Seòmar agus comataidhean

I am saying that I cannot support the amendment as it stands and that, between now and stage 3, I would like to have the opportunity to consider the risk, the extent of any risk and any possible solutions that we can put in place if we establish that there is such a risk. However, I cannot commit to anything further today, because that work still needs to be done.

If Edward Mountain wishes to continue with his explanation of that activity, he should do that.

I will begin with Colin Smyth’s amendments 113 and 124, which were just being discussed. I understand why he has lodged those amendments. However, they are not necessary, and they could present practical problems.

The bill states that, unless a licence has been granted, only two dogs can be used to search for, stalk or flush a wild mammal. It is very clear about that. It also clearly sets out that, when a person uses two dogs for that activity, reasonable steps must be taken to shoot the wild mammal or have it killed by a bird of prey as soon as reasonably possible. That is a watertight set of circumstances.

I do not think that the circumstances that Colin Smyth describes would ever arise. I described circumstances that involved dogs being on a lead, dogs being elsewhere and dogs being held back, which could be used as part of the activity if they were swapped in at a later date. There is no way that that could be done to pursue the same quarry—the same animal. Therefore, flushing could not be prolonged in that way.

As we discussed in the context of rough shooting, a person must only ever control two dogs at one time. There could be two dogs in the back of a Land Rover that could be got for the second half of the day, but it would not be possible for them to be swapped in with such speed that the same quarry could continue to be chased.

For those reasons, I cannot support Colin Smyth’s amendments.

Rachael Hamilton’s amendment 244 seeks to add to the bill a definition of a pack, which it defines as

“a group of two or more dogs trained for hunting, excluding working gun dogs”.

As she said, in previous committee sessions I have sought to make it clear that, for the purposes of the bill, a pack is more than two dogs. That is already explicit in the bill, and I do not think that any further definition is required.

I do not agree that there is a contradiction. The term “pack” means more than two dogs and can apply to any dogs. The issue of consistency of approach throughout the bill is one that we discussed in a lot of detail at the committee’s previous meeting. Therefore, I do not support any attempts to create different rules for different types of dogs. The bill is about regulating the use of all hunting dogs, regardless of the type of hunting that takes place. I have seen no evidence to justify an exception for gun dogs.

I have concerns not only about the substance of amendment 244 but about the way in which it is drafted. I think that Rachael Hamilton probably intended to refer to “more than two dogs” as constituting a pack, but the amendment says “two or more dogs”. In my view, two dogs do not constitute a pack; a pack consists of more than two dogs.

On the exclusion of gun dogs from the definition, it would be very difficult to establish whether a dog was a “working gun dog”. That phrase might be used in ordinary language, but it is not sufficiently clear in legislative terms. The definition risks creating a loophole that would allow people to circumvent the two-dog limit, which is a cornerstone of the bill. For those reasons, I cannot support amendment 244.

Rachael Hamilton’s amendment 242 seeks to amend the definition of “under control” by reinstating wording from the 2002 act, whereby a dog is under control if it

“is carrying out an activity for which it has been trained”.

I think that Rachael Hamilton’s intention is that that would apply to all circumstances in the bill.

One of the key principles in the bill is that, when dogs are used to search for, flush or stalk wild mammals, they must be under control. That is a cornerstone of the bill. The bill sets out that

“a person who is responsible for the dog is able to direct the dog’s activity by physical contact or verbal or audible command”.

At the end of the day, dogs are animals, and even the best-trained dogs will sometimes react in an unexpected way. I do not accept that it is enough to simply rely on a dog to carry out an activity for which it has been trained. That would be the effect of the amendment if it were agreed to. We can imagine that, in extreme circumstances, a dog could be trained for purposes that we would not wish it to carry out. I fear that the amendment would significantly widen the definition of control, which is a key provision of the bill.

I am not sure that “bureaucratic diktat from pen pushers” is a reasonable way to describe the work of NatureScot and others, but I will leave that up to the member. Rachael Hamilton will probably not be surprised by my view on this, given that we debated the amendment that I lodged in the previous session. I said then that I had listened very carefully to the discussions on the licensing period during the committee’s scrutiny.

When I spoke to amendment 158 last week, I said that I had come to the conclusion that allowing some flexibility around the period of time in which the licence’s 14 days may be used was justified. That is why I lodged amendment 158—which, to remind the committee, would see the period of time for which a licence can be granted under section 4 be the original maximum 14 days, but within a period of six consecutive months.

Of course, I have considered Rachael Hamilton’s amendment 243, which would allow the licence to be granted for up to 28 days over six months, but I remain very much of the view that 14 days is the right number for the licence to cover. It allows sufficient flexibility to deal with changes to plans due to bad weather or other unforeseen events while not facilitating any more days of hunting over the period. Having spoken widely with stakeholders, I believe that 14 days is sufficient for the licensed predator control needs of most farms and that 28 days allows too many days of activity under a particular licence, given the very real need to maintain a tight control.

Amendment 170 is a technical amendment. As has just been discussed, the exception under section 7 allows dogs to be used to control wild mammals for purposes that have an environmental benefit.

Section 7(2)(a) as drafted allows a person to use up to two dogs or more than two dogs under licence to search for, stalk, or flush wild mammals for the purpose of

“preserving, protecting or restoring a particular species”.

Amendment 170 inserts the words “for environmental benefit” at the end of that provision. Without the amendment, it would be possible for a person to use two dogs to manage wild mammals for the purposes of protecting a particular species, even if that would not amount to or result in an environmental benefit. The amendment is therefore required in order to make clear that the preservation, protection or restoration of a species must have an environmental benefit attached to it. Again, it is about consistency of expression.

I will not be supporting amendment 229, in the name of Rachael Hamilton. The reason for the inclusion of the word “scheme” in section 7 is that I believe that, where dogs are being used to control wild mammals for environmental benefit, it should be done to meet a specific objective as part of an overall plan, and not ad hoc. That is important not only for the purposes of section 7, but equally because it is linked to the issuing of licences on that basis. We must require a person to have a plan before they allow dogs to control wild mammals.

Likewise, I cannot support amendment 31, in the name of Rachael Hamilton, which is linked to amendment 229 and requires

“a definition of ... a scheme”,

although I note that it does not suggest one. Where a term is not specifically defined in the bill, it will rely on its ordinary meaning. A scheme means a plan, a design or a programme of action. It is not necessary to include a definition in the bill where a word simply takes on its ordinary meaning. The explanatory notes that accompany the bill set out that

“the requirement for a scheme means that the activity has to be planned and designed for one of the subsection (2) purposes.”

That activity could be anything from the larger-scale projects that we discussed last week—involving stoats on Orkney, for example—or an individual gamekeeper planning a deer cull. However, for any stakeholders who would like more clarity, I intend that further information about what constitutes a scheme for the purpose of applying for a licence under the section 7 exception will be set out in the licensing guidance that will be produced should the bill be passed. That information would be read across to the use of the exception without a licence—that is, using up to two dogs.

For those reasons, I ask Rachael Hamilton not to press or move her amendments.

I am happy to, convener.

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—

It is exactly as I said in my previous point: it is to achieve consistency of language with the stop and search powers that we are introducing and so that those powers mirror what is in the 2002 act.