Chamber and committees

I am saying that I cannot support the amendment as it stands and that, between now and stage 3, I would like to have the opportunity to consider the risk, the extent of any risk and any possible solutions that we can put in place if we establish that there is such a risk. However, I cannot commit to anything further today, because that work still needs to be done.

If Edward Mountain wishes to continue with his explanation of that activity, he should do that.

I will begin with Colin Smyth’s amendments 113 and 124, which were just being discussed. I understand why he has lodged those amendments. However, they are not necessary, and they could present practical problems.

The bill states that, unless a licence has been granted, only two dogs can be used to search for, stalk or flush a wild mammal. It is very clear about that. It also clearly sets out that, when a person uses two dogs for that activity, reasonable steps must be taken to shoot the wild mammal or have it killed by a bird of prey as soon as reasonably possible. That is a watertight set of circumstances.

I do not think that the circumstances that Colin Smyth describes would ever arise. I described circumstances that involved dogs being on a lead, dogs being elsewhere and dogs being held back, which could be used as part of the activity if they were swapped in at a later date. There is no way that that could be done to pursue the same quarry—the same animal. Therefore, flushing could not be prolonged in that way.

As we discussed in the context of rough shooting, a person must only ever control two dogs at one time. There could be two dogs in the back of a Land Rover that could be got for the second half of the day, but it would not be possible for them to be swapped in with such speed that the same quarry could continue to be chased.

For those reasons, I cannot support Colin Smyth’s amendments.

Rachael Hamilton’s amendment 244 seeks to add to the bill a definition of a pack, which it defines as

“a group of two or more dogs trained for hunting, excluding working gun dogs”.

As she said, in previous committee sessions I have sought to make it clear that, for the purposes of the bill, a pack is more than two dogs. That is already explicit in the bill, and I do not think that any further definition is required.

I do not agree that there is a contradiction. The term “pack” means more than two dogs and can apply to any dogs. The issue of consistency of approach throughout the bill is one that we discussed in a lot of detail at the committee’s previous meeting. Therefore, I do not support any attempts to create different rules for different types of dogs. The bill is about regulating the use of all hunting dogs, regardless of the type of hunting that takes place. I have seen no evidence to justify an exception for gun dogs.

I have concerns not only about the substance of amendment 244 but about the way in which it is drafted. I think that Rachael Hamilton probably intended to refer to “more than two dogs” as constituting a pack, but the amendment says “two or more dogs”. In my view, two dogs do not constitute a pack; a pack consists of more than two dogs.

On the exclusion of gun dogs from the definition, it would be very difficult to establish whether a dog was a “working gun dog”. That phrase might be used in ordinary language, but it is not sufficiently clear in legislative terms. The definition risks creating a loophole that would allow people to circumvent the two-dog limit, which is a cornerstone of the bill. For those reasons, I cannot support amendment 244.

Rachael Hamilton’s amendment 242 seeks to amend the definition of “under control” by reinstating wording from the 2002 act, whereby a dog is under control if it

“is carrying out an activity for which it has been trained”.

I think that Rachael Hamilton’s intention is that that would apply to all circumstances in the bill.

One of the key principles in the bill is that, when dogs are used to search for, flush or stalk wild mammals, they must be under control. That is a cornerstone of the bill. The bill sets out that

“a person who is responsible for the dog is able to direct the dog’s activity by physical contact or verbal or audible command”.

At the end of the day, dogs are animals, and even the best-trained dogs will sometimes react in an unexpected way. I do not accept that it is enough to simply rely on a dog to carry out an activity for which it has been trained. That would be the effect of the amendment if it were agreed to. We can imagine that, in extreme circumstances, a dog could be trained for purposes that we would not wish it to carry out. I fear that the amendment would significantly widen the definition of control, which is a key provision of the bill.

I am not sure that “bureaucratic diktat from pen pushers” is a reasonable way to describe the work of NatureScot and others, but I will leave that up to the member. Rachael Hamilton will probably not be surprised by my view on this, given that we debated the amendment that I lodged in the previous session. I said then that I had listened very carefully to the discussions on the licensing period during the committee’s scrutiny.

When I spoke to amendment 158 last week, I said that I had come to the conclusion that allowing some flexibility around the period of time in which the licence’s 14 days may be used was justified. That is why I lodged amendment 158—which, to remind the committee, would see the period of time for which a licence can be granted under section 4 be the original maximum 14 days, but within a period of six consecutive months.

