Chamber and committees

I think that I have made it clear that I am sympathetic to the argument that there might be some settings where we cannot have an infestation and where pest controllers might have to use these traps as a last resort. At the moment, though, I find it difficult to see how that would work in practice, given everything that I have said about pest controllers not being an accredited title for which you need a qualification.

All I can say to Mr Mountain, then, is that I need to give this an awful lot more thought with my officials and see what levers are available to us. I am still not wholly convinced that an outright ban is not the way to go.

There are a couple of moving parts here, too. I have still not had any agreement from the United Kingdom Government on the exemption under the United Kingdom Internal Market Act 2020. Several letters have gone back and forth, and a meeting to discuss the matter with UK Government ministers was cancelled at the very last minute, so I have not had satisfaction there. There are a lot of balls up in the air in relation to this matter, which is why I have not lodged my proposed amendments here. If I had been able to lodge them, I could have spoken to them. That is all that I can really say on the matter.

I understand why Edward Mountain has lodged his amendments, but I do not think that his proposals are workable in practice, given the licensing scheme that he outlines. His proposals are not doable, given how the amendments are written.

You never know; perhaps I will cover what it is you want to raise, so let me get to the end of my rationale for this.

Ms Hamilton mentioned a challenge, but there is always the risk of a challenge to any legislation that goes through a Parliament. People are free to challenge any aspect of legislation. I will not comment on the situation in Wales, as it is for the Welsh Government to answer questions on the rationale for its own decisions.

We have done a great deal of work on the matter. Indeed, a great deal of work has been done not just in this parliamentary session but over the past decade. The weight of evidence of the impact that snares are having on the welfare of wild animals has become something that we cannot ignore, which is why I have decided to take forward a full ban on snares. I point to evidence from the work that we have done not just on the bill but throughout the year. Indeed, we set up the Scottish Animal Welfare Commission to do that type of work on behalf of the Scottish public, and it has made a very strong recommendation on this matter. That recommendation comes from animal welfare experts across Scotland who are at the top of their profession, and I personally cannot ignore it.

I will say a few words about humane cable restraints. I looked at those carefully, and I met people who were proponents of their use. However, I was not convinced that they were markedly different from traditional snares, for the following reason. The time for which an animal is left captured and restrained is traumatic for them mentally and it exhausts them physically. They do not have any shelter and could be left for quite a number of hours until the restraint is checked. They cannot drink or eat. If they have young, they will not be able to attend to them, because they are trapped. Up to 70 per cent of animals that are trapped in such restraints are non-target species. As Mr Mountain said, the dispatch might be done quickly, but the lead-up to it might be many hours long. That is my main issue with cable restraints. A so-called humane restraint might not cause physical damage to an animal’s neck in the way that a traditional snare does, but a great deal of animal welfare concerns are most certainly associated with them.

I have listened carefully to the debate, and in particular to Colin Smyth setting out his reasoning. I assure the committee that I have paid close attention to the evidence, to what the consultations have told us, to the experiences and views that stakeholders have shared with us, and to what the Welsh Parliament did, as well as to international experience. It has been a long time coming, but I believe that the great weight of evidence shows that snaring must be banned.

I will speak first to my amendment 55. The issue of trap tampering was discussed at length during the committee’s stage 1 evidence sessions. I listened to the evidence, particularly from the Scottish Gamekeepers Association. Indeed, I met representatives of the SGA and had a constructive conversation with them. I listened to other stakeholders involved in land management, too.

I note the extent to which trap tampering happens and the impact that it has on land managers’ ability to do their job—to carry out their lawful activities. There might also be consequences for animal safety and welfare if a trap is tampered with. I understand the concerns of land managers about vexatious complaints and the fear of losing their licence or being prosecuted, but that is not what the trap licence seeks to do. I do not want responsible users to lose their licence unfairly or due to the unwarranted or irresponsible interference of others.

