Seòmar agus comataidhean

If you repeat questions, I will repeat points.

I understand that it will be a new challenge for falconers—

If you do not mind, convener, I will move on to amendments 40 to 56, in the name of Rachael Hamilton, which would remove the ability of the court to make a deprivation order in relation to any horse used in, or present at, the commission of an offence.

Deprivation and disqualification orders can be granted only when a person is convicted of the offence in relation to hunting with dogs or trail hunting. Therefore, they apply to a dog or a horse that is used in, or present at, the commission of the offence. In that regard, the bill makes provision that is similar to the existing disqualification orders in section 9 of the Protection of Wild Mammals (Scotland) Act 2002.

The rationale for including horses within the scope of deprivation orders is to ensure that anyone who is convicted of a relevant offence is deprived of the tools that were used in the commission of that offence. The intention is to limit the ability to reoffend and to act as a deterrent to unlawful activities under the bill.

I should make it clear that we have not singled out the use of horses. The schedule on enforcement powers in the bill allows for the seizure of vehicles to provide evidence of the commission of an offence, and such a vehicle may be forfeited in accordance with part 2 of the Proceeds of Crime (Scotland) Act 1995. Therefore, if a person uses a quad bike or a similar vehicle, there is also a route for that to be forfeited. Horses and dogs are mentioned explicitly in the bill because they are sentient beings and we believe that additional safeguards are required when making orders to remove them.

On amendments 192 and 193, in the name of Ariane Burgess, I agree with her that the welfare of a horse or a dog should clearly be an important factor when a court is considering the imposition of a deprivation order, so I very much support the principle of the amendments. However, I would like to take the opportunity to ensure that they work alongside other, more general provisions for the operation of deprivation orders. Therefore, I ask Ariane Burgess not to press her amendments today. I would then work with her on an amendment ahead of stage 3.

Amendment 108, in the name of Edward Mountain, would restrict the use of deprivation orders so that they could be applied only when the court is satisfied that they are

“necessary in order to prevent the future use of the dog or horse in the commission of a relevant offence.”

I think that that sets an unworkably high bar for the courts. We must all ask ourselves how the court would know whether the dog or the horse would be used in a future offence.

In addition, the amendment would restrict the court’s discretion in respect of the circumstances in which a deprivation order could be made. As an aside, it would also create an inconsistency, given that the requirement would not apply to other uses of a deprivation order—for example, when dogs are seized in badger baiting. For that reason, I will not support the amendment.

Amendment 109, in the name of Edward Mountain, seeks to amend section 17 of the bill to limit the period for which a disqualification order may be granted to 18 months for a first conviction, three years for a second conviction and, for a third conviction,

“such period as the court may determine”.

Again, we are getting into the territory of unnecessarily and unjustifiably fettering the court’s discretion in considering the appropriate period of time for which a disqualification order should take effect. There may be circumstances in which the court should be able to make an order for a long period of time. I would not want to impinge on that, so I cannot support amendment 109.

I move amendment 175.

I thank Rachael Hamilton for explaining her amendments, which ultimately would amend the bill so that regulations could not modify any enactment, including the bill itself once passed.

As with any body of law, the bill might give rise to the need for a range of ancillary provisions. The power in the bill is a standard provision that is contained in many acts of the Scottish Parliament. It is not, as has been suggested, wide. In fact, the power itself has been limited in the bill, because ministers will be able to exercise it only as

“they consider appropriate for the purposes of, in connection with or for giving full effect to”

any of the bill’s provisions. It goes no wider than that.

That said, the power is necessary, for example, to ensure a smooth transition from the 2002 act to the new provisions in the bill, including the removal of references to the 2002 act. After 20 years, such references are, as you will imagine, numerous. The power will also allow Scottish ministers to make further changes, should there be any unforeseen issues with the operation of the new legislation.

On a practical level, without this power, it would be necessary to bring forward primary legislation every time that we needed to deal with technical, operational or implementation matters. Albeit that it is not a decision for me, I do not think that that would be an effective use of the Parliament’s resources. Moreover, having to wait for primary legislation to become available in order to make amendments could result in the statute book being out of date.

Finally, I would also highlight that section 21 requires regulations that

“add to, replace or omit any part”

of an act to be subject, as Rachael Hamilton has said, to the affirmative procedure. I think that that provides an appropriate level of parliamentary scrutiny, and it is, of course, typical of ancillary powers provisions. Moreover, I point out for the record that the Delegated Powers and Law Reform Committee made no comments on the inclusion of this particular power in the bill. I think that section 21 is important and I therefore cannot support the amendments.

The amendments in my name are technical in nature and essentially reproduce the police powers of enforcement under the 2002 act. On the basis of Police Scotland’s evidence to the committee, which I was able to narrate earlier, I support in principle Ariane Burgess in seeking to bolster animal welfare during the forfeiture of horses and dogs, and I look forward to working with her on that. However, I do not support any amendments that would fetter the court’s discretion in imposing deprivation orders. I absolutely take on board Edward Mountain’s comments on rehabilitation, but such issues have to be taken into account by the court, which will be best placed to decide on all of that in light of the circumstances of the case.

Convener, I have read out what the detective said.

