Chamber and committees

That is exactly my point.

I have listened to what Mr Mountain has said. I understand why he lodged the amendments and why he thinks that it would be helpful to have a requirement to consult land managers set out more explicitly in the bill. I am therefore happy to support his amendments in principle. However, I would like to ensure that both are framed in a way that is consistent with the existing language in the bill. I therefore request that Mr Mountain not press amendments 19 and 41 but allow us to work together on redrafted versions to be brought back at stage 3.

The review might supersede that. We have to allow NatureScot to undertake a full analysis of the cost recovery associated with all licences and see where that lands. Obviously, it has sight of what we proposed in the financial memorandum, which it will take into account. Ms Slater is leading on that. However, I think that we all agree that the licences should be proportionate and should depend on the people who are applying for them. All of that will be taken into account. The committee will, of course, be able to see the results of the review within about six months.

Rachael Hamilton’s amendments 111, 112, 126, 127, 147 and 148 would remove the relevant authority’s ability to charge reasonable licence fees for any of the licences in the bill. As a couple of members—particularly Ariane Burgess—have said, we have a Bute house agreement commitment to review species licensing throughout wildlife licensing. That will include assessing the potential for cost recovery. Rachael Hamilton’s amendments prohibit that, so I cannot support them and I encourage the committee not to support them.

With regard to the financial memorandum, those were the initial estimates from NatureScot. They will be refined as the licensing is developed in the online system, and they will also be taken into account as part of the review. I understand and appreciate the intent behind John Mason’s amendments 1, 2 and 3. As I have said, we have committed to considering cost recovery as part of the review, and we are actively—

I was just about to refer the committee to Ms Slater’s letter to NatureScot in which she asked it to take forward the commitment to do the species licensing review. I am sure that the committee has a copy of that letter—if not, we can make sure that it does. At the end of her letter, which was sent in January, she said that she would like the report to be completed and ready for external review within six months. It is going to be done at speed. I imagine that that will be by June this year, for external review, and that the committee will take an interest in that.

We want to consider cost recovery across the whole range of species licensing. It is important that Ms Slater’s letter also says that it is about review of the wider species licensing system with a view to ensuring that the law is being applied correctly. Therefore, it is not just about cost recovery; it is also about how the licence system is working more generally.

I will be happy to give way when I finish my points.

We have taken the approach of including provisions in the bill to allow the relevant authority to charge a reasonable fee in the future following the outcome of the review. That approach would allow for a holistic and coherent introduction of fees and charges across all relevant bill activities and, indeed, the wider relevant licensing activities undertaken by NatureScot.

Amendments 1, 2, and 3 could pre-empt and undermine the outcome of the review, so I ask Mr Mason not to move them. I am sure that the minister who commissioned the NatureScot review will be content to keep Mr Mason and other members of the committee updated on its progress.

I am happy to try to answer Ms Hamilton’s question.

Exactly. As I said, the financial memorandum is an essential part of any bill and it is always an estimate. I hope that the fact that we have provided those estimates in the financial memorandum will give NatureScot the ability to interrogate what we have proposed in the bill as part of its wider review of all the licences that it issues.

Mr Kerr might not think that it is appropriate. We have arrived at an estimate of the costs associated with the licences but, as I have said a few times now, we have to allow NatureScot to undertake the work that Ms Slater has asked it to do, which is a review of the licences. I hope that the estimates that we have provided in our financial memorandum will be helpful in that respect.

I will speak to amendments 48 to 52 before turning to the others in group 8. Amendments 48, 49 and 51 remove the provisions for the licensing authorities to suspend wildlife trap, grouse and muirburn licences despite not being satisfied that a relevant offence has taken place. Amendments 50 and 52 remove the definition of an official investigation, because that is not needed any more.

I lodged those amendments because I had listened very carefully to the arguments that were made by those who expressed—in particular, at stage 1—very strongly held concerns about the potential misuse of those provisions. I was never in any doubt that the licensing authority, most likely NatureScot, would have operated those provisions carefully and responsibly in the circumstances that I previously described—namely, when there had been an incident of such a heinous nature that it would be inconceivable to allow business as usual while a police investigation ran its course. However, I am now happy to provide comfort to those who were worried about how the provisions might be applied, by removing them completely from the bill.