During the evidence sessions, Mike Flynn of the Scottish SPCA agreed that there should be a specific offence of interfering with a lawfully set trap. He stated:

“If it is lawfully set, any suffering should be minimised, but that is outwith the setter’s control if the trap is tampered with.”—[Official Report, Rural Affairs and Islands Committee, 14 June 2023; c 46.]

My amendment 55 would make it an offence to tamper with a trap to which the wildlife trap licence scheme applies so that it no longer complies with the licence requirements, or to disarm or destroy such a trap unless the person has a reasonable excuse for doing so. It also adds the offence of knowingly causing or permitting another person to tamper with, disarm or destroy such a trap. I encourage all members to vote for amendment 55.

It is fair to say that amendments 57 and 58 aim to achieve the same purpose as the offence provided for in amendment 55. Therefore, I ask Ms Hamilton not to move her amendments. If she does move them, I encourage committee members to vote against them, as amendment 55 does exactly the same thing.

Amendments 177 and 178 seek to change the wildlife trap licence scheme to apply to traps that are used for the purpose of taking a wild bird or killing or taking a wild animal. I appreciate that Edward Mountain has lodged those amendments to reflect the fact that, currently, no traps can be legally used to kill wild birds. Leaving proposed new section 12A(1) of the 1981 act as it is would have no immediate effect, as there are no traps that can be used for the purpose of killing wild birds.

The Werritty review recommended that traps that are used to take wild birds be subject to greater regulation due to the strong links between the misuse of that activity and raptor persecution. I have also made it clear that the bill should be future proofed so that we have enabling powers to amend the types of traps to which the licence applies by secondary legislation. It would stand to reason that, if any traps were ever allowed to be used to kill wild birds, they, too, should be subject to the licence scheme. Again, it is future proofing.

Edward Mountain’s amendments would mean that if, in future, a trap should be devised that could legally be used to kill wild birds, a licence would not be required to kill them, only to take them. That would have the result that there would be a higher level of oversight for using traps to take wild birds than for using traps to kill them, which would be problematic. For those reasons, I cannot support amendments 177 and 178 and I encourage committee members to vote against them.

Colin Smyth’s amendment 109 would add traps that are used for the live capture of wild animals to the trap licence scheme if the animals are trapped with the intention of their later being killed. I understand why Colin Smyth has lodged the amendment, and it seems reasonable to include in the bill. As is set out in the policy memorandum, the measure was considered when the bill was developed and drafted. However, I came to the conclusion that there was not enough evidence to justify adding such traps to the licensing scheme at this time, and the Werritty review did not recommend their licensing.

The intention of a wildlife trap licence scheme is to reduce the use of traps that illegally capture raptors. There is no evidence that people using traps for the capture of live animals have used them with that intent, nor do I think that such traps would be capable of capturing a raptor. I have had discussions with NatureScot and stakeholders who are involved in wildlife management, and it has become clear to me that those traps are used by a number of different groups for a wide range of purposes that are often unconnected with grouse moor management, including conservation and research purposes.

Therefore, I am concerned that adding such traps to the licensing scheme at this stage could give rise to unintended consequences. However, I appreciate that circumstances can change and that new evidence can come to light. I assure Colin Smyth that that is why the bill contains powers to allow other types of traps, such as the ones used for the capture of live animals, to be added to the licensing scheme through regulations following consultation. It is also worth noting that the bill does not change the fact that anyone using such a trap to take a protected animal will still require a species licence from NatureScot and would have to comply with the Animal Health and Welfare (Scotland) Act 2006.

I hope that what I have said satisfies Colin Smyth that sufficient safeguards exist currently. We have powers in the bill to address any issue in the future. Therefore, his amendment 109 is unnecessary and could, in fact, have unintended consequences. I ask him not to move it. However, if he does move it, I encourage committee members to vote against it.

I turn to amendment 110. The bill offers the safeguard of a defence to the offence of catching an unintended animal if the trap user has taken “all reasonable steps” to prevent the catching of any unintended animals. Amendment 110 would change the wording in that defence from “all reasonable steps” to “all practicable steps”.

