Chamber and committees

Good morning, everyone.

I will begin with the amendments that Edward Mountain led with and then move on to the others.

The effect of amendments 70 and 98, in Mr Mountain’s name, would be that a person would only have to intend to kill a wild mammal after flushing it from cover. That could create another loophole that could allow a person to prolong the hunting of a wild mammal as long as they intend to kill it, which could clearly be detrimental to the animal’s welfare.

The individual’s intention is also incredibly difficult to prove. That could, therefore, create enforcement problems because, if someone is searching for or flushing a wild mammal using a dog for one of the purposes in sections 3 or 6, they cannot achieve that by simply intending to kill it at some point. It is entirely right that, in those circumstances, the law requires that a person take action to kill the wild mammal

“as soon as reasonably possible”.

For those reasons, I cannot support those amendments.

Amendments 29, 32, 140 and 141, in the name of Rachael Hamilton, would remove the condition to kill a wild mammal

“in a way that causes it the minimum possible suffering”

and replace that with the term “as humanely as possible”, thus reintroducing a test from the Protection of Wild Mammals (Scotland) Act 2002. On the face of it, the amendments might not appear problematic, but we have good reason to require that the wild animal is killed in a way that causes “minimum possible suffering”, as we included in the bill. We deliberately did not use the word “humane”. We considered what that would require in practice, and we tried to be as specific as possible. To do that, we looked to the dictionary definition of “humane”, which is:

“designed or calculated to inflict minimal pain”.

The word “pain” is important there, because we have deliberately referred to “suffering”. The difference is important, because using “humane” would mean that we consider only the physical humaneness of the kill, whereas “suffering” also includes the circumstances that the wild mammal experiences. If we use the term “minimum possible suffering”, a person would not be allowed to put the animal through fear, stress or anguish that causes it to suffer unnecessarily prior to actually killing it. I believe that that is a higher standard and one that we should seek to use. For that reason, I cannot support those amendments.

Amendments 36 to 39, in the name of Rachael Hamilton, would add the conditions to section 3 that dogs may be used to kill a wild mammal in circumstances where the animal has been injured but not killed, the animal is inaccessible and cannot be killed by shooting, or just that killing it in that way is considered humane in the circumstances. Those amendments would, in effect, allow a pack of dogs to kill a wild mammal in certain circumstances, which I think ought to be clear is entirely contrary to the principle of the bill. In fact, we have been clear from the very beginning that preventing and banning the chasing and killing of a wild mammal by dogs is the fundamental premise of the bill, and I think that those provisions could create a very obvious loophole.

In addition to the fact that I cannot condone a pack of dogs killing an injured wild mammal, I am not confident that it would always be possible to establish that a mammal had genuinely been injured prior to being killed by dogs, which would, again, create the uncertainty in enforcement that we have sought to avoid. For those reasons, I cannot support those amendments.

Similarly, amendments 69, 71, 97 and 99, in Edward Mountain’s name, seek to allow a pack of dogs to kill a wild mammal, but do so without any caveats at all. Under those amendments, in our interpretation, a person would only have to attempt to kill a wild mammal before they could set a pack of dogs on it. The amendments would create the glaring loophole of allowing a person to make a token gesture of searching and flushing with two dogs, shooting, missing and then carrying out a hunt with a full pack of dogs. That, again, is contrary to what we are pursuing in the bill, so I cannot support those amendments.

Amendments 114, 120, 125 and 128, in the name of Colin Smyth, pertain to falconry. We rehearsed some of the discussion on this point in last week’s meeting but, to reiterate, falconry is permitted in Scotland as long as it is done in accordance with all relevant legislation. The bill is not about the ethics of wildlife management, or hunting, or falconry for that matter; it is about the regulation of the use of dogs while undertaking those activities. Some falconers will use one or two dogs to flush wild mammals to waiting birds of prey, which is why the bill contains provision to allow wild mammals that have been flushed to be shot or to be killed by a bird of prey. That aligns with the position under the 2002 act.

I understand that, on welfare grounds, some people think that falconry should not be permitted. However, as we discussed last week, it would not be correct for us to use this legislative vehicle to potentially ban lawful activities by the back door.

I wholly support the principle of Colin Smyth’s amendments 115, 121, 126 and 129. I have been very clear that the chasing and killing of wild mammals using dogs has no place in modern Scotland, and therefore I agree that killing a wild mammal in a way that causes it the “minimum possible suffering” can never mean allowing it to be killed by dogs.