I have been reassured that, in many cases, the police would be able to provide sufficient evidence at an early stage of the investigation in serious cases—for example, in relation to a licence under the proposed new section 16AA of the Wildlife and Countryside Act 1981—on whether the act in question was criminal in nature and whether it had occurred at a location that connected it to the management of the grouse moor in question. That would allow NatureScot to satisfy itself that a relevant offence had been committed.

I hope that the committee will support my amendments, not least because, in its stage 1 report, it called for the changes proposed in amendments 48 to 52.

Section 4 of the bill provides that the licensing authority can suspend or revoke a wildlife trap licence if it is satisfied to the civil burden of proof—the balance of probabilities—that a relevant offence has been committed. Edward Mountain’s amendment 179 would raise the test that was applied by the licensing authority to “beyond reasonable doubt”, which is the criminal burden of proof. Historically, it has been very hard to demonstrate to the criminal burden of proof that a wildlife crime has taken place, and the number of successful prosecutions remains low.

The purpose of the licensing scheme is to ensure that wildlife trapping is undertaken in accordance with the law and best practice, and with due consideration of all the possible consequences. If passed, Edward Mountain’s amendment 179 would weaken the licensing scheme and reduce the ability of the licensing authority to take the necessary and appropriate action in cases in which there was strong evidence to suggest that the person operating under the trap licence had committed an offence. For those reasons, I cannot support amendment 179, and I encourage committee members to vote against it.

Amendments 119, 119A, 135, 135A, 156, 157 and 157A seek to require the licensing authority to set an estimated time period for any suspension of licences for wildlife traps, the taking of grouse, or muirburn. They also stipulate that any suspension period must be “reasonable”. I understand the motivation behind the amendments, and I am sure that, in practice, NatureScot, as the licensing authority, would set a time period for suspension in most cases. However, that may not be possible if the restoration of a suspended licence depends on some action by the licence holder. For example, if a person is asked to do something to comply with a licensing requirement, the code of practice states that the licence can be reinstated only after the licence holder has complied with that requirement. A time limit is not at all workable in such circumstances.

It is also conceivable that NatureScot may wish to suspend a licence pending further information from the police. Such further information could be germane to the length of the suspension period or to the decision whether to revoke a licence rather than suspend it.

In all those cases, it is incumbent on NatureScot to act reasonably, and it is not necessary to require that in statute. For those reasons, I do not support Rachael Hamilton’s amendments 119A, 135A and 157A, which would have the effect that the licensing authority must give notice of the exact duration of the suspension of a licence. I do not think that that is possible.

I ask Beatrice Wishart not to move amendments 119, 135, 156 and 157. If she does so, I encourage members to vote against them, as well as against Rachael Hamilton’s amendments 119A, 135A and 157A.

Amendments 79 and 82 would cause offences under section 19 of the Animal Health and Welfare Act 2006 to be included as relevant to the consideration of the suspension or revocation of licences for wildlife trapping or the taking of grouse. The committee’s stage 1 report recommended that we give consideration to the inclusion of those offences as relevant offences. The offences in section 19 of the 2006 act concern the causing of unnecessary suffering to an animal. They could apply to the mistreatment of a trapped animal, for example, or the treatment of a call bird used in a crow cage or Larsen trap. I therefore agree with Karen Adam that those should be relevant offences, and I am happy to support her amendments 79 and 82.

Amendments 64 and 74, in the name of Rachael Hamilton, seek to set a time limit of 18 weeks for the suspension of a grouse licence and eight weeks for the suspension of a muirburn licence. I believe that those amendments would set an arbitrary limit on the suspension of licences. As was mentioned earlier, it is conceivable that licences could be suspended pending completion of some action required by the licence holder, such as the fulfilment of a licensing condition or compliance with the code of practice. An arbitrary limit of that sort could result in the licence holder simply waiting out the time rather than complying with the conditions. That would threaten to bring the whole licensing scheme into disrepute. It could also interfere with any police investigation or criminal proceedings, which would be undesirable. I therefore cannot support amendments 64 and 74, and I encourage committee members to vote against them.

Amendments 134 and 155, in the name of Stephen Kerr, would require that, when the licensing authority is considering modifying, suspending or revoking a person’s grouse or muirburn licence, it must give written notice to that person and provide the person a period of 14 days within which they can submit representations regarding the proposed modification, suspension or revocation. That would be in addition to the provision already contained in the bill for the relevant authority to give notice of 14 days or “such other period” as may be specified in the notice before a modification, suspension or revocation of a licence could take effect. Cumulatively, that would mean that there would be a 28-day period between the licensing authority considering a licence suspension or revocation and that action coming into effect. I think that that level of delay is unacceptable and unnecessary, so I do not support amendments 134 and 155, and I encourage committee members to vote against them.

