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Agenda item 2 is our final evidence-gathering session at stage 1 of the Nature Conservation (Scotland) Bill. Our task is to examine and report to the Parliament on the bill's general principles. Our open call for evidence concluded on 20 November and we have received 23 submissions, all of which have been circulated to members along with several supplementary papers, including the Finance Committee's report and the minister's letter on equalities issues, which we requested.
One aspect of the bill that has been raised with us frequently is that it does not contain a clear definition of biodiversity. Do you think that that omission is significant?
We acknowledge that people have raised that concern, and we recognise that an accepted definition—or, at least, a well-publicised definition—is available in the convention on biological diversity. It might be of merit to consider using that definition in the bill, in order to avoid confusion.
Your submission mentions that your remit is
It was important that the relevance of geological and geomorphological features was mentioned in the bill. I am not clear whether there is anything more that could be done to specify that interest, but it is covered in the bill.
Professor John McManus, from whom we took evidence a couple of weeks ago, did not think that that provision was strong enough. He mentioned in particular the fact that the bill contains no protection for fossils. I have an interest in that, because I have been lobbied by palaeontologists about the lack of protection for fossils in Scotland. There are some important fossils in Scotland. Achanarras quarry was mentioned particularly as a place where there are fossils of world significance, but people are drilling them out with diamond saws and selling them on the continent for as much as £20,000 a fossil. The bill should provide some protection for such rare fossils. Have you considered that at all?
There is certainly a loophole in the way in which fossils are protected under sites of special scientific interest in respect of third-party damage, and we believe that the bill addresses that. Damage by collectors is the principal area of concern and there is a question whether it would be appropriate to make explicit an additional offence in relation to fossils under the wildlife crime measures. That may be worth considering, but, in principle, the third-party damage measure that is covered by the changes in the bill would address the most obvious current loophole. Perhaps Ian Jardine would like to comment on that.
It is clear that damages by third parties are covered. The bill contains other provisions on the offence of damaging SSSIs and on offences in relation to nature conservation orders that can apply to third parties. As Jeff Watson said, the question is whether there would be any point in including in the bill an explicit offence relating to fossils to make that point clear.
We have had considerable evidence that there has been some deterioration in the condition of SSSIs; you mention that in your submission, although you believe that you have prevented a lot of direct loss or damage. That is a major area of concern for us as we move towards more positive management. Can you tell me, in all honesty, that if some sites are deteriorating and have not had money spent on them, you will be able to compensate for past reduction in compensatory management agreement payments with the amount of money that will have to be spent in future to bring some SSSIs up to scratch?
We strongly welcome the change in emphasis from the driving force being the availability of compensatory payments to championing positive management. On whether the transfer of the moneys that are currently available for compensation will be adequate to cover the costs of incentives for management, we have made provision for the investment of incentives through the natural care programme for the next two to three years in the first instance. We are comfortable that that is affordable and that part of it will be delivered by the transfer of payments that are coming out of compensation, but that is a slow process and will take a good number of years to bear full fruit. The provision for natural care beyond that time requires further discussion, but we are confident that we have sufficient money in the budget for the next two to three years to make the commitment to positive management that is inherent in the bill.
It seems to me that, if the situation gets bad, as could happen in some well-known instances, the proposed move towards using land management orders, for example, could open up a new range of expense. The Deer Commission for Scotland felt that the level of proof that SNH has to bring to bear is easier than that which the commission has to bring to bear, but that there could nevertheless be considerable expense in getting the landowner to agree to the sort of approaches that will be required under the positive management regime. Because of the survey that shows that a potential 45 per cent of SSSIs are in a poor condition and deteriorating—I know that that was based on a sample of 10 per cent—I am concerned that a number of cases might have to come to court, whereas none has come to court in the past. Will you expand on that?
I will start, and then ask Ian Jardine to build on my comments.
At an earlier stage, we believed that the Forestry Commission Scotland seemed happy to come in as part of a partnership agreement—as are certain non-governmental organisations—where positive action is being taken. How much do you use the specialist knowledge of outside bodies to help you get restitution of situations that have gone downhill?
We work very closely with the Forestry Commission, which we commend for the quality of advice that it gives us on woodland management. We have to overlay specific natural heritage questions on to its woodland production objectives. The most explicit evidence of the Forestry Commission's contribution is its commitment to the biodiversity action plan, to which it probably contributes more than any other public body. We are building good relationships over management expertise exchange.
It boils down to two things, the first of which is the balance between regulation and incentive. A big issue in the bill is where Parliament wants to strike the balance. The second thing is whether the incentives are sufficient to get the results that we want.
Your final point has answered my initial question, so I will move to site management statements. Will the statements have clear, quantifiable and measurable objectives? Will they be in the public domain and will people—at least the people near the site—be notified of them?
SNH has prepared a site management statement for each SSSI. We are setting up an internet-based system that will enable us to make each statement publicly available.
We welcome that. When the committee visited the Loch of Clunie and Marlee loch, it was interesting to see the site management statement, which allowed us to get a grasp of what will be available. One point that arose in our site visits was the importance of local communities, landowners and everyone with a key interest in an SSSI knowing what is protected and what the choices are about how to protect the site properly. The system is a big step forward—we have seen the pro forma that will be used.
The management aspect of the statements is one point, but the fact that they enable us to present the implications of notifications in terms that can be understood by land managers and other interested parties is extremely useful for us, because hitherto we have had to express everything strictly in scientific and formal legal terms.
Your submission mentions finance and we have talked briefly about natural care and the funding for management agreements. You made the point, which members picked up on, that the rural stewardship and forestry grant schemes need to move to a more positive framework for the future. How will that happen? We know that the minister is conducting a review of, and inviting comments on, the reform of the common agricultural policy. Will SNH make a submission about the regime that it wants for the future? The key stakeholders will require sufficient resources to implement the bill.
We recognise that the implementation of the bill has implications for SNH and more widely. An important dialogue needs to take place over quite a long time scale with owners and occupiers to ensure that the management of the sites is effective. That dialogue, which is principally a matter for SNH, will involve discussions about the site management statements. On the involvement of others in the process, we are making a submission on CAP reform, on which Alan Hampson may want to comment.
I will begin by mentioning the Scottish forestry grant scheme, which is the other main source of funding that contributes to the natural care process. The year before last, the Forestry Commission and the Executive set up a steering group to review the old WGS. The new Scottish forestry grant scheme recognises the importance of SSSIs and offers a higher level of funding for management and establishment work that is associated with SSSIs. We were involved in that review process and supportive of it. We are always keen to bear in mind and to consider thoroughly the need to balance the amount of the available pot of resource that goes into the special sites rather than the wider countryside. That important issue was debated in the discussion over the new forestry grant scheme.
One of the specific points about finance that you made in your submission was:
Our assessment is born out of experience—especially the work that we had to do to implement the provisions of the European directives. It is necessary to spend an adequate amount of time in consultation with owners and occupiers about changes that affect their relationship with these pieces of land. We recognise that the bill requires us to make those changes or at least gives us the option of making them. Generally, the changes are likely to be well received, especially the reduction in size of the list of operations requiring consent.