Having said that, I have one or two concerns that agreeing to those amendments in their current form could create a degree of inconsistency in the bill. Therefore, if Colin Smyth agrees not to move the amendments today, I would be happy to work with him to draft new amendments at stage 3 that would maintain the consistency of the language that is used in the bill and fulfil what I think he seeks to do with his amendments.

Finally, amendments 203, 223, 226 and 230, in the name of Rachael Hamilton, caveat the condition that,

“if an attempt to kill the wild mammal ... results in it being injured but not killed, reasonable steps must be taken to kill it in a way that causes it the minimum possible suffering”,

by adding the words “in the circumstances”.

Those amendments are not necessary. The bill as currently worded implicitly provides that the minimum possible suffering may depend on the circumstances, because a person can act only in the circumstances in which they are in. The existing condition refers to reasonable steps being taken; therefore, the condition has already been caveated.

I will try to put that simply: the bill already recognises that the reasonable steps that will be taken to kill a wild mammal in a way that causes it the minimum possible suffering will depend on particular circumstances. I worry that, by adding the wording that Rachael Hamilton has suggested, it could be perceived that those provisions allow for the use of dogs to kill a wild mammal in certain circumstances, which is something that I want to avoid. For those reasons, I cannot support those amendments.

When we use the term “relay”, we probably all have different views of what constitutes a relay. In the context of rough shooting, for example, it is permitted and lawful to use two dogs for the activity, but there could be another two dogs on a lead, or somewhere else, that could be swapped in. Therefore, Edward Mountain’s point about the dogs becoming exhausted in the course of a lawful activity is taken account of.

My point is that nobody should use a relay—albeit it that we do not have a definition of that—in order to deliberately prolong the flushing. The only instances that I have heard of are those that Colin Smyth and Ariane Burgess referred to, which involve a relay—if we can call it that—being used to chase stags or course hares, but—

Like Rachael Hamilton, I ask members to bear with me as I go through the amendments.

I begin with amendments 1, 3, 5, 7 and 13, in the name of Ariane Burgess, which seek to remove section 5 entirely from the bill. In developing the bill, I have sought to balance the highest possible animal welfare considerations against the need for effective wildlife management, as I accept that the latter is necessary in our rural nation. I know, however, that the use of dogs underground is a very polarising issue, and Ariane Burgess spoke clearly to some of the live welfare concerns. I understand why she lodged her amendments, because I, too, have heard the evidence about the use of dogs underground and how that can pose a risk to the welfare of both the wild mammal and the dog.

That is why the bill places a strict limit on the purposes for which dogs can be sent underground and the species of mammals that they can be used to search for and flush. Ultimately, from the work that my officials and colleagues and I have undertaken in developing the bill, it has not been clear that there is a viable alternative when it comes to fox control. No more humane methods have been put to me that would fulfil the same function. In fact, it has been put to me that some less humane methods may be used, including blocking up a den, which would result in starvation. I think that everybody would want to avoid that. After giving the matter a great deal of thought and weighing up all the evidence that has been put before me, I am therefore unfortunately unable to support those amendments.

Amendments 73 to 96, in the name of Edward Mountain, would—as we have discussed—add weasels, stoats, polecats and ferrets to the list of wild mammals that can be searched for or flushed using a dog underground. I have seen no evidence that it is necessary to allow the use of dogs underground to control those mammals. As I rehearsed earlier, the polecat is one of Scotland’s rarest mammals and a priority species under the United Kingdom biodiversity plan.

The welfare concerns that are inherent in the use of dogs below ground mean that we must ensure, as I just said in responding to Ariane Burgess’s amendments, that these provisions are drawn as narrowly as possible. As Jenni Minto described, projects on Orkney and throughout the country have used other effective methods, such as trapping, to ensure that those species can continue to be controlled in the best way possible. I will therefore not be supporting these amendments.

I turn to amendments 162 to 167, in the name of Jenni Minto. I have listened carefully to the arguments that have been put forward and, for all the reasons that Ms Minto outlined, I will support those amendments to section 5. We have seen plenty of evidence that other effective methods of mink control are available, and the provision on mink is in line with my desire to see the provision for dogs underground being drawn as narrowly as possible.