Amendment 65, in the name of Rachael Hamilton, requires the licensing authority, when it has decided to modify, suspend or revoke a person’s grouse licence, to give the reasons for doing so. I think that that is reasonable and sensible, and I am happy to support the principle here, although I would like more time to consider the framing of the provision. I have had conversations with Rachael Hamilton on the matter, and I hope that it is acceptable to her to work with me and not press amendment 65 today, allowing us to come back with an amendment with revised wording at stage 3.

Amendment 66, also in the name of Rachael Hamilton, would replace the 14-day notice period before the modification, suspension or revocation of a section 16AA licence could take effect with the period in which an appeal could be made. The effect of the amendment would be that it would increase the period before a modification, suspension or revocation could take effect from 14 days to 21 days. I do not see any justification for further increasing the period before suspension can take effect. In fact, I think that that would encourage appeals to be lodged even when they had little chance of success, simply to secure a delay in the suspension or revocation. I cannot support that, and I encourage committee members to vote against amendment 66.

Amendment 67, in my name, is a technical amendment. It clarifies that a licence holder whose section 16AA licence is suspended is to be treated as not having a section 16AA licence for the duration of the suspension. The effect of that is to make it clear that, if the licence holder continues to kill or take any type of bird included in part IB of schedule 2 to the 1981 act during the suspension, they will have committed an offence.?I hope that members see the sense in that measure and will support amendment 67.

Amendment 68, in the name of Rachael Hamilton, would remove all of the offences except those under part I of the 1981 act from the list of relevant offences for which a section 16AA grouse licence can be suspended or revoked. I believe that the amendment is based on the mistaken assumption that the bill is solely about preventing raptor persecution on grouse moors. While it is true that preventing and dealing with raptor persecution was the main driver for the Werritty review and, subsequently, the bill, that is not the sole concern. The Werritty review considered a range of issues around grouse moor management, such as trapping and muirburn, and there are provisions on those matters in the bill.

It is also important to ensure that, by dealing with one issue, we do not inadvertently create other issues that are caused by the minority who have no respect for wildlife. The Wildlife Management and Muirburn (Scotland) Bill gives effect, in large part, to the recommendations of the Werritty review, which considered the whole environmental impact of grouse moor management. The bill enables us to protect against unwanted environmental impacts and harm to other birds and animals, in case anyone is tempted to cause such things for any reason or to better enable grouse shooting. It is important that the bill makes it clear that licences can be suspended and revoked for offences relating to other statutory protections for wildlife. Removing such provisions from the bill would send the wrong message, so I cannot support amendment 68 and I encourage members to vote against it.

Amendment 136, in the name of Rachael Hamilton, would insert a condition to provide that, when an appeal is made to the sheriff, the sheriff may, on the application of the appellant and if they are satisfied on the balance of convenience that it is appropriate to do so, recall the decision of the relevant authority pending determination of the appeal. I believe that amendment 136 is unnecessary and would not add anything to what is already in statute. Section 88(1)(a) of the Courts Reform (Scotland) Act 2014 provides that

“A sheriff may, on the application of a party to any civil proceedings”—

which would include a summary application to appeal a decision as regards the licensing of grouse shooting—

“make—

(a) such interim order as the sheriff thinks fit in relation to ... the subject matter of the proceedings”.

That would include recalling the decision of the licensing authority if the sheriff thought that that was appropriate. I think that that is as it should be, given that sheriffs should be able to act with discretion, unfettered by statutory limitations on the use of many powers at their disposal. The sheriff already has the ability to recall a grouse licence decision, so amendment 136 is not required. For that reason, I do not support the amendment and encourage committee members to vote against it.

Amendment 18, in the name of Edward Mountain, provides that, when an appeal of the granting of a licence is made to the sheriff and they subsequently direct it to the licensing authority to grant a licence, the sheriff must make an award of expenses to be paid by the relevant authority to the applicant. The amendment fetters the sheriff’s discretion in that regard and would be inappropriate, especially when courts already have the power to award expenses should they deem that appropriate. However, amendment 18 would require that the courts must award expenses even if they did not deem it to be appropriate in the circumstances—for example, when the appellant, although successful, might have acted in bad faith, such as by delaying proceedings. I do not want to take any powers away from the sheriff in that regard. Those might be rare circumstances, but we all know that legislation has to anticipate even the most rare of circumstances. The normal practice of expenses following success should be the case for those appeals, but I believe that that must remain a matter for the court’s discretion. I do not support amendment 18 and encourage committee members to vote against it.

