Seòmar agus comataidhean

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.

Like Rachael Hamilton, I ask members to bear with me as I go through the amendments.

I begin with amendments 1, 3, 5, 7 and 13, in the name of Ariane Burgess, which seek to remove section 5 entirely from the bill. In developing the bill, I have sought to balance the highest possible animal welfare considerations against the need for effective wildlife management, as I accept that the latter is necessary in our rural nation. I know, however, that the use of dogs underground is a very polarising issue, and Ariane Burgess spoke clearly to some of the live welfare concerns. I understand why she lodged her amendments, because I, too, have heard the evidence about the use of dogs underground and how that can pose a risk to the welfare of both the wild mammal and the dog.

That is why the bill places a strict limit on the purposes for which dogs can be sent underground and the species of mammals that they can be used to search for and flush. Ultimately, from the work that my officials and colleagues and I have undertaken in developing the bill, it has not been clear that there is a viable alternative when it comes to fox control. No more humane methods have been put to me that would fulfil the same function. In fact, it has been put to me that some less humane methods may be used, including blocking up a den, which would result in starvation. I think that everybody would want to avoid that. After giving the matter a great deal of thought and weighing up all the evidence that has been put before me, I am therefore unfortunately unable to support those amendments.

Amendments 73 to 96, in the name of Edward Mountain, would—as we have discussed—add weasels, stoats, polecats and ferrets to the list of wild mammals that can be searched for or flushed using a dog underground. I have seen no evidence that it is necessary to allow the use of dogs underground to control those mammals. As I rehearsed earlier, the polecat is one of Scotland’s rarest mammals and a priority species under the United Kingdom biodiversity plan.

The welfare concerns that are inherent in the use of dogs below ground mean that we must ensure, as I just said in responding to Ariane Burgess’s amendments, that these provisions are drawn as narrowly as possible. As Jenni Minto described, projects on Orkney and throughout the country have used other effective methods, such as trapping, to ensure that those species can continue to be controlled in the best way possible. I will therefore not be supporting these amendments.

I turn to amendments 162 to 167, in the name of Jenni Minto. I have listened carefully to the arguments that have been put forward and, for all the reasons that Ms Minto outlined, I will support those amendments to section 5. We have seen plenty of evidence that other effective methods of mink control are available, and the provision on mink is in line with my desire to see the provision for dogs underground being drawn as narrowly as possible.

Amendments 212, 214, 216, 221, 222 and 225, in the name of Rachael Hamilton, would allow the use of dogs below ground to search for any species of wild animal by removing the reference to fox and mink in the bill and replacing it with a reference to any animal. As I said in response to Edward Mountain’s amendments, I have not seen any evidence to justify the use of dogs underground to control other species of mammals. In fact, everything that I have heard about the welfare concerns around sending dogs undergrounds leads me to the conclusion that, as I said, we must draw these provisions as narrowly as we can.

Amendments 213 and 215, in the name of Rachael Hamilton, seek to amend the section 5 exception to include

“from an enclosed space within rocks or other secure cover above ground”.

In my view, that would widen the reach of section 5 to include searching for and flushing wild mammals above ground as well as below ground.

Rachael Hamilton alluded to the wording in those amendments being taken from section 2(3) of the 2002 act, and she was right to quote Lord Bonomy’s comments on terriers. However, I ask her to note his comments that

“Consideration should be given to framing section 2(3) more narrowly by removing reference to using a dog under control to flush a fox from an enclosed space within rocks or other secure cover above ground.”

The amendments in Rachael Hamilton’s name could reverse the action that we have taken to implement Lord Bonomy’s recommendations by separating the use of a dog below ground in a different section, which could create an unnecessary and confusing overlap between the exceptions. I therefore cannot support the amendments.

Amendment 117, in the name of Colin Smyth, would require a person using section 5 to intend to kill the wild mammal “immediately by shooting”. Although the amendment may not appear to be problematic, and I have some sympathy with what Colin Smyth is seeking to achieve, it would create two anomalies, which I will share with the committee. The first is that a requirement to shoot “immediately” would be at odds with the consistent use of the wording

“as soon as reasonably possible”

throughout the bill. One of the main themes of Lord Bonomy’s review was the need for consistent language.

The second anomaly is that, in practice, there is always the chance that, when a person is searching for a wild mammal underground, that mammal may not actually emerge. Although the person may have intended to shoot it, therefore, their intention cannot determine what happens in practice, so there could be a difference there. I understand Colin Smyth’s concern, and I reassure him that section 5(3)(d) states that,

“if the fox ... is found or emerges from below ground, it”

must be

“shot dead, or killed by a bird of prey, as soon as reasonably possible”.