Amendments 212, 214, 216, 221, 222 and 225, in the name of Rachael Hamilton, would allow the use of dogs below ground to search for any species of wild animal by removing the reference to fox and mink in the bill and replacing it with a reference to any animal. As I said in response to Edward Mountain’s amendments, I have not seen any evidence to justify the use of dogs underground to control other species of mammals. In fact, everything that I have heard about the welfare concerns around sending dogs undergrounds leads me to the conclusion that, as I said, we must draw these provisions as narrowly as we can.

Amendments 213 and 215, in the name of Rachael Hamilton, seek to amend the section 5 exception to include

“from an enclosed space within rocks or other secure cover above ground”.

In my view, that would widen the reach of section 5 to include searching for and flushing wild mammals above ground as well as below ground.

Rachael Hamilton alluded to the wording in those amendments being taken from section 2(3) of the 2002 act, and she was right to quote Lord Bonomy’s comments on terriers. However, I ask her to note his comments that

“Consideration should be given to framing section 2(3) more narrowly by removing reference to using a dog under control to flush a fox from an enclosed space within rocks or other secure cover above ground.”

The amendments in Rachael Hamilton’s name could reverse the action that we have taken to implement Lord Bonomy’s recommendations by separating the use of a dog below ground in a different section, which could create an unnecessary and confusing overlap between the exceptions. I therefore cannot support the amendments.

Amendment 117, in the name of Colin Smyth, would require a person using section 5 to intend to kill the wild mammal “immediately by shooting”. Although the amendment may not appear to be problematic, and I have some sympathy with what Colin Smyth is seeking to achieve, it would create two anomalies, which I will share with the committee. The first is that a requirement to shoot “immediately” would be at odds with the consistent use of the wording

“as soon as reasonably possible”

throughout the bill. One of the main themes of Lord Bonomy’s review was the need for consistent language.

The second anomaly is that, in practice, there is always the chance that, when a person is searching for a wild mammal underground, that mammal may not actually emerge. Although the person may have intended to shoot it, therefore, their intention cannot determine what happens in practice, so there could be a difference there. I understand Colin Smyth’s concern, and I reassure him that section 5(3)(d) states that,

“if the fox ... is found or emerges from below ground, it”

must be

“shot dead, or killed by a bird of prey, as soon as reasonably possible”.

I think that that achieves a lot of what his concerns are pointing to. That is before we consider the practical need to ensure that any dogs—or indeed people, as Edward Mountain suggested—are out of the line of fire before “immediately ... shooting”. For those reasons, I cannot support the amendment.

I move swiftly on to amendments 26 and 217, in the name of Rachael Hamilton. As a result of welfare concerns, section 5, which facilitates limited control underground, has deliberately been drawn as narrowly as possible. I have heard evidence that it is sometimes necessary to deploy dogs underground in the course of controlling foxes to protect livestock, but I have heard no evidence whatsoever on allowing the use of dogs underground for environmental benefit. The current legislation does not allow dogs to be used underground, for all the purposes that are set out in section 7, which is on environmental benefit. Those amendments would therefore go further than the law as it stands, and for that reason I cannot support them.

Amendments 218 and 27, in the name of Rachael Hamilton, seek to amend section 5 to allow the use of more than one dog underground. No strong evidence was brought forward at stage 1 to support amending the bill to enable the use of more than one dog underground. Restricting the number of dogs that can be used to one is in line with the recommendation that was made by Lord Bonomy. It also reflects best practice, as set out in the code of practice by the National Working Terrier Federation, which already suggests one dog. Moreover, animal welfare groups have said that, if dogs are to continue to be used underground, a one-dog limit should apply. In addition, I draw the committee’s attention to the fact that the Hunting Act 2004, which governs the use of dogs underground in England and Wales, limits the number of dogs that can be used underground to one, albeit for different purposes. For those reasons, I do not support these amendments.

Amendment 219, also in the name of Rachael Hamilton, seeks to remove the section 5 requirement that a dog that is used underground must be “under control”. Ensuring that dogs that are being used to control wild mammals are kept under control is a key tenet of the bill, and it is embedded in all the exceptions that set out when and how dogs can be used. I can see no justification for waiving that fundamental requirement in respect of dogs that are being used underground. In fact, given everything that we have discussed with regard to welfare considerations, it is vital for both the wild mammal and the dog that the dog can be controlled when it is underground. For those reasons, I cannot support the amendment.