I endorse those comments. It would be a false economy to cut back on consultation. All the experience of notifying SSSIs shows that the list of potentially damaging operations and, now, ORCs is a very sensitive area. Failing to take time to deal with owners and occupiers—individually, if they wish—would be a false economy.
I have a final question about resources. In its supplementary evidence, the Convention of Scottish Local Authorities expressed concerns about how effectively community planning can be co-ordinated and about how biodiversity issues can be embedded in the community planning process.
We are addressing that issue. Next week, or the week after that, I will meet representatives of COSLA to discuss it. SNH will have a role in working with local authorities and already inputs to the community planning process. We must be clear on the guidance that local authorities are seeking and whether we can provide that, but we hope and expect that we will be able to support local authorities. We are a major funder of local record centres and biodiversity action plans. I expect that we will continue to play that role.
So you envisage a gearing-up of your activities, rather than something that will necessarily require extra resources from SNH. Local authorities see the new provisions as challenging.
If we are talking largely about producing guidance and advice for local authorities, a significant gearing-up of our activities will not be required. If a bigger long-term support role is envisaged—especially the provision of grant aid to local authorities—that may have resource implications for SNH. However, I am not sure that that has been suggested; the concerns relate largely to guidance and advice. I am not worried about the impact that that will have on resources.
We are developing new ways of working, to get information out from SNH to the partners as they become increasingly involved in this work. Large programmes—mainly internet-based systems—will ensure that information is much more readily available.
What practical steps will SNH take to ensure that the implementation of the bill will have a positive impact on the rural economy in Scotland?
Anticipating the bill, we have taken a number of steps to ensure greater awareness among individuals who are involved with the sites, and greater appreciation of the reasons for having them. We touch on that in our submission. As members will know, our statutory role is principally to do with the natural heritage, but we have a balancing duty as well.
What grates just a little is the implied presumption that local people and businesses might not cherish the local environment as much as SNH. There must be a mechanism by which you could work more closely with those people, for whom the environment might be their key asset. You would be pulling on 10-league boots by having them co-operating with you.
I certainly did not want to give the impression that we do not want to work with local communities—we work very actively with them to promote the natural heritage assets in local areas. The note of caution that I introduced was simply that we have to be responsible. I think that communities are equally concerned about that and we try to listen to their concerns.
We have to consider a wider context as the role of the countryside changes from being primarily one of production to being one of provision of a range of goods and services. I am thinking of SSSIs in particular, but we must also consider biodiversity, nature conservation and the natural heritage, which must be more recognised as assets that can generate wider economic activity. The main spin-off is obviously related to tourism.
When was there last a meeting of SNH, VisitScotland, NFU Scotland, local enterprise companies and RSPB Scotland? When did you last sit round a table to consider what could be done to develop local economies?
I cannot give you a date. Such a meeting would probably be held through the tourism and environment forum. Almost all, if not all, the bodies that you mentioned are members of that forum, so there is a network through which those organisations can work together. It has been going for a number of years, and a number of initiatives have come out of it. I do not think that there is any reluctance to address the issues.
The study "Nature Conservation Designations and Land Values" that the Macaulay Land Use Research Institute undertook for the Executive in 2002 indicated that support for positive management of designated sites can be a major contributor to maintaining farm incomes, so there is already some evidence of the positive role that the likes of natural care can play in maintaining incomes in the countryside.
I have a follow-on point with regard to the downgrading of certain national nature reserves, the management of sites of special scientific interest and relations with the local community. I have asked previously about the rare whitebeams in Glen Diomhan on the Isle of Arran. It is a site of special scientific interest, but it is being downgraded from national nature reserve status to one in which normal management practices will be followed. There seems to have been little discussion with the local community, which is quite proud of the fact that it hosts a pretty rare tree. There is the potential for people on the island to welcome folk who come to see the trees, but part of the reason for the downgrading is the fear that people will twist their ankles on a hill path.
I shall make a start, but I am not sure that I can answer all the questions. I do not know the detail of the level of consultation on that particular site, for which I apologise. I can say a little bit about national nature reserves and NNR policy. I challenge the point about downgrading, in the sense that the protection for the site remains the SSSI designation. The NNR designation itself does not imply greater protection. It depends entirely on the strength of the nature reserve agreement with the landowner.
We will note such matters in considering the implementation of the bill. It strikes us that the principles in question are good, but we wonder what will happen in practice. There are areas in which specific examples begin to raise doubts that the site management statements, discussions with local communities and the ability to intervene will work any better.
We certainly have experience of where things have not worked.
As a rule, we certainly support the underpinning of European sites, which is consistent with the UK Government's policy. In Scotland, we made a case—which ministers accepted—that there are circumstances in which it might be appropriate to proceed without underpinning those sites where aspects of positive management and active management in particular were necessary to maintain the interest. From the start, there was much more of an incentive rather than a prescription or a list of requirements to consult, which is the mechanism that comes through an SSSI. Sites where there are proportionately large numbers of individuals—which tend to occur where there are crofting interests—were also involved. Sites that have been taken forward as SPAs for corncrakes and the big Lewis peatland site are particular examples.
I want to move on to consider the statutory purpose of SSSIs, which is another issue that has been raised by some witnesses. Some were of the view that the bill did not go far enough. Several witnesses mentioned the need to provide for the rarity, conservation value and irreplaceability of some sites as well as for the representativeness of diversity. Do you have a view on that? Should the statutory purpose be extended to the work not only of SNH but of the ACSSSI? I cannot remember what ACSSSI stands for.
It stands for Advisory Committee on Sites of Special Scientific Interest.
That is right. Does SNH have a view on that?
I have a concern about the definition of the purpose of SSSIs. I know that there is a legal argument as to why I should not be concerned, but I do not understand that legal argument. I share the concern that, as it stands, the bill talks about SSSIs being representative. It seems to me that there is a logical argument that, if something is unique, it is almost by definition not representative.
Right, we will test that issue with the minister. If you are not sure how the definition works legally, I hope that the minister will be.
My question is slightly related to that point. The submission from the Natural Environment Research Council suggests that
We have local designations as well. I suppose that I question whether the bill is the place to do what has been suggested.
Would doing so not tidy up and clarify things?
It might, but at the expense of flexibility. That is a balance that people might want to think about.
I add that an opportunity might be provided through the Scottish biodiversity strategy, which local authorities will closely observe and contribute to. That mechanism might allow for what has been suggested without necessarily putting the onus of identification and selection and all that goes with that back on to SNH. Frankly, I think that that would be unmanageable.
Part 2 of the bill in particular confers significant additional powers on SNH. One of the groups of people with whom I speak regularly—I am sure that you know them, too—believes that SNH has too much power at the moment. Although I approve of what part 2 is trying to achieve, I want to pursue my concerns on the issue of accountability. To whom are you directly accountable?
Our direct accountability is to the minister and through the minister to the Parliament.
Yes. It was suggested by various people—and by one witness in particular—that that process of accountability needs to be loosened. They said that the minister needs to be less involved. I take it that you would not agree with that approach.
I suppose that I do not follow the reasoning for it.
There was a very interesting submission, which, if you have not read it, we should perhaps pass to you.