I think that that achieves a lot of what his concerns are pointing to. That is before we consider the practical need to ensure that any dogs—or indeed people, as Edward Mountain suggested—are out of the line of fire before “immediately ... shooting”. For those reasons, I cannot support the amendment.

I move swiftly on to amendments 26 and 217, in the name of Rachael Hamilton. As a result of welfare concerns, section 5, which facilitates limited control underground, has deliberately been drawn as narrowly as possible. I have heard evidence that it is sometimes necessary to deploy dogs underground in the course of controlling foxes to protect livestock, but I have heard no evidence whatsoever on allowing the use of dogs underground for environmental benefit. The current legislation does not allow dogs to be used underground, for all the purposes that are set out in section 7, which is on environmental benefit. Those amendments would therefore go further than the law as it stands, and for that reason I cannot support them.

Amendments 218 and 27, in the name of Rachael Hamilton, seek to amend section 5 to allow the use of more than one dog underground. No strong evidence was brought forward at stage 1 to support amending the bill to enable the use of more than one dog underground. Restricting the number of dogs that can be used to one is in line with the recommendation that was made by Lord Bonomy. It also reflects best practice, as set out in the code of practice by the National Working Terrier Federation, which already suggests one dog. Moreover, animal welfare groups have said that, if dogs are to continue to be used underground, a one-dog limit should apply. In addition, I draw the committee’s attention to the fact that the Hunting Act 2004, which governs the use of dogs underground in England and Wales, limits the number of dogs that can be used underground to one, albeit for different purposes. For those reasons, I do not support these amendments.

Amendment 219, also in the name of Rachael Hamilton, seeks to remove the section 5 requirement that a dog that is used underground must be “under control”. Ensuring that dogs that are being used to control wild mammals are kept under control is a key tenet of the bill, and it is embedded in all the exceptions that set out when and how dogs can be used. I can see no justification for waiving that fundamental requirement in respect of dogs that are being used underground. In fact, given everything that we have discussed with regard to welfare considerations, it is vital for both the wild mammal and the dog that the dog can be controlled when it is underground. For those reasons, I cannot support the amendment.

Amendment 28, in the name of Rachael Hamilton, seeks to include the wording

“or dogs as the case may be”

after the word “dog” in section 5(3)(b). I do not support the use of more than one dog underground. However, even if I did, the amendment would still be unnecessary given the application to the bill of section 22(a) of the Interpretation and Legislative Reform (Scotland) Act 2010, which provides that

“words in the singular include the plural”,

unless the context requires otherwise.

Amendment 220, in the name of Rachael Hamilton, seeks to add to section 5 the condition that the

“wild mammal ... being searched for”

must be

“flushed as soon as reasonably possible after it is”

found. I understand that the wording is imported from the 2002 act; I am always cautious about that. In drafting the bill, I intentionally did not include that in the exception because of the unpredictability of knowing what will happen when a dog is used underground, which is inherent in the practice.

During stakeholder engagement, those who work with terriers underground cited examples of where the terrier and fox would stand off, which would result in the fox not being flushed at all and would end up with both animals being dug out. I am sure that this is not what Rachael Hamilton intended, but amendment 220 would make such a situation, which is obviously important for the welfare of the animals, illegal by allowing a fox only to be flushed if it is found, not dug out or left underground without harm. Therefore, I cannot support it.

Amendment 224, also in Rachael Hamilton’s name, amends section 5(3) to add a list of further conditions that must be met when using dogs underground.

The welfare of a dog that is being used underground is clearly important. It is already covered by the Animal Health and Welfare (Scotland) Act 2006, which came into force after the 2002 act, which we are amending. Section 19 of the 2006 act provides that

“A person who is responsible for an animal commits an offence if—

(a) the person causes the animal unnecessary suffering by an act or omission, and

(b) the person knew, or ought reasonably to have known, that the act or omission would have caused the suffering or be likely to do so.”

Despite that, I am open to it perhaps being helpful to clearly set out in the bill the specific conditions that we think should apply in this specialised and difficult area. For that reason, I am happy to accept the principle of amendment 224 but would like to consider the precise wording further and come back, if the member agrees, with an amendment that achieves a similar effect at stage 3.

Yes—that is similar to the use of dogs in the course of hunting throughout the countryside. Again, there is a point about consistency.