Amendment 28, in the name of Rachael Hamilton, seeks to include the wording

“or dogs as the case may be”

after the word “dog” in section 5(3)(b). I do not support the use of more than one dog underground. However, even if I did, the amendment would still be unnecessary given the application to the bill of section 22(a) of the Interpretation and Legislative Reform (Scotland) Act 2010, which provides that

“words in the singular include the plural”,

unless the context requires otherwise.

Amendment 220, in the name of Rachael Hamilton, seeks to add to section 5 the condition that the

“wild mammal ... being searched for”

must be

“flushed as soon as reasonably possible after it is”

found. I understand that the wording is imported from the 2002 act; I am always cautious about that. In drafting the bill, I intentionally did not include that in the exception because of the unpredictability of knowing what will happen when a dog is used underground, which is inherent in the practice.

During stakeholder engagement, those who work with terriers underground cited examples of where the terrier and fox would stand off, which would result in the fox not being flushed at all and would end up with both animals being dug out. I am sure that this is not what Rachael Hamilton intended, but amendment 220 would make such a situation, which is obviously important for the welfare of the animals, illegal by allowing a fox only to be flushed if it is found, not dug out or left underground without harm. Therefore, I cannot support it.

Amendment 224, also in Rachael Hamilton’s name, amends section 5(3) to add a list of further conditions that must be met when using dogs underground.

The welfare of a dog that is being used underground is clearly important. It is already covered by the Animal Health and Welfare (Scotland) Act 2006, which came into force after the 2002 act, which we are amending. Section 19 of the 2006 act provides that

“A person who is responsible for an animal commits an offence if—

(a) the person causes the animal unnecessary suffering by an act or omission, and

(b) the person knew, or ought reasonably to have known, that the act or omission would have caused the suffering or be likely to do so.”

Despite that, I am open to it perhaps being helpful to clearly set out in the bill the specific conditions that we think should apply in this specialised and difficult area. For that reason, I am happy to accept the principle of amendment 224 but would like to consider the precise wording further and come back, if the member agrees, with an amendment that achieves a similar effect at stage 3.

Yes—that is similar to the use of dogs in the course of hunting throughout the countryside. Again, there is a point about consistency.

For the reasons that I have set out, I do not support amendments 133, 135, 137, 139 and 143.

I turn to Colin Smyth’s amendments 123 and 146, which would remove the ability of a person to use dogs to search for or flush wild mammals for falconry. As I set out in speaking to amendments in the name of Ariane Burgess, the bill is about regulating the use of dogs when they are used in the course of hunting wild mammals. Falconry is a lawful form of hunting and, as long as dogs are used in accordance with the requirements of the bill, it is not justifiable to single it out and apply additional restrictions, just as it is not appropriate to single out rough shooting and apply lesser restrictions.

We must guard against anything that would ban an otherwise lawful activity by the back door, not least because there has been no consultation on any proposal to effectively ban falconers from hunting, and that does not fall within what is intended by the bill.

I move to amendment 227, in the name of Rachael Hamilton. I do not support this amendment, because it is not necessary and because it risks creating uncertainty and inconsistencies throughout the bill. We have worked very hard to avoid that, and we have been praised by Lord Bonomy for so doing. However, I seek to reassure Rachael Hamilton that what she is attempting to achieve is already provided for by the bill. In my view, therefore, the amendment is not necessary and would create inconsistencies in expression.

In addition, as I mentioned previously, creating special arrangements for a single recreational pursuit would open up the bill to abuse by those who are looking for loopholes to get around the law—

To pick up on the last point, I think that we discussed last week that, for the purposes of the bill, a pack is defined: it is more than two dogs. As I was happy to put on the record last week, I understand that dogs that are generally used in rough shooting, such as gun dogs, are well trained and do not chase or form packs.

However, as I said last week, that gives me confidence that rough shoots will be able to comply with what is a minor adjustment under the bill in order to provide consistency of application to all uses of dogs in the countryside in the course of hunting in Scotland. I hope that that clarifies the member’s point and puts on the record what she was hoping to draw out.

Amendments 100 to 102, in the name of Edward Mountain, seek to amend the section 6 definitions of deer stalking and remove the word “sport”, for the reasons that have been explained.