We would do that only if the main SNH board did not accept the ACSSSI's advice. The ACSSSI provides advice, but it is open to the SNH board to accept or not accept the advice in its entirety. Given that we are talking about scientific advice, the board would not accept the ACSSSI's scientific advice only if it believed that other strong scientific evidence was available to it. It would also have to be happy to defend its decision publicly, as its meetings are always held in public. The SNH board has not taken the ACSSSI's advice on only relatively few occasions. Even when that has happened, the SNH board did not reject all of the ACSSSI's advice but accepted only one or two points. At the moment, it is open to the SNH board to do that.
You would not take decisions that were based on economic arguments, local public opinion or something of that nature. Decisions are taken exclusively on the basis of contrasting scientific advice.
That is correct.
Where such situations or other pressures arise, what authority does the minister have to intervene? SNH is very much an arms-length organisation. What I am trying to get at is how long the arm is.
At present, the Wildlife and Countryside Act 1981 gives SNH the power to notify sites. I think that the minister could intervene to direct by using section 11 of the legislation that founded SNH—the Natural Heritage (Scotland) Act 1991. My understanding is that that is a wide power. The minister could use it to direct SNH on any matter and SNH would be obliged to follow the direction.
The provisions that are contained in the bill introduce the idea that the Scottish Land Court would have a role to play as a court of appeal. Does the present system contain any structures that duplicate that provision or is it completely new?
I think that those provisions are new. At the moment, the standard appeals procedure—judicial review—can be used to appeal against a daft decision that has been taken by a public body. Someone could also take a civil action in a case in which their interests were affected.
Let me try to clarify that point. The issue was discussed and debated at length by the expert working group, and the principle that was eventually agreed upon was that the process of designation itself does not impose any limitation on the way in which an individual can exercise his or her right to that land. An imposition may arise at the time when SNH does not consent to a notice of intent or where a land management order is served by ministers. It was felt that the appeal mechanism had to be available at that point. Until then, it is a judgment of the merits of the designation and of whether the process has correctly identified and designated the site for a specific range of interests. The appeal then kicks in at the next stage, if a situation arises in which there is an imposition on what individuals can do with their land.
I referred at the outset to the general principle that there are people who fundamentally disapprove of the activities of SNH, and we all know that there are those who will not be persuaded. As the legislation progresses, it is important to ensure that, wherever possible, those relationships are improved. Do you think that the structure that the bill puts in place offers the opportunity to improve those relationships, or is it simply a dispute resolution system?
Overall, the new structure offers opportunities to improve the situation. In general, relationships have improved—if I think back to relationships with the agriculture and forestry sectors 10 years ago, I can see that we have moved a long way in that time. I see the bill as helping to progress that, because it envisages a system that is more focused on interests in and effective management of sites and because it involves a more consultative and less legalistic process.
The other way in which it helps with relationships is that it introduces a lot of flexibility. The existing system is very rigid, so it was difficult for us to adapt the designation, or indeed the system, to reflect local circumstances or changing circumstances. The bill provides a range of measures that enable us to work more flexibly, which is always a good basis for developing more constructive relationships.
One of the accusations made against SNH is that it is always judge and jury. However, the bill contains a lot of checks and balances in terms of appeals and the necessity to get ministers' agreement. If you look at the bill as a whole, you can see that there are safety nets to ensure that SNH refers cases that could have an impact on an individual's economic or other interests.
Many submissions have asked whether SNH would act reasonably. As we have indicated, the test of reasonableness will ultimately lie with the Land Court, to which any appeal must be made.
Alex, do you still have a number of questions to ask? There are two other members who want to ask questions and you are getting into a bit of a dialogue with the witnesses.
There is just one other point that I want to pursue.
I think that the bill puts us in that position. In any case, with regard to your comment about acting "unilaterally" with the minister's approval, I would argue that that would be acting with the agreement of the democratically elected Government. I am therefore not sure whether that is acting unilaterally in a strict sense.
I will take the other three members who want to ask questions, but I ask them to keep the questions brief.
My two questions arise from the submissions that we have received. An organisation that made one submission says that it
In so far as we comply with legislation—which we clearly do—the scientific case is made available through the citation and various attached documents such as a map and a description of the land. As one would expect, a further set of information sits behind that citation and is available to people whenever they wish to see it. In my judgment—although I stand to be corrected on the point—that information is not held back and is not revealed only during an appeal. The question is whether the information is fit for purpose. Many people do not want to see such a big volume of information and it would be extremely daunting to include it automatically in the package. However, it is certainly available.
I presume that we can also think about such documents in the context of their accessibility on the internet. We do not need to download 100 pages, but if we want to get to the guts of something we can easily do that by accessing the top two pages.
At the Scottish Civic Forum debate yesterday evening, deep concern was expressed about the number of Government consultations in general and about the fact that many suggestions are not taken up in the subsequent process—in this case, in the bill. There were obviously many responses to "The Nature of Scotland" and the process of getting to the current position has thrown up some changes. Can you give an example of a suggestion that came from the public during the consultation that has changed the approach in the bill?
I am going to do what I had hoped not to do, which is to duck the question and say that only the Executive can answer that, as it was the Executive's consultation. However, I was involved in the expert working group and I point to that as an example of good practice in the development of legislation. The expert working group used the information from the consultation process, but it also heard representations from non-governmental organisations, land management interests and Government interests. That process helped to tailor the bill—in particular in relation to how the appeals process will work in practice—and strongly contributed to the development of the financial guidelines. Land managers, the Scottish Landowners Federation and the NFUS were involved in determining not just what would be desirable but what would be practical. That was how the appeals process was worked out and it was certainly how the financial guidelines were thrashed out—and that has made a difference. You might want to ask the Executive to confirm that.
I will certainly ask the minister about that.
The minister has been given notice.
I have a couple of questions about part 3, which is about wildlife crime and related matters. First, the committee has heard that there has been a lack of transparency in relation to the granting of licences to kill birds and animals. Why were people unable to get information about, for example, the reasons for refusing licences or the number of licences that have been granted in Scotland?
I will ask Alan Hampson to deal with your second question.
How long does it take from making an application for a licence to receiving a decision on whether one has been granted?
Again, I refer to the cases in which SNH makes the decision. We operate within national standards, but I cannot remember the exact time scale for making a decision—I am being told that it is 20 days. It is one of the standards that we are consistently able to meet. There is not a history of our constantly exceeding the time scale. There are occasions when that happens, but in this area they are rare. The information is published in our annual report and so on.
You asked whether we would address the issue of recklessness in the code. Recklessness is a new issue and is difficult to define in this context. Ultimately, it will be for the courts to decide what constitutes reckless behaviour.
I meant that landowners may use recklessness as a reason for preventing people from accessing land. They will say that they do not want walkers on their land because walkers may recklessly disturb an SSSI. People want there to be recognition that recklessness may be used as a wheeze to keep them off land. Are you considering that issue in the access code?
In the code, we can spell out what constitutes responsible behaviour. For individuals, that is of primary concern when they are taking access. Jeff Watson may have further thoughts on the issue of what happens when a landowner tries intentionally to limit access on grounds of recklessness.
In my judgment, if someone is trying to prevent access by using the term "reckless" in a frightening way, they must be coming close to breaching those aspects of the code that relate to the provision of responsible access, as opposed to the taking of responsible access. There are two sides to the issue. If the recklessness provision is used frequently and regularly in a way that appears not to be consistent with the legislation, it is reasonable for local access fora to consider the issue. As Alan Hampson said, it is for the courts to decide whether an offence has been committed.