The amendments in this group are technical. Amendment 180 refers to section 23 of the bill, which, as drafted, deals with the repeal of the 2002 act. Amendment 180 would remove sections 23(2) and 23(3) of the bill, which amend the statutory list of offences that are subject to disclosure, by replacing references to the Protection of Wild Mammals (Scotland) Act 2002 with references to offences under this bill.

However, since the introduction of the bill, there have been developments in relation to bringing forward the changes made by the Disclosure (Scotland) Act 2020 to that list of offences. Regulations have been laid before Parliament and are due to come into force on 19 December that will repeal and replace the provisions referred to in the bill, in line with the changes that will be made by the Disclosure (Scotland) Act 2020. Therefore, the provisions that were previously in sections 23(2) and 23(3) of the bill are no longer required, owing to that separate legislative change.

Amendments 182 to 190 are equally technical. They simply change nine references to “Her Majesty” in the bill to “His Majesty”. They do not change the effect or meaning of any of the provisions in the bill.

I move amendment 180.

Amendment 180 agreed to.

I wish Christine Grahame well and will speak to the substance of her amendment, because I know that she will want to catch up with what is being discussed at the meeting.

Although I support the principle behind amendment 174 and understand Christine Grahame’s desire to be vigilant in avoiding a loophole whereby people who wish to continue illegal hunting will use drag hunting as a cover, I have some reservations about the amendment.

First, the wording that relates to reckless conduct, to which Rachael Hamilton spoke as well, is misaligned with the rest of the bill. That goes to the heart of what we seek to avoid. Moreover, regulating the use of dogs to find and follow a non-animal-based scent, including human scents, was not included in the bill, as it does not directly—or, indeed, indirectly—involve the use of dogs to hunt a wild mammal, which is what the core purpose of the bill relates to.

Unlike with trail hunting, we do not have evidence to suggest that drag hunting is being used as a cover for illegal hunting. Neither do we have evidence that wild mammals are accidentally being chased or killed during the course of drag hunting. However, members might say “yet”. That speaks to some of the other members’ contributions.

I understand the concerns that, if the bill is passed as introduced, people who are intent on illegal hunting might try to use drag hunting as a cover. I agree that we cannot rule that out entirely, although we hope that it will not be the case. However, as the bill is drafted, if a person is undertaking drag hunting—or clean-boot hunting, as it is sometimes called—and allows their dog to chase or kill a wild mammal without taking reasonable steps to prevent that from happening, they will commit an offence under section 1 of the bill.

Weighing all of that up, although I cannot support Christine Grahame’s amendment 174, I will continue to keep the subject—the potential risks and possible solutions—under review as we move towards stage 3. Ms Grahame and I discussed last week that we would meet before stage 3 to discuss her other amendments, and I propose to discuss this matter with her then.

On amendments 237 and 238, in the name of Rachael Hamilton, section 11 creates a new offence in relation to trail hunting, while section 12 provides an exception to that. Amendment 237 seeks to remove section 11, with the effect that trail hunting would not be prohibited. As I have set out at various points during the scrutiny of the bill, trail hunting poses a significant risk to wild mammals, and I note that 70 per cent of respondents to our consultation supported a ban on it.

We know that trail hunting can have significant risks for animal welfare. Dogs that have been trained to follow an animal-based scent can be diverted from a laid trail on or near to a natural trail and start chasing and killing wild mammals. That is exactly what we want to stop. A ban on trail hunting is supported by animal welfare groups including the Scottish Animal Welfare Commission and the Scottish SPCA.

Our other reason for pursuing a ban is that trail hunting has emerged as a cover for illegal hunting in other countries. In that regard, I point to Lord Bonomy’s report, which says:

“it is worthy of note that the way in which some mounted hunts now operate in Scotland and the practice by mounted hunts of trail hunting in England and Wales have both given rise to suspicion that organised mounted hunts have continued to hunt foxes with a pack of hounds in contravention of the legislation.”

Finally, on the points that have been made about laying an animal-based scent for dogs to follow and about training, I recognise that some people might have legitimate reasons for laying such a scent—for example, to train police dogs or dogs that are used to manage deer or search for invasive species. That is why the bill includes provisions to allow those activities to continue, subject, of course, to the two-dog limit and other conditions.

For all the reasons that have been stated, I cannot support the amendments.

I, too, thank Beatrice Wishart for her explanation of her amendments. I understand why she has lodged them and I support the intention behind them, but my view is that they are unnecessary and they should not be supported in order to avoid any inconsistencies.

I will explain why I do not support the amendments. Section 22 of the Interpretation and Legislative Reform (Scotland) Act 2010, which applies to the bill, sets out that, when interpreting legislation, we should take it that use of the singular includes the plural, and vice versa. That means that, in relation to the bill and Beatrice Wishart’s point, reference to the “owner” in each of the exceptions can be read as “owner or owners”, depending on the circumstances. There is no need to restate that, and doing so could cast doubt on other uses of the singular throughout the bill, such as references to “wild mammal”, for example. We want consistency in any singular including the plural, and vice versa.

I hope that that reassures Beatrice Wishart and Mercedes Villalba. The effects of the amendments are already built in, and any exception that was made in these circumstances could cast doubt on other references throughout the bill.

I apologise. I did not refer to that specifically because my point is that, given that the singular includes the plural, we do not need the “avoidance of doubt” clauses.