Edward Mountain mentioned the different purposes of deer stalking, but I reassure him that, although section 6 covers recreational pursuits, we absolutely acknowledge that there are other reasons for pursuing deer stalking. For example, deer stalking for tree protection or other environmental reasons would be covered under section 3 or section 7. I understand that, for some, the motivation for taking part in those pursuits may not always be sport; we discussed last week that the provision of food may be involved, and that deer stalking could be undertaken for a combination of reasons. However, the use of the term “sport” is helpful in this context—

Yes—I have no problem with that at all. I would be happy to discuss that and to look back at some of the old legislation with Edward Mountain. For today’s purposes, however, I cannot support these amendments as they stand, as I do not think that they are required or, indeed, helpful.

Finally, I turn to amendment 228, in the name of Rachael Hamilton. I agree that killing, rather than simply attacking, should be the intention of the person who is using the bird of prey. I have listened to Rachael Hamilton’s arguments and I am happy to support the amendment.

I would not accept that. I absolutely accept the premise of the point, and the circumstances that Edward Mountain has pointed to are exactly those that the provision seeks to address—such as those examples that Forestry and Land Scotland has shared with us—but I do not accept that it would be necessary or acceptable to allow more than two dogs to undertake that activity.

I have said since the introduction of the bill that I am always happy to work with stakeholders and members of Parliament to ensure that the bill is as effective as possible. My amendments in this group are an example of my having done that. On the exception to search for injured wild animals, it was evidence provided by stakeholders at stage 1 and the recommendations of the committee at stage 1 that made the amendments necessary. The exception to search for dead wild animals was also developed after discussion with stakeholders.

I hope that members agree with my reasons for including the amendments and that they will support them. I also hope that they agree with my reasons for rejecting Rachael Hamilton’s amendment 168A. I am sorry to hear about Rachael Hamilton’s daughter’s incident and I hope that all are okay.

The amendments were developed in close consultation with stakeholders including Forestry and Land Scotland, and I have not had any evidence that more than two dogs would be required in order to fulfil the activity. It is clear to me, as I think it is to many people, that someone could easily claim that their pack of 10 dogs was searching for injured wild mammals, which would be a too-convenient cover for the illegal hunting of live wild mammals. For that reason, I cannot support amendment 168A, which would create inconsistencies and loopholes in the bill.

Amendment 148 agreed to.

Amendment 149 moved—[Màiri McAllan]—and agreed to.

Amendment 58 moved—[Edward Mountain].

I have completed that section, but I am more than happy to keep talking to Christine Grahame about it to try to clarify her points. However, if I can, I will move on, because I am conscious of the time.

Rachael Hamilton’s amendments 204, 209, 231 and 234, which would insert the word “group” into section 4, are not necessary. They do not add what she hopes they would. As I have said, “person” is not limited to individuals and, under interpretation legislation, it includes bodies such as clubs, companies or partnerships. As we have discussed, the singular includes the plural unless the context requires otherwise. Therefore, it is already possible to grant a licence to more than one person if they meet the requirements, so I ask that those amendments not be moved.

Again, I am not entirely clear what amendments 205 and 232 in Rachael Hamilton’s name seek to achieve. However, they could create inaccuracies in the bill. Sections 4(4)(b) and 4(5)(b) work together. The former sets out what a licence can or must do and the latter sets out what must be specified in the licence. Amendments 205 and 232 would break that relationship, which would cause confusion. However, I am not entirely clear what the intention of the amendments is and, if Rachael Hamilton wants to work with me to clarify that, I am more than happy to do so.

Okay, thank you.

I will try to proceed as quickly as I can.

Amendment 33, in Rachael Hamilton’s name, would remove the tests for the relevant authority to grant the licence, which are that the work would need to contribute towards a significant or long-term environmental benefit and that no other solution would be effective. Amendment 33 would remove those two key tests that have to be met before the granting of licences under section 8, which are the need for the activity to contribute to long-term environmental benefit and for there to be no other effective solution.

The “no other effective solution” test is the foundation of the licensing scheme that we are proposing, and it is designed to ensure that the use of more than two dogs is kept to an absolute minimum and that more than two dogs are used only when it is absolutely necessary. Likewise, the long-term environmental benefit test is important in section 8 because licences could be granted for up to two years, so we need to remain strict on how that test operates.

Without those two tests, it is hard to see what criteria NatureScot would apply before deciding, and I think that it would loosen a great deal of what we are trying to achieve under that section of the bill.