The defence was included to account for a situation in which a person has complied with the requirements of the trap licence but catches an animal unintentionally, when doing so could not have been foreseen—for example, if they had lawfully set a trap to catch a weasel but unintentionally caught a badger.

In the majority of cases, what is reasonable will also be what is practicable. It would not be reasonable to ask someone to do something impracticable. I appreciate that that sounds a little convoluted, but there is a substantive amount of case law on the reasonableness test. That is why I have used the wording that I have used.

Further, the word “reasonable” was used in the bill to maintain consistency with provisions in the Wildlife and Countryside Act 1981. It is important to do what we can to avoid unnecessary confusion. For that reason, I ask Colin Smyth not to move amendment 110. If he does so, I encourage committee members to vote against it.

I confirm that including traps for birds is not my intention. It is about future proofing the bill should any modifications come about for future traps that might exist. I noticed that Edward Mountain had a little bit of a smile on his face when he suggested that. That is not my intention at all.

Before I speak to your amendments, convener, I clarify that “Scottish Natural Heritage” is the term that is used in legislation, whereas “NatureScot” is the organisation’s public-facing brand name. They are names for the same organisation. I understand that that can become a little confusing, but I consistently refer to it as NatureScot.

With the greatest respect, I believe that Finlay Carson’s amendments 78, 80, 19, 93, 41, 103 and 105 are unnecessary. The bill contains a set of enabling powers to allow Scottish ministers to modify, by Scottish statutory instrument, provisions relating to wildlife traps, section 16AA licences and muirburn. Such modifications are subject to the conditions that are set out in the bill, including the requirement to consult. Any changes that are made under those provisions are already subject to the affirmative procedure.

The policy note for SSIs that are laid in the Scottish Parliament contains a consultation section that outlines the form of consultation that has been conducted. The policy note also contains the reasons for introducing the SSI, which will normally include the views of stakeholders. I therefore do not see any need to set out in the bill a requirement to publish consultations that are undertaken in relation to use of the enabling powers. I encourage members to vote against the amendments.

Likewise, I will not support amendments 84 and 100. They would add the requirement to publish the results of consultation undertaken while preparing, reviewing or revising the muirburn code, or the code for section 16AA licences, and to give reasons for the decisions that had been taken.

It is standard practice for Scottish ministers to consult interested parties on such matters, and we regularly share and publish consultation responses. As I set out in my letter to the committee last week, when I provided an update on the development of muirburn and grouse moor management codes, interested parties have been consulted continually and have been included in the process of developing the codes. I therefore see no reason to set such matters out in primary legislation. I encourage members to vote against the amendments.

I turn to Edward Mountain’s amendments 19 and 41. On amendment 19, the provisions in the bill set out that when preparing, reviewing or revising the code of practice for grouse licences, Scottish ministers must consult

“any other person they consider appropriate”.

It is fair to say that land managers would fall into that category, so, in my view, we do not need to provide for that specifically in the bill.

Similarly, on amendment 41, it is clear to me that land managers are likely to be interested in or affected by muirburn, so Scottish ministers would already be required to consult them when considering amending the dates for the muirburn season. However, I have listened to what Mr Mountain has said—

I might be about to give you some comfort in my next paragraph. Perhaps I could get to the end of that, and then I will—

I genuinely cannot think of any consultation that I have been involved in, in the time since I have been a minister, whose results have not been published. Such publication is standard practice in the Scottish Government.

A financial memorandum is essential for any bill that has been introduced. The estimates were based on the stage that we were at. However, we need to allow the wider review to conclude.

On the questions about the cost of a particular licence, I have just said that all the licensing fees, the cost recovery and how the licences work will be reviewed by NatureScot. If I were to say anything about a particular licence today, that would pre-empt the analysis that NatureScot will do. We have to allow it to get on with that work, as instructed by the minister responsible.