Chamber and committees

Perhaps we could discuss it at the same meeting, to save time.

I take on board Rachael Hamilton’s comments, but I put on record that I was not suggesting that the issue of farmers protecting livestock was trivial. My point was that removing the seriousness test could allow trivial activities to come within the terms of the protection of livestock; it was not that the need to protect livestock in the first place was trivial.

Again, I hope that members will bear with me, as the group of amendments is large, but I want to give the Government’s due attention to each member’s amendments.

I will follow some of the chronology that we have already had, so I will start with amendments 9 to 12 and 15 to 20, in the name of Ariane Burgess. As we know, those amendments would remove the licensing scheme altogether. The Government has always sought to balance our aim of promoting the highest standards of animal welfare with the reality that, in this rural country, as I have said, access to the legitimate control of wild mammals is required in certain circumstances.

If farmers are not able to protect their stock, they will lose lambs, poultry and other stock. That is not just an economic loss to hard-pressed farms; it is also emotionally distressing for farmers to see the killing of livestock that was under their care. We know that control can be difficult to carry out on rocky terrain, hill ground or densely vegetated areas—for example, we know that lamping may not be possible and that two dogs on their own may not be able to flush to waiting guns. That was expressly recognised by Lord Bonomy, who had very specific comments on terrain that I am not prepared to ignore.

With all that being the case, I am clear that the licensing scheme is an exception to an exception; it must be available where it is essential, but it must also be tightly regulated and controlled. The use of more than two dogs will be for specified purposes only, where there is no other effective solution, where a maximum number of dogs is specified and for a time-limited period. It will always be illegal to allow any number of dogs to chase and kill a fox. For those reasons, I do not support Ariane Burgess’s amendments.

Jim Fairlie clearly set out the reasons why he does not support amendment 21 in Rachael Hamilton’s name. Principally, that is because the decision should lie with the licensing authority and not with the applicant. I agree with his reasoning and do not support the amendment. Jim Fairlie’s formulation in amendments 191 and 171 addresses the issues that he has identified. I support those amendments to add specific examples of the information that the licensing authority may require; they are useful additions in the name of high welfare standards.

On amendment 35, in the name of Rachael Hamilton, which seeks to remove the word “serious” from the purpose set out in section 3 of

“preventing serious damage to livestock, woodland or crops”,

I point out that the “preventing serious damage” test that is included in the bill is the same as that used for section 16 licences under the Wildlife and Countryside Act 1981 and regulation 44 licences under the Conservation (Natural Habitats, &c) Regulations 1994. Removing the word “serious” from the permitted purpose under section 3 would plainly lower the test for the use of more dogs and would make it possible to use two dogs to

“search for, stalk or flush”

wild mammals, even where the potential damage to livestock, woodland or crops was trivial. What could flow from that is that licences under the licensing scheme connected with section 3 could be granted under section 4 to enable packs of dogs to be used to prevent minimal damage to livestock. In short, because the amendment lowers the test for the exception under section 3, I cannot support it.

On amendments 111, 119 and 127, in the name of Colin Smyth, which insert additional conditions that must be met before using a dog to hunt, I have considered the proposal very closely and, to me, it is unclear what kind of evidence would be sufficient to meet those tests and to whom the person in question would be demonstrating those things. Moreover, the amendments make use of concepts that are not found elsewhere in the bill; they refer, for example, to the most “humane method”, but the bill itself refers to “the minimum possible suffering”. The amendments also refer to

“the person responsible for the activity”.

The amendments would therefore introduce inconsistency into the bill, which is something that my team and I have tried very hard to avoid.