In its written evidence, the NFUS says that section 18 of the bill provides
The original arrangements were that the period should be three months, but that has been extended by one further month. A small extension has been made to the current arrangements. The provision is born out of the experience—both of the expert working group and more generally—that more time is needed to conduct negotiations prior to deciding whether it is appropriate to conclude a management agreement. It was felt to be reasonable to add a little more time to the original period. The concern to which Nora Radcliffe referred has not been commonly or widely expressed to me.
However, the issue was discussed by the expert working group, on which the NFUS was represented.
Yes.
That is useful clarification.
Meeting suspended.
On resuming—
We are reaching the conclusion of our stage 1 consideration of the Nature Conservation (Scotland) Bill, for which I welcome Ross Finnie MSP, who is the Minister for Environment and Rural Development. I invite the minister to introduce his officials and to make opening remarks.
I am accompanied by Jane Dalgleish, who is the expert on natural heritage to whom I will refer when I need to; Duncan Isles, who is a leading member of the bill team; and Alison Crowe, who will deal with complicated legal matters. That relieves me of almost any responsibility, which is the way of things.
All that is left is introducing the bill.
Absolutely.
I thank the minister for his opening remarks. We have a huge number of questions to ask. I would like to take a logical approach by going through the bill's provisions in order.
I am obliged.
We do not always do that. We will start with the bill's scope, then move on to part 1, part 2 and part 3, on wildlife crime. After that, we will pick up issues that occur to members later. That approach will ensure that everybody asks their questions and that we cover all the points. Nora Radcliffe will kick off on the bill's scope.
I am sorry if I am tossing a nasty pebble into the pool. We have had a certain amount of evidence from people saying that we should take the opportunity to consolidate all the legislation—it stretches back years and there are cross-references and so on—in a consolidation bill. It has been suggested that this might be an opportunity to do that. Does the minister think that that is a good idea? If he does not, is it desirable and possible that after passing this bill we move to a consolidation to make the plethora of conservation and environmental legislation clearer?
I am aware that you have had a number of representations on the issue. You are right that elements of the legislation that governs nature conservation go back a considerable number of years. As a matter of practical parliamentary procedure, if one is going to keep the matter reasonably manageable it is better to dispose of policy issues in the context of a new bill. The bill raises new policy issues and makes substantial amendments to previous practice. My view is that we should pass the bill and the one small element of the conservation regulations that is close to fruition.
That is a sensible way forward.
There are two issues. We said when we introduced the bill that we were anxious that we should not deal in detail with the marine environment. The evidence that the committee has received indicates a general consensus among most of the environmental NGOs and other stakeholders that that is the correct approach. However, the bill does provide increased protection for cetaceans and basking sharks. We acknowledge that dealing with the marine environment is a huge issue. After having a preliminary look at the matter, we decided that it would have become unmanageable to have tried to incorporate it in the bill. As my deputy, Allan Wilson, said recently, that is something that we must now move on to.
One of the issues that people have raised is the time scale for legislation on the marine environment. Do you have a view about when that might be possible? Or should we just put that to the wall in the report?
Madam convener, I appreciate the highly productive rate of work of the committee. If you can dispense with this bill quickly, deal with the water environment legislation relatively quickly and dispose of the proposed strategic environmental assessment bill in a trice, we will have time to consider much wider ranges of legislation. I do not wish to be facetious; the matter is important, but I have introduced a heavy programme that will take up much parliamentary time. I am conscious of the burden that we have already placed on your committee and you have other things to do. We will continue to work up what is required in terms of consultation and the scope we are looking at, but we have already proposed to the committee a hefty programme of legislation that will make a lot of work for you and me.
We have a timetable.
I anticipate with excitement the marine environment bill.
I will deal with the last part first. Natural heritage has been carefully defined in the Nature Conservation (Scotland) Bill because the bill does not deal with exactly the same types of natural heritage as the 1991 act. The bill relates only to physical features, unlike the 1991 act, which deals with natural beauty and amenity. However, on mature reflection, as they say in these matters, not using the same form of words might cause some confusion to the ordinary citizen. We have to be careful; we have defined the term carefully and we put some considerable thought and work into it. Although we are dealing only with the principles of the bill at this stage, we will want to have another look at whether we are causing unnecessary confusion. The definition will only be challenged on a statutory basis and it might be highly defensible, but if it then causes public confusion in how the bill is used, we will reflect on that.
The Deer (Scotland) Act 1996.
That is an older piece of legislation. Looked at in the round, the interface between the Deer (Scotland) Act 1996 and the bill is perfectly sound. We have not had any serious representations on that. There are issues in the 1996 act, but they are not so much about protection as about the need for us to control some of the habitats that are affected by an over-population of deer. The Deer (Scotland) Act 1996 gives powers that enable the Deer Commission for Scotland to promote programmes for dealing with the problem.
There has been some concern that the recklessness provision in the access code would allow landowners to prevent access. Can you reassure the committee that, as you said, the issue is about responsible access and that the bill should not be seen by anyone as a provision to stop the important steps forward of the Land Reform (Scotland) Act 2003?
I am absolutely clear about that. I would be concerned if parties sought to put a construction on the proposals in the bill in a way that undermined the right of responsible access. Given that the provisions in the bill are relatively specific, if people sought to use them as a way of constraining the right of responsible access, that would be disappointing and we would condemn it.
That is a useful clarification.
Yesterday evening, the Scottish Civic Forum had a debate in the chamber, during which considerable concern was expressed about the fact that, although in the process of creating new law the consultative phase before the presentation of a bill attracts a lot of comments, few of those comments are incorporated in the bill. Will you give one or two examples of how consultation with the public has altered the Nature Conservation (Scotland) Bill? I have one follow-up question.
Gosh. The bill was widely consulted on. I cannot cite specific instances, but I happen to know that substantial parts of the bill as presented are radically different from the proposals in some of the papers that we published. Someone could go back and track the changes—perhaps Jane Dalgleish will give a specific example. Our discussions with the various groups involved huge debates about how certain provisions should emerge in the final shape of the bill and we were influenced by that. I am disappointed about the feeling in the Scottish Civic Forum, although I am not sure whether that was a general criticism, or a specific criticism of the Nature Conservation (Scotland) Bill. The bill involved one of the widest consultations that there has been on a bill; it has had huge input from a wide range of people who have interests in the sector. Perhaps Jane Dalgleish wants to quote a specific example.
The example that I will quote is on page 1 of the bill. The draft bill did not introduce a requirement for a report on the Scottish biodiversity strategy to be presented to the Parliament, but section 2(4) of the bill as presented will require a three-yearly report to the Parliament on the strategy. That provision was introduced as a result of the consultation. On a number of other provisions, we have taken account of consultation, not only generally, but with the expert working group on SSSI reform, the partnership for action against wildlife crime and the Scottish biodiversity forum.
I realise that the question was broadly drawn and that it was not specifically about the bill, but nevertheless, we must ask questions about the process of government as seen by the public, who want it to be as transparent as possible. It is clear that expert witnesses help the Executive to formulate better bills, but a number of groups have asked about the specific issue of non-native species and wonder whether the Executive will lodge amendments on that matter at stage 2. Will you expand on that issue?