Rachael Hamilton’s amendments 137, 173, 140 and 162 would require the Scottish ministers to create a scheme whereby compensation would be paid to section 16AA licence holders and muirburn licence holders for any losses or costs arising from suspension of those licences irrespective of the circumstances of the suspension. NatureScot is a public body and must act reasonably. It cannot suspend a licence for spurious reasons. It can suspend a licence only if the licence holder has not complied with the conditions of the licence or if NatureScot is satisfied, on the balance of probabilities, that the person managing the land that has been licensed has committed a relevant offence. I do not consider that it would be appropriate to pay compensation in those circumstances. Ultimately, it is right and proper that, as I have said, the power to determine any award of expenses sits with the courts. For that reason, I cannot support amendments 137, 173, 140 and 162, and I encourage committee members not to support them.

Ms Hamilton’s amendments 72 and 73 would insert a condition into the “suspend despite not being satisfied” provisions in the bill so that NatureScot could not modify, suspend or revoke a muirburn licence in those circumstances if the basis for doing so was an offence that related to whether the land was peatland. As I have indicated, my amendments propose that the “suspend despite not being satisfied” provisions be removed from the bill. If those amendments were agreed to, amendments 72 and 73 would not be relevant. In the event that my amendments were not supported by the committee, I would not support amendments 72 and 73, because they would enable anyone who carried out unlawful muirburn on peatland to claim ignorance of the fact that it was peatland and thus avoid a potential licence suspension. I hope that members agree and that they will vote against amendments 72 and 73.

Amendment 161 provides for a person to appeal to a sheriff against a decision of the licensing authority to refuse to grant a muirburn licence, to attach a condition to such a licence or to modify, suspend or revoke such a licence. It also provides that, when an appeal is made to the sheriff, they may recall the decision of the relevant authority, pending determination of the appeal. As I have noted, we believe that the courts already have such a power.

Amendment 158 would mean that any modification, suspension or revocation of a muirburn licence could not take effect until after the period for which an appeal can be made had elapsed. That would increase the period before a modification, suspension or revocation can take effect from 14 days to 21 days after notification of the modification, suspension or revocation has been given. During that time, the muirburn licence could continue to be used.

It is anticipated that the muirburn licence scheme will be delegated to NatureScot. It is not standard across wildlife licensing to include a provision to appeal to a sheriff against any decisions by NatureScot. NatureScot has an internal appeals process, after which any appeal would be by way of judicial review or an appeal to the Scottish Public Services Ombudsman.

We have included an appeals process involving the sheriff court in relation to grouse licences, as the revocation of a grouse licence may have a wider impact on grouse moor businesses, their employees and the surrounding community. In short, there would be clear economic consequences in such circumstances, which would affect livelihoods, why is why inclusion of a right of appeal to the sheriff court is warranted.

However, muirburn is a very different proposition. First, there are alternative vegetation control measures available. Secondly, NatureScot already operates a licensing regime for muirburn out of season, so an all-year-round licensing system represents an extension of an existing system rather than the creation of an entirely new one.

Under the existing framework, there is no provision for appeal to a sheriff in relation to muirburn licences. If a person wished to dispute a decision, they would do so initially by using NatureScot’s aforementioned internal appeals process to seek a review of the decision. At that point, the issue would, we hope, be resolved to everyone’s satisfaction. However, if the person was still not satisfied with the outcome of that process, they would have the option of seeking a judicial review or making an appeal to the Scottish Public Services Ombudsman.

For those reasons, I do not support amendments 158 and 161 and I encourage committee members to vote against them.

Ms Hamilton’s amendment 159 seeks to increase the notice period that the relevant authority must give for any modification, suspension or revocation of a muirburn licence from 14 days to 21 days. As with amendment 158, I see no justification for increasing the time period before a licence suspension, revocation or modification can come into effect. Therefore, I do not support amendment 159, and I encourage committee members to agree with me and vote against it.

I am fairly certain that I did not say that that is the only route for an appeal. There is an appeals process within NatureScot, but you can also ask the SPSO to investigate what has happened, as you can do for any public body, before you go to judicial review.