That said, I understand the intention behind Colin Smyth’s amendments. As I have said, I have considered the matter closely, and I am satisfied that the bill as drafted contains a number of tests that must be fulfilled and which are sufficient to achieve the legislation’s aim of reducing the risk of wild mammals being chased and killed by packs of dogs. The committee will be familiar with them: any searching for, stalking or flushing of wild mammals must be for a purpose that is allowed under the bill; any dog that is used in the activity must be under control; landowner permission must have been given; and reasonable steps must be taken to ensure that dogs do not join together to form a pack. I believe that those tests are sufficient to achieve the bill’s aims, and the amendments are therefore unnecessary and could cause confusion.

Colin Smyth’s other amendments—amendments 112, 118, 144, 122, 145 and 147—seek to insert into each exception a new condition with regard to the breeding season and would also remove the reference to a dependent fox or mink from section 5 on the basis that it would not be possible to hunt these animals when they have dependants. Again, I have considered those amendments closely, and I believe that they would have an impact on a land manager’s ability to undertake effective predator control at what is undoubtedly a crucial point.

As has been noted, the breeding season for foxes coincides with lambing season, when farmers are more likely to undertake necessary fox management and, under those amendments, they would be unable to do such activity at what is, arguably, the most essential time for protecting their livestock. As Edward Mountain has said, rabbits can breed all year round, and the amendments would effectively curtail the ability to control them with dogs at any point.

In my view, such issues are important, but they would be more appropriately examined for the species as a whole, rather than being considered in respect of a single type of control. Of course, close seasons for certain mammals are set out in the Wildlife and Countryside Act 1981 or the Deer Act 1991, as the case may be.

Therefore, I think that the amendments in question would cause significant issues for predator control, so I am unable to support them.

No, I do not accept that, although I am grateful to Edward Mountain for his explanation. His description of a rabbit’s behaviour is probably right, but that does not remove or take away from the two key reasons why we have included rabbits in the bill, which are parity in relation to animal welfare and the reality that people are hare coursing under the guise of hunting rabbits, which we need to try to stop.

We have spoken at length about why consistency in the conditions in the bill, especially the two-dog limit, is important. The exceptions in Edward Mountain’s amendments would undermine the bill’s aims and objectives, because ultimately packs of dogs would be able to kill and chase rabbits, so I cannot support the amendments.

I cannot support amendment 63, which would change the section 1 definition of “hunting” and conflate the activities of “searching” and “coursing” in a single activity. The effect would be that any act of searching for a wild mammal without coursing would not constitute hunting, which could remove a large amount of activity from the scope of the bill. It might mean, in essence, that unless a person was caught in the act of flushing or chasing a wild mammal, they could go out with a pack of dogs and claim that they were simply searching for wild mammals with no intention to flush or chase them.

There is legal precedent for the Government’s position in that regard. In the first Scottish prosecution of the main offence under the 2002 act, in Fraser v Adams, the sheriff accepted that, as part of the meaning of “to hunt”, it was not necessary for an animal to have been located or killed for hunting to have taken place. The definition of hunting in the bill is non-exhaustive, but amendment 63 could mean that searching for an unidentified wild mammal would not constitute hunting, which would undermine what we are seeking to achieve with the bill and would create a significant loophole.

Amendments 64 to 68, which are also in the name of Edward Mountain, are about removing weasels, stoats, mink, polecats and ferrets from the definition of “wild mammal”, thereby allowing a person to hunt them, which would include chasing and killing them using a pack of dogs.

I ask the committee to note that those species are all included within the definition of “wild mammal” in the 2002 act, which means that it is currently illegal to chase and kill them. Edward Mountain’s amendments would therefore take us backwards, rather than forwards, as we hope to move. In addition, polecats are one of Scotland’s rarest mammals—they are protected under the Wildlife and Countryside Act 1981 and can be controlled only under licence from NatureScot. I cannot see a rationale for excluding them from the bill, and I think that it would have negative welfare implications if we were to do so.

Amendment 110, in the name of Colin Smyth, seeks to require “evidence that supports” the position in a defence. That is opposed to the bill as currently drafted, which requires a person “to show” that they

“reasonably believed that any of the exceptions ... applied.”