I do not want to get into an argument with people who are not here, but ministers consulted during the summer on whether legislative changes were needed on non-native species. The primary changes that consultees proposed involve adjustments to the schedules to the Wildlife and Countryside Act 1981, which list the species of birds, animals and plants that must not be released into the wild. The amendments that have already been made to the bill will give ministers the necessary powers and flexibility to adjust those schedules.
I have a question related to the lists. The discussion triggered a memory of something that I saw in the submissions about pure-bred species and hybrids. Are you considering dealing with hybrid species in the lists?
The bill gives us the power to adjust the lists. In our consultation, we will have to be more specific about how we will adjust the list. There are two related questions. The first is whether we have enough powers to do something about non-native species. You will have to reflect on that, but I believe that there are powers to allow ministers to adjust the lists. The second question is, if we are going to use those new powers, which species and which hybrids would we wish to direct attention towards? Clearly, we would have to come to a view on that and consult on what we proposed to do if we were proposing to amend the list.
We live in a commercial world. What commercial advantage will the implementation of the bill deliver to the people of Scotland?
It will deliver hugely. Almost every aspect of Scottish life benefits from the perception that we are a nation with a high-quality environment. However, we should not delude ourselves into thinking that that will continue forever, and that it is not adversely affected, if not by deliberate, then by unthinking acts of members of the public. We have constantly to refresh our legislation to ensure that the key elements of a high-quality environment are protected. The tourism industry is the most obvious example. If we do not take care to provide a statutory framework to protect our natural habitat and our species, we will adversely affect that industry. Over time, Scotland's ranking in world circles would fall away, which would have an adverse economic impact on our tourism industry, and consequently on Scotland as a whole.
Looking forward, what practical new steps do you want SEERAD and SNH to take to ensure that the implementation of the bill will have a material, positive impact on local rural economies?
As with all bills, it is important that all the various players abide by and take account of its provisions—whether those players are local authorities, Scottish Natural Heritage, SEERAD or the general population. I would not be introducing this bill if I did not think that its cumulative effect in the broader legislative framework—earlier questions asked how this bill will fit with access and other legislation as a whole—would be to have a positive impact on our natural environment. The bill will be good for us in terms of protecting our water environment, our habitats and our natural heritage. Our raw materials, agricultural produce and whisky industry are dependant on the perception of either clean water or high-quality produce. That is fundamental, and is supported by legislation such as this.
The committee received a submission from Professor John McManus, a geologist who is concerned that Scotland's fossil heritage will not be protected by the bill. I had hoped to see that protection in the bill. In the previous parliamentary session, I tried to have such protection put into the Criminal Justice (Scotland) Bill but was told that it should instead go into the Nature Conservation (Scotland) Bill.
I am absolutely clear that fossils that are located within SSSIs are protected. I cannot remember whether the particular place that Maureen Macmillan is concerned about is part of an SSSI.
It is not.
Well, two issues are involved and I will try to deal with them both. First, fossils that are in SSSIs are protected. Fossils that are not in SSSIs come into the category of things that SNH ought to be concerned about, if the fossils meet the criteria of being particularly special—I cannot remember the right words, but Jane Dalgleish will remind me what they are.
As the minister said, if the fossils meet the criteria of being of national interest in geological terms, it would be perfectly possible for SNH to designate the area as an SSSI and give them protection under the bill.
As far as I am aware, the site has actually been downgraded by SNH, but nobody seems to know why. Therefore, I think that it is unlikely that SNH will upgrade the site to an SSSI. Given that the fossils in question are obviously important, where do we go from here? Is there nothing that could be put into the bill to give protection to internationally recognised fossil beds without making them an SSSI?
There are two specific points to be dealt with. From my perspective, if the fossil beds are internationally recognised as important, that begs the question as to why they are not recognised as such by Scottish Natural Heritage and why they have been downgraded. I do not know the answer to that question and I will have to pursue it. There seems to be an inherent conflict there.
It would be useful if the minister could follow up that issue.
Yes, it would.
Okay. There are no further questions on the scope of the bill, so we will move to examine part 1.
There was consensus among our witnesses that having a biodiversity strategy in place was extremely desirable. Indeed, it was thought that it would have been helpful to have had the strategy fully developed and in place before the bill was introduced. Some witnesses also suggested that ministers and public bodies should be obliged to implement the strategy, not just to have regard to it. It was also suggested that the strategy should be detailed, with action plans, targets and monitoring. I wondered what the minister would like to say about that.
As you rightly say, trying to get all the ducks in a row is one of the tricks. There is a distinction here. The bill will help to safeguard biodiversity by placing a duty on public bodies to have regard to it, by enhancing their ability to do so, and by improving the protection of biodiverse sites. The bill has that overarching aim.
The bill focuses on biodiversity. Would there be merit in expanding its scope to link it more closely to sustainable development? We seem to have taken out the socioeconomic issues. Is there merit in having a link to those aspects of sustainable development in the bill?
We have to take a view of sustainable development. We are all aware—the committee is particularly aware—that sustainable development has various component parts. If we try to turn every bill into a sustainable development strategy, we will have missed the point. The bill is about nature conservation and it will play an important part in our overall sustainable development strategy. However, it does not pretend that it is the sustainable development strategy. It plays a key part in that and it brings other bodies, such as local authorities, into the sustainable development net. We have to examine our strategy for sustainable development and we have to be aware that it is going to be composed of statutory and non-statutory parts. We should recognise that the bill is essentially about nature conservation, notwithstanding the fact that it will play an important part in an overarching sustainable development strategy.
That seems to be quite sensible.
Biodiversity has a common usage. If we tried to define such a term in the bill, we could end up with a long definition that would exclude several broad concepts and that would cause difficulties for people who are engaged with our natural habitat. We would begin to generate a list rather than a definition. The term has a common and accepted usage and unless we are going to use it for a different purpose, we would not seek to give it a different connotation when drafting the bill.
I have a follow-up question. What would you miss if you used the definition in the United Nations Environmental Programme Convention on Biological Diversity?
We do not accept that we are not using that definition. The bill makes an explicit reference to the United Nations convention within which the definition is contained.
Some of the witnesses disputed that. Perhaps we should look into the issue, as it was raised a few times in different submissions.
Members will see that part 1 contains an explicit reference to the United Nations convention, which provides the definition of biodiversity. When we put the bill together, we followed drafting practice that assumes that a word has the normal everyday meaning unless there is a specific intention to give it another meaning.
That was a very helpful explanation. We can think further on the subject, but that is a useful technical description of how we are meant to read the bill.
We received a submission from the Association of Chief Police Officers in Scotland, which asked a lot of quite technical questions about what should be in the bill and what should not. Rather than go through all the questions now to try to get oral answers, would it be helpful if we were to ask the minister to give us a written response to the submission?
We can certainly consider that at stage 2. However, over the next two to three weeks, we will finalise our response to the general principles of the bill and produce our stage 1 report.
Right. As the questions are all quite detailed, they are probably better dealt with at stage 2.
It is up to members to decide how much detail they want to get into at this point. In respect of our stage 1 report to the Parliament, our job is to satisfy ourselves that we have scrutinised the bill.