Of course, I have considered Rachael Hamilton’s amendment 243, which would allow the licence to be granted for up to 28 days over six months, but I remain very much of the view that 14 days is the right number for the licence to cover. It allows sufficient flexibility to deal with changes to plans due to bad weather or other unforeseen events while not facilitating any more days of hunting over the period. Having spoken widely with stakeholders, I believe that 14 days is sufficient for the licensed predator control needs of most farms and that 28 days allows too many days of activity under a particular licence, given the very real need to maintain a tight control.

Amendment 170 is a technical amendment. As has just been discussed, the exception under section 7 allows dogs to be used to control wild mammals for purposes that have an environmental benefit.

Section 7(2)(a) as drafted allows a person to use up to two dogs or more than two dogs under licence to search for, stalk, or flush wild mammals for the purpose of

“preserving, protecting or restoring a particular species”.

Amendment 170 inserts the words “for environmental benefit” at the end of that provision. Without the amendment, it would be possible for a person to use two dogs to manage wild mammals for the purposes of protecting a particular species, even if that would not amount to or result in an environmental benefit. The amendment is therefore required in order to make clear that the preservation, protection or restoration of a species must have an environmental benefit attached to it. Again, it is about consistency of expression.

I will not be supporting amendment 229, in the name of Rachael Hamilton. The reason for the inclusion of the word “scheme” in section 7 is that I believe that, where dogs are being used to control wild mammals for environmental benefit, it should be done to meet a specific objective as part of an overall plan, and not ad hoc. That is important not only for the purposes of section 7, but equally because it is linked to the issuing of licences on that basis. We must require a person to have a plan before they allow dogs to control wild mammals.

Likewise, I cannot support amendment 31, in the name of Rachael Hamilton, which is linked to amendment 229 and requires

“a definition of ... a scheme”,

although I note that it does not suggest one. Where a term is not specifically defined in the bill, it will rely on its ordinary meaning. A scheme means a plan, a design or a programme of action. It is not necessary to include a definition in the bill where a word simply takes on its ordinary meaning. The explanatory notes that accompany the bill set out that

“the requirement for a scheme means that the activity has to be planned and designed for one of the subsection (2) purposes.”

That activity could be anything from the larger-scale projects that we discussed last week—involving stoats on Orkney, for example—or an individual gamekeeper planning a deer cull. However, for any stakeholders who would like more clarity, I intend that further information about what constitutes a scheme for the purpose of applying for a licence under the section 7 exception will be set out in the licensing guidance that will be produced should the bill be passed. That information would be read across to the use of the exception without a licence—that is, using up to two dogs.

For those reasons, I ask Rachael Hamilton not to press or move her amendments.

It is exactly as I said in my previous point: it is to achieve consistency of language with the stop and search powers that we are introducing and so that those powers mirror what is in the 2002 act.

Yes.

Amendment 175 introduces powers for a constable to stop and search a person without warrant where that constable has

“reasonable grounds for suspecting that a person has committed or is committing an offence”

under the bill. It includes powers for a constable to

“search or examine any thing found in the course of a search”

and to

“seize any thing found in the course of a search”.

Where a constable has reasonable cause to suspect that a person has committed an offence under the Protection of Wild Mammals (Scotland) Act 2002 and to suspect that evidence of the offence is to be found on the person, section 7 of the 2002 act allows them to stop and search the person in question.

Of course, stop and search powers should not be conferred lightly. However, having reflected on comments that were made by the police at stage 1 of the bill’s progress through the Parliament, and having considered the powers that are available to the police under other legislation on wildlife, we consider it appropriate to include in the bill powers for the police to stop and search a person on similar terms to those in the 2002 act.

Amendments 177 to 179, in my name, change the test in the bill’s schedule for empowering a constable to enter premises from one where that constable has reasonable grounds for “believing” that a relevant offence has been committed to one where they have reasonable grounds for “suspecting” that such an offence has been committed.

Section 13 of the bill introduces the schedule that makes the provision about the powers for constables. Currently, there are powers for constables to enter premises together with powers associated with entry, including those of search and seizure. Amendments 177 to 179 make minor adjustments to the schedule so that the wording of the tests for entry and seizure of items is consistent with that for the stop and search powers.

I could move on to speak to other members’ amendments—

I am happy to, convener.