I listened carefully to Colin Smyth’s view, and I do not disagree with him. However, in my view and that of the Government, the amendment is not necessary. In the context of a defence, the current requirement “to show” something would always require presenting some kind of evidence, which would be determined as part of the legal proceedings. The formulation of the statutory defence in the bill is consistent with the approach that is taken to statutory defences in other pieces of legislation, including the Fireworks and Pyrotechnic Articles (Scotland) Act 2022 and the Hate Crime and Public Order (Scotland) Act 2021.

I understand Colin Smyth’s position, and I reassure him that what is in the text of the bill will already require that evidence be shown. I therefore ask him not to move amendment 110.

Thank you, and good morning.

I will begin with comments regarding amendment 131, in the name of Liam Kerr. I reassure Mr Kerr that a key concept of the bill is that hunting is an intentional act. A person cannot accidentally or unintentionally hunt, just as a person cannot accidentally or unintentionally run. That is important. Lord Bonomy described at length the complications that arose from the mental state provisions in the 2002 act, which Liam Kerr referred to, and the particular difficulty that arose from trying to prove a person’s intent when enforcing legislation.

With that in mind, I cannot support amendment 131 for two reasons. First, it is unnecessary because intention is implied in the act of hunting. Secondly, the amendment would create uncertainty as to when intent would be assessed. For example, if a person allowed their dog to chase a wild mammal and, instead of recalling the dog, encouraged it to pursue and kill the mammal, that person could argue that they did not know that that was their intended use of the dog when they set off but that that had changed at some point. There is dubiety that could lead to the enforcement problems that Lord Bonomy talked about.

Ultimately, amendment 131 would weaken the principal offence and could take us back to the enforcement problems that are associated with the 2002 act. For those reasons, I ask Liam Kerr not to press amendment 131.

I will move on to amendments 58 to 62, which are in the name of Edward Mountain. As has been said, the amendments would insert a new exception that could allow the use of a pack of dogs to chase and kill rabbits if a person had permission from the landowner. Amendments 58 to 62 would do that by creating a new exception which, in effect, would remove rabbits from the scope of the bill. The proposed new exception is not subject to the same conditions that are found in the other exceptions, including the important two-dog limit. The only requirement would be that of obtaining landowner permission. It would then not be an offence to hunt rabbits, which would include chasing and killing rabbits with a pack of dogs.

I have spoken at length about why rabbits were purposely added to the definition of “wild mammal” in the bill for reasons of animal welfare. Edward Mountain said that rabbits do not suffer more than other animals. That is slightly beside the point—which is that they suffer in the same way as other animals and ought to have parity with other animals, such as hares. We also chose to include rabbits in the bill to close the loophole whereby persons engaging in hare coursing were claiming that they were hunting rabbits.

I will just finish my point. The term “sport” distinguishes between the recreational nature of these pursuits and wildlife management for economic or environmental reasons.

I was just concluding, but I am happy to take any comments from Edward Mountain.

That will be in the eye of the beholder.

Amendments 156 and 159 from my colleague Christine Grahame seek to remove the ability of NatureScot to license “a category of persons”. I very much understand the intention to tighten up how licences can be granted. However—we have discussed this a lot this morning—I do not want to create inconsistencies with the wording of the bill, which the two amendments could do, as the approach that we have set out is as set out in the Wildlife and Countryside Act 1981.

I will try to cover each of the points that have been made in turn. On the point about “person” and what that can be taken to mean, the law already states that the word “person” would include bodies such as a company or club, so those types of bodies could be granted a licence even if the bill were amended to only include “person”.

Yes. I was just going to come on to the point about categories. The other reason why that is important is that excluding a category would prevent a situation in which a set of neighbouring farmers, perhaps with hill ground stretching between them—exactly the terrain where Lord Bonomy said the provisions would be required—would be able to do what we have discussed with them: apply for a licence that runs with the terrain, not the individual, over that area of land.