The point that I want to make carries over from our discussion on part 1. Some witnesses suggested that local authorities' work loads will increase if there is a duty to develop local sites in addition to SSSIs. There is a perception that buffer zones should be created around designated sites. That would increase the amount of work that local authorities might be expected to undertake. The point is linked to the need for a biogeographical definition of SSSIs, which is something that we need to tease out a bit.
Notwithstanding the fact that part 1 places a duty on public bodies and on the local authorities in particular, I would be extraordinarily disappointed if, in exercising those duties, local authorities sought to do so entirely on their own. That would be both disappointing and unfortunate. If they got into territory where they recognised their legal duty—
I am not suggesting that they would.
I am talking about expertise. It would be hugely disappointing to us all if the expertise that currently exists within SNH was not called upon when a local authority believed that that was something that it should have regard to in order to discharge its functions properly. I certainly do not anticipate local authorities taking on people whose expertise can be found elsewhere. Although I take your point about resource implications and about how local authorities approach and deal with such matters, I feel that a closer relationship between local authorities and SNH would be healthy, with regard to how local authorities execute their duties and whether they have at their disposal sufficient expertise to discharge their functions.
Do you therefore agree that spatial units will have to be more specifically defined? The evidence that we heard suggested that SSSIs may have been drawn up at a time when a different definition was used, so the biogeographical definition that we are seeking would, in fact, be better. Would that be possible or would it create an awful lot of work to achieve that?
I do not think so. After all, the selection criteria for SSSI sites are based on the Joint Nature Conservation Committee guidelines, which remain in use and in force. The areas of search are simply an administrative mechanism and have been a convenient method of dividing up the country when identifying SSSIs. As you rightly point out, the bill has given wider recognition to the biogeographic frames of reference, which adds to, but does not overly complicate, how we enter into the selection process.
Thank you.
Does anyone else have questions on part 2?
I would like to return to one of the representations made by the Natural Environment Research Council and to a point that I put to the SNH witnesses. NERC said that the bill represented an opportunity to produce a comprehensive strategy and introduce an accredited local sites system with site-selection criteria and legislative support. Do you have any comment on that?
We tend to deal with each site on its merits and on a scientific basis. Objective criteria and a scientific analysis are applied. It is inherent in the very title—sites of special scientific interest—that that is the basis of selection and the reason why we have notification and designation.
So you do not see the bill as including sites that are not SSSIs but which are described as near misses.
Under the existing statutory provisions, if representations are made to SNH about an area that comes within the ambit of the scientific criteria, SNH is obliged to consider whether it ought to begin the selection process. Once that process is in train, the site ought to be designated if it meets the criteria. The provisions exist, although Maureen Macmillan's example was surprising and has raised a slight query.
The bill will place a duty on public bodies to consult SNH if, in carrying out their functions, they may affect an SSSI. It is clear that public bodies are supposed to further the conservation of the site involved. However, it is not clear whether the provision includes public bodies that might affect all SSSIs in carrying out their functions. I am thinking, for example, of SEERAD designing agri-environment schemes or bodies devising forestry grant schemes. Is the bill meant to cover such cases?
If the policy applies to an individual landowner, tenant farmer or land manager who seeks to take up a forestry or agricultural scheme, that will not get them out of being caught by the mischief of the management arrangements for an SSSI. If a person is caught by the mischief of the bill and is signed up to its provisions on how to manage a piece of land, they cannot use a more general instrument that conflicts with the obligation that has been placed upon them—they are not at liberty to claim that they are simply using another Government instrument. That person will still have to comply with the management agreement for the administration of the designated land.
I accept that, but I wonder whether the bodies that devise general schemes will be obliged, in drawing up such schemes, to consult with SNH on the possible implications for SSSIs.
We would consider carefully such a scheme if we thought that it would deliberately run contrary to the requirements for SSSIs. However, when one tries to produce a general instrument with a wide application, one does not want to redefine it and find out that it has been narrowed unnecessarily. I take the point that you are driving at, but if an individual who has entered into an arrangement about the management of a piece of land and the activities that will be permitted applies to use another instrument, they cannot do so in the knowledge that they will be in breach of the obligations that the bill will place on them.
The bill states that public bodies
I think that that is what the bill says. The bill places upon public bodies a duty in relation to biodiversity. I think that people are being a bit narrow if they think that a local authority will be able to meet its biodiversity duty if it does not have regard to the requirements of the biodiversity strategy. A frequent problem with bills is that everyone wants everything to be absolutely specified at every line of the bill. I understand that, because people get nervous, but one must consider both the duty that is placed on local authorities and the things that they will have to take into account in discharging that duty. Clearly, if they are being asked to conserve biodiversity they cannot simply say, "We will just think about it." They have duties under the biodiversity strategy to which they will have to have regard. Frequent examples of such circumstances arise with every piece of legislation.
We would like to pick up on that issue in particular. Some land management groups have expressed concerns about what they see as restrictions on their ability to manage the land. It was suggested that the difficulty in changing land management practices could prevent them from reacting or adapting to improve their land, which could remove the asset value of the land. That was certainly the view of land management groups on the restrictions that are placed on them. Do you have any views on that?
I can understand that people are trying to protect the status quo. The whole thrust of our approach is that what they do is perfectly legitimate and should continue. Under the previous system, there was a long list of operations for which consent was required. As a minister, I have received many letters that say, "This is absolutely outrageous. We've just seen this list and we're not able to do all these things. We'll have to close down." However, we write back to them and say, "No, these are the activities for which you require consent, because potentially they may damage the particular habitats and biodiversity that have been identified within that SSSI." If you go round the country and get people to engage with you, you find that they are somewhat surprised by that explanation, and that they have been very put off by the list.
I want to ask one final question on this part of the bill, on the new statutory purpose of SSSIs. That provision has been extensively welcomed, but there are some questions about the scope of the statutory purpose. One particular issue was the rarity, conservation value and irreplaceability of some sites, as well as the representativeness of diversity. That issue was raised by quite a few witnesses and we put it to SNH earlier this morning. Would you like to comment on it?
The concept of rarity is enshrined and addressed in large measure in the existing selection criteria. That will not change. The new emphasis on representativeness encompasses uniqueness. If there is only one example of a certain type of site in Scotland, a national series will not represent properly the natural heritage of Scotland if that site is not included. Irreplaceability is a much less well-defined concept. Many sites might be irreplaceable but not all need to be protected. The concept of rarity has raised a lot of questions in the written submissions. Rarity remains not only a concept, but part of the criteria in the JNCC list. That is enhanced by placing an emphasis on representativeness, which encompasses the question of potential unique status. We will not get a designation unless issues of rarity are taken into account as part of the selection criteria, which the bill does not alter.
I will take questions on part 3, which is on wildlife crime.
I have a couple of questions on the provision to ban possession of pesticides, which has been welcomed generally. I live in the Black Isle and I know about depredations of red kites through the use of bait poisoned with pesticides. How are you going to enforce the provision? It has been argued that a power of entry and inspection is needed. Is there a possibility of an amnesty so that people can hand in a pesticide rather than dump it in the nearest burn?
