogs running away or dogs chasing livestock. There is absolutely no need for those things to happen. We should not punish a dog when it gets something wrong when we can control the situation from the first day. That takes us back to why the collars should be banned.
If there are no other questions, do members have suggestions about what action we should take on the petition?
I would certainly like the committee to write to the Scottish Government on the petition. Given that there has been a debate on the issue and the minister has expressed a view on it, it would be useful if she could elaborate on the thinking that underpinned her view so that we can better understand the Government’s position.
Beyond that, as a ban has been implemented in Wales, I think that it would be useful to have some understanding of the rationale for the position that the Government there came to and what it thinks the outcome and experience of that have been. In addition, given that the products to which the petition refers are available online, how does the Welsh Government feel that it can regulate its implementation of a ban? I would have thought that it must be very difficult to prevent the purchase of the item in question.
As a local councillor for many years, I often came across issues with dogs, dog handling and how dogs are treated. The unfortunate thing about dogs is that, as has been quite rightly pointed out, many of their owners do not have the skill or training to handle the animal. If something goes wrong, it is always the animal that is blamed. I think that this is an important issue and that Jackson Carlaw is right about ensuring that the Scottish Government looks at it meaningfully. There is no point in punishing an animal just because the owner cannot control it.
I suggest that, to get a complete picture, we should also write to the Association of Pet Behaviour Counsellors, the Electronic Collar Manufacturers Association, the Scottish Society for the Prevention of Cruelty to Animals, the Dogs Trust, the Kennel Club and the National Farmers Union of Scotland.
Can I introduce a note of caution with regard to writing to the NFUS? I would hate the committee to give the impression that this is a major issue within the farming community. Indeed, we have not seen or heard any evidence to suggest that in our briefing papers or in this evidence session. I come from a farming background and I have never seen electric shocks being used in the training of sheepdogs, for example. It is up to the NFUS to highlight that in its response, but I bring it to the committee’s attention at this stage.
The fact that people in the sheepdog training community are skilled dog trainers is probably why you are not seeing electric shock collars being used there.
Sorry, Claire, but we are just winding up.
In the briefing that we have received, we are told that the NFUS is opposed to a ban, as are the Scottish Countryside Alliance and the Scottish Rural Property and Business Association, so I would like to at least know why the NFUS and those other two organisations are opposed to a ban.
That is fine. We will take on board the points that have been raised and we will write to all those bodies. I thank Siobhan Garrahy and Claire Staines for their attendance.
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