For the reasons that I have set out, I do not support amendments 133, 135, 137, 139 and 143.

I turn to Colin Smyth’s amendments 123 and 146, which would remove the ability of a person to use dogs to search for or flush wild mammals for falconry. As I set out in speaking to amendments in the name of Ariane Burgess, the bill is about regulating the use of dogs when they are used in the course of hunting wild mammals. Falconry is a lawful form of hunting and, as long as dogs are used in accordance with the requirements of the bill, it is not justifiable to single it out and apply additional restrictions, just as it is not appropriate to single out rough shooting and apply lesser restrictions.

We must guard against anything that would ban an otherwise lawful activity by the back door, not least because there has been no consultation on any proposal to effectively ban falconers from hunting, and that does not fall within what is intended by the bill.

I move to amendment 227, in the name of Rachael Hamilton. I do not support this amendment, because it is not necessary and because it risks creating uncertainty and inconsistencies throughout the bill. We have worked very hard to avoid that, and we have been praised by Lord Bonomy for so doing. However, I seek to reassure Rachael Hamilton that what she is attempting to achieve is already provided for by the bill. In my view, therefore, the amendment is not necessary and would create inconsistencies in expression.

In addition, as I mentioned previously, creating special arrangements for a single recreational pursuit would open up the bill to abuse by those who are looking for loopholes to get around the law—

To pick up on the last point, I think that we discussed last week that, for the purposes of the bill, a pack is defined: it is more than two dogs. As I was happy to put on the record last week, I understand that dogs that are generally used in rough shooting, such as gun dogs, are well trained and do not chase or form packs.

However, as I said last week, that gives me confidence that rough shoots will be able to comply with what is a minor adjustment under the bill in order to provide consistency of application to all uses of dogs in the countryside in the course of hunting in Scotland. I hope that that clarifies the member’s point and puts on the record what she was hoping to draw out.

Amendments 100 to 102, in the name of Edward Mountain, seek to amend the section 6 definitions of deer stalking and remove the word “sport”, for the reasons that have been explained.

Edward Mountain mentioned the different purposes of deer stalking, but I reassure him that, although section 6 covers recreational pursuits, we absolutely acknowledge that there are other reasons for pursuing deer stalking. For example, deer stalking for tree protection or other environmental reasons would be covered under section 3 or section 7. I understand that, for some, the motivation for taking part in those pursuits may not always be sport; we discussed last week that the provision of food may be involved, and that deer stalking could be undertaken for a combination of reasons. However, the use of the term “sport” is helpful in this context—

Yes—I have no problem with that at all. I would be happy to discuss that and to look back at some of the old legislation with Edward Mountain. For today’s purposes, however, I cannot support these amendments as they stand, as I do not think that they are required or, indeed, helpful.

Finally, I turn to amendment 228, in the name of Rachael Hamilton. I agree that killing, rather than simply attacking, should be the intention of the person who is using the bird of prey. I have listened to Rachael Hamilton’s arguments and I am happy to support the amendment.

I would not accept that. I absolutely accept the premise of the point, and the circumstances that Edward Mountain has pointed to are exactly those that the provision seeks to address—such as those examples that Forestry and Land Scotland has shared with us—but I do not accept that it would be necessary or acceptable to allow more than two dogs to undertake that activity.

I have said since the introduction of the bill that I am always happy to work with stakeholders and members of Parliament to ensure that the bill is as effective as possible. My amendments in this group are an example of my having done that. On the exception to search for injured wild animals, it was evidence provided by stakeholders at stage 1 and the recommendations of the committee at stage 1 that made the amendments necessary. The exception to search for dead wild animals was also developed after discussion with stakeholders.

I hope that members agree with my reasons for including the amendments and that they will support them. I also hope that they agree with my reasons for rejecting Rachael Hamilton’s amendment 168A. I am sorry to hear about Rachael Hamilton’s daughter’s incident and I hope that all are okay.

The amendments were developed in close consultation with stakeholders including Forestry and Land Scotland, and I have not had any evidence that more than two dogs would be required in order to fulfil the activity. It is clear to me, as I think it is to many people, that someone could easily claim that their pack of 10 dogs was searching for injured wild mammals, which would be a too-convenient cover for the illegal hunting of live wild mammals. For that reason, I cannot support amendment 168A, which would create inconsistencies and loopholes in the bill.

Amendment 148 agreed to.

Amendment 149 moved—[Màiri McAllan]—and agreed to.

Amendment 58 moved—[Edward Mountain].