The way that the provisions are fashioned in the bill means that we will have to make an order specifying which pesticides we seek to ban. There will have to be consultation on that. We might need to have regard to how we encourage safe, proper and orderly disposal of such pesticides. Within any consultation process there is an opportunity of proceeding by way of statutory instrument, which will allow us to do that. We will then introduce an order specifying which pesticides we seek to prohibit under the bill.
What about enforcement?
Enforcement is covered by section 19 of the Wildlife and Countryside Act 1981, which part 3 amends. Powers of entry for the police are specified already.
Do those powers allow the police to look for pesticide?
The powers relate to any offence under part 1 of the 1981 act.
Would that include keeping pesticide?
Yes.
In some of the evidence that we have taken from various sources there is a suggestion that SEERAD is opaque in relation to both general and specific licences to kill birds and animals under the 1981 act. We are interested in how widely the information was spread about licences that were granted. Are they advertised as being widely available? How quickly are they made available? The Scottish Gamekeepers Association is concerned about its work in relation to specific birds that are pests and which would otherwise be protected. Let us try to get some answers about that from you because it is of concern to me that, although SEERAD seems to be working away quietly, it is difficult to access a licence.
You cannot expect me to accept that criticism fully, but we accept that we could improve the wider dissemination of information on the licensing procedures and who qualifies for licences. One can always improve such things and therefore details of our licences, what they can be used for, who can apply for them and how they can be obtained will be published on the environment group page of our website from December 2003. The information is available now, but I accept that people still need to know where to go to get it. In the interests of modern communication, we will place the existing written material on the website, which might make information that already exists more accessible.
Is there any room for appeal if applications for licences are turned down?
There is no formal appeal, but anyone who is aggrieved by a ministerial decision can always challenge that decision in the courts as being unreasonable.
The matter has to be dealt with quickly if the problem is to be solved. It seems that the process is not as transparent or as speedy as it ought to be. Can you give us some assurance not only that notification of such matters will be transparent, but that a review of how the licences work will commence?
I preface my remarks by saying that I appreciate that persons who have given you evidence are seeking swift access to licences. However, I do not accept that speed is always the key element; there has to be a proper procedure. I do not wish to commit myself further, because there are conflicting views—there are people who believe that they ought to have received a licence and there are people who have not received a licence for, we believe, good reasons. I do not wish to enter into individual cases, but I will reflect on the evidence that has been put to you and on Rob Gibson's question.
That would be useful, because we raised the issue with SNH this morning. The length of time that it takes to get a decision on a licence, for or against, is an issue that we are keen to pursue, particularly given the reasons why people put in an application in the first place. As a result of our visits, the committee is keen to see more transparency in the operation of the process—and a sense of buy-in at a local level—in relation to how judgments are made on the balance between different species types, what information is widely available in a local community and how often that kind of information is considered. Members were interested in the biodiversity element.
A related issue was access to information about who held licences. Apparently, that information was not available, which seemed strange given the freedom of information legislation.
We are aware of that point being made about the designated areas and are making attempts to control the matter. The common protection of broods or roost grounds is difficult, because there is no overwhelming evidence to suggest that all species always return. I know that there are examples of species doing so—where that happens, steps are taken by the respective organisations. However, it is difficult to have that kind of blanket provision for all species. I would be happy to look into the matter, but I am not sure that the bill could provide such protection. Duncan Isles may want to say something about that.
On the issue of roost sites, we are well aware that that suggestion has been made by the RSPB among others. However, we are not aware of any hard evidence to support the assertion that it is a good idea. It may be a good idea, but we are not in the business of making legislation just because something appears, superficially, to be a good idea. We would want to get some hard data to back that up.
Another point was raised about what is and is not included in the bill. Apparently, the bill's definition of a wild plant includes fungi, but it is not clear whether it includes algae such as seaweed, because algae are excluded in some modern taxonomic systems. Assurance has been sought that we intend to include algae under the definition of a wild plant.
We would look carefully at that issue. Clearly, the bill addresses the position of fungi and we are satisfied that the definition of a wild plant under the bill—it is obviously not a scientific definition, but a legal definition—includes all types of plants and plant-like organisms. It certainly includes fungi and seaweed. Given that those organisms already appear in schedules to the 1981 act and are regarded as plants for legal purposes, the definition is satisfactory as far as we are concerned.
On a completely different matter, we have taken a lot of evidence about the pros and cons of snaring. It has been suggested that training and compulsory accreditation should be required for people who set snares. Would you care to comment on whether that is desirable, necessary or practicable?
I do not think that we should make such training compulsory. I cannot, off the top of my head, recall the gamekeepers' evidence to you on that point. By definition, gamekeepers are supposed to be professionals who deal with such matters, so one would hope that they would wish to avail themselves of training, formally or informally, in using snares. I will have to check the evidence. I would be reluctant to introduce a general provision when certain people are recognised as being highly competent in that field. I would be interested if you could point out to me where, in the evidence, there has been a suggestion that the gamekeepers do not have the competence to deal with a matter that is very much within their purview.
It was never suggested that gamekeepers were not competent, but one body made it clear that it had such training schemes and that it was desirable for people to have slightly more formal training. I merely ask the question.
I am reluctant to impose on any professional group or body without prior consultation a training requirement that may be on its list but may not be the only matter that comes within its remit.
We received powerful representations about snaring from animal welfare groups, which are seeking a complete ban on the practice. What is your view on that? In the absence of a ban, how enforceable are the provisions in the bill, given the nature of the terrain in which people set snares?
I appreciate that there is a body of opinion that holds the view that you set out. We are satisfied that the provisions of the bill are wholly compatible with the Bern convention. Legal snares set correctly are a form of restraint that the convention permits. The provisions have been carefully drafted to ensure that they are legal under the convention.
One of the significant provisions of the bill that gamekeepers, among others, have welcomed is the one that limits the right to set snares on land to people who are the owners or occupiers of that land—the land managers—or individuals whom they authorise to do so. That places snaring policy for a piece of land in the hands of the people who know that land best. We are seeking a situation in which there will be a significant degree of self-enforcement and enforcement by people on the ground.
Would a ban on snaring be more enforceable than trying to police bad snaring practice?
That is to advance the argument that snaring is not a necessary part of habitat control. There are two separate arguments. If we accept the argument that snaring is not a necessary control—I am not sure whether you are arguing that—obviously we should move to a complete ban. In that situation, we would not necessarily find out who was setting snares and breaking the law. I am not sure that what is proposed will change the balance because, as I said, the vast majority of snares are set within the provisions of the law. Unfortunately, on a minority of occasions, they are not; in those cases, they give rise to welfare issues that are highly undesirable.
I see two members who both want in on this issue.
Minister, I accept the points you make about snares—they are part of the management procedures that we need in our countryside—but concern has been expressed about enforceability in relation to checking snares every 24 hours. Would you consider extending that period, perhaps to 26 or 28 hours, to allow slightly greater flexibility and to enable efficient management of the new system?
As I hinted in my earlier answer, the provisions of the 1981 act are intended to ensure that snares are checked at least once a day, which is once every 24 hours in normal speak. We know that the guidance from the British Association for Shooting and Conservation recommends that checking should be done twice a day. The original intent is there and it is in the 1981 act. Clearly, if other evidence were adduced, I would reflect on it, but we believe that the current provisions are adequate. The issue is more about people not observing the existing legislation than about the need for new provisions.
Traditionally at this stage in the consideration of a bill, the minister's appearance before a committee gives members an opportunity to have a go at his bill. However, I have to say that the provisions in the bill on snaring are extremely good.
We are doomed, convener, doomed.
The bill sets out the provisions in such a way that it is easy to tell whether a snare is likely to be illegal. However, the gamekeepers were concerned about the policing of the legislation. Where a gamekeeper or any other individual who has the right of responsible access to the countryside comes across a snare that, under the bill, is clearly illegal and they decide to take action by removing that snare, is there a danger that they will be guilty of an offence if they are in possession of that snare?
The provision in the legislation is so directed that the offence is the setting of the snare; simple possession is not specified as the offence. That makes it less likely that anyone will bring an action for simple possession, because the definition in the legislation of the offence involves the setting of a snare.
However, does that, in effect, make it more difficult to pursue someone who has set a snare illegally?
It might, but if we explicitly made possession an offence, that would render impossible the public duty position that you outlined. That is the balance. That is why the legislation relates to the setting of a snare. Current thinking is that that enables a gamekeeper who comes across something illegal on his land to remove it, for the benefit both of other persons enjoying that land and of the wildlife on that land. If we were to do anything else, that could have the reverse effect and prevent the removal of illegal snares.
When we took evidence, we asked about alternatives to snaring, especially where snares are used to deal with rabbit populations. It was suggested that there are alternative methods such as shooting and, in particular, gassing of rabbits. In your view, is it desirable that further chemicals should be licensed for disposing of rabbits in that way, or do you believe that we should not take the artillery and poison gas route as an alternative to snaring?
As a general principle, I would be very reluctant to take such a route. When there is an endemic outbreak of a disease such as myxomatosis, we must have regard to specific provisions under different legislation to deal with it. I do not contemplate taking the route that Alex Johnstone describes when protecting wildlife generally in the context of the bill, as opposed to dealing with a disease outbreak.
Your evidence has been very useful. I will read the bill again, because it is not clear to me how all the different subsections relate to one other or are meant to do so. Members need to explore that issue and to get it clear in their minds what the bill means. People on the ground will not cart copies of the bill around with them.
The bill calls on land managers, landowners and agricultural users to refocus on what they ought to do, rather than necessarily calling on them to put in place a range of measures and actions that will result in vast increases in expenditure. Apart from introducing a number of new concepts that will enable us to tackle the issues that we are addressing, the three main parts of the bill are about refocusing people's attention and raising awareness. We need to consider how to achieve a higher level of awareness in those who work on the land and have ownership of it.
After scrutinising the financial memorandum, the Finance Committee asked us to seek an assurance from you that existing budgets will be able to nurture and sustain satisfactorily any culture change in relation to nature conservation. In particular, the committee highlighted the issue of wildlife protection officers.
We certainly believe that to be the case. As we contributed to the consultation on the financial memorandum, we said that we did not believe that the current budgetary provisions would give rise to a huge bill. I am not suggesting for a minute that there will be no changes in expenditure heads. However, when people refocus on what they are trying to do and redirect their efforts, they also have to consider existing practices that are not required. One of my officials has passed me a figure. In relation to criminal activity, although we could achieve much higher levels of potential prosecutions, the suggestion that in the great scheme of things there will be an enormous burden on authorities is misplaced.
The second issue that the Finance Committee wanted us to raise with you was the cost of the biodiversity strategy, particularly the relative cost of public authorities signing up to the activities that might be contained in the guidance. We have been exploring with other witnesses whether there should be a requirement in the bill for people to implement the biodiversity strategy. Will you comment on that?
There is no question but that safeguarding biodiversity will require all those on whom the bill will place a duty to think seriously about how they conduct their operations. The major advances for most of those public bodies are about refocusing their attentions and recognising that they have such duties. We are talking, particularly in relation to public bodies, about fundamental changes in working practices and culture change. I am not wholly persuaded that a major cost will be attached to that. The bodies in question must recognise that the bill will place different duties on them, but if they think through what they have to do, they will realise that it is about changing their practices, culture and attitude towards the requirement to safeguard biodiversity.
I want to flag up a concern that I might raise at stage 2. In the report from the Finance Committee, there is reference to questions about funding, particularly in relation to SSSIs and measures for preserving flora and fauna. SNH suggested in an answer that a degree of additional funding might be available to landowners through the rural stewardship scheme and the Scottish forestry grant scheme. I am prepared to accept that that is the case. However, given that it is hoped that the bill will be revenue neutral, are we talking about the use of funds for a purpose that is common to the purpose of the rural development regulation but not entirely representative of it? As a consequence, funds could be used for that purpose, which is an approved purpose, or they could be used for other purposes relating to the rural development regulation that do not relate specifically to preserving natural heritage. Is that solution to the funding problem not strictly revenue neutral if it undermines other potential programmes that do not fall within the category?
No.
We will leave that exchange.
I am sorry; I do not wish to be facetious. I hear what Alex Johnstone is saying, but we must understand that rules apply to the schemes to which Eleanor Scott referred earlier.
I may wish to return to the subject in the stage 1 debate.
Alex Johnstone can read the Official Report of today's exchange.
I can sense a thrill going around the room.
Highland Council pointed out in its evidence that it is in a catch-22 situation with regard to finance. It needs to employ specialist ecological staff, but current funding for those staff runs out in 2004. The posts are funded by all sorts of little streams of money that are quite difficult to juggle. Highland Council is looking for a commitment from the Executive that funding for biodiversity officer posts would come through grant-aided expenditure. That would mean that councils would not have to draw down funding from all sorts of different sources that cannot be relied upon in the medium to long term.
I am not in a position to give any such undertaking—unless I want to leave my life open to being terminated by the Minister for Finance and Public Services. I can say, however, that we would be happy to have Highland Council's evidence. We need to know about the funding streams. We also need to establish what current conservation moneys are allocated under GAE. As I said, we would be happy to have that conversation. At this stage, however, I cannot give an undertaking.
I would appreciate it if the minister would have that conversation with Highland Council.
I want to raise some issues that have been put to us by the organisation Scottish Badgers, which would like to see
I am not aware whether that falls within the scope of the bill. We would need to seek further information on the issue. I am aware that there is no power of arrest. Before we make an indication either way, however, we would want to hear more evidence on whether that would present a significant difficulty in terms of the enforcement of the bill.
Would the Executive be prepared to look at whether there is scope to extend the bill to pick up those points?
As always, two issues arise with a question like that. The first is to establish precisely, on the basis of the evidence that has been submitted to the committee, what is the impact and what is our view on that. The second is that we always have to be careful that bills—including their long titles—are well constructed to ensure consistency and competence throughout. Although the issue may need to be addressed, it does not necessarily follow that it is capable of being addressed in the bill. We will have to look into the questions that have been raised.
I am looking round the room, but no member is indicating that they have an instant question. I thank the minister and his officials for coming to the committee this morning and for answering our questions. That concludes our oral evidence at stage 1 of the bill.
Members indicated agreement.
Right. We know exactly where we stand on our stage 1 report. I thank members for that. Our next meeting will be held on 3 December in committee room 3 at 10am.
Meeting closed at 13:35.
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