Seòmar agus comataidhean

Thank you, convener. Good morning, everyone, and thank you for having me. I am pleased to be able to come here today to discuss the interplay between the bill and the activities that are often collectively described as rough shooting.

I begin with a comment on the inclusion of rough shooting in the bill by correcting any suggestion that rough shooting was overlooked or not considered by the Scottish Government. The bill is ultimately about regulating the use of dogs to hunt wild mammals in the countryside and it applies across the piece to those who would use dogs while hunting. In fact, it is a strength of the bill that it does not differentiate between the types of hunting that are permitted under exception. Instead, it sets out the conditions under which dogs would need to be used while hunting. Rough shooting and related types of hunting have always been part of the bill. Indeed, that is why the bill has contained an exception for game shooting since it was published.

Having said that, I will move on to discuss the issue of clarity. In giving evidence to the committee, Lord Bonomy remarked that the bill is

“a very well-crafted piece of legislation”

and that

“It makes everything much clearer and simpler”.—[Official Report, Rural Affairs, Islands and Natural Environment Committee, 15 June 2022; c 41.]

However, I recognise that some people are seeking further clarity on exactly how the bill interacts with rough shooting, and I will try to add to the already considerable and helpful evidence that the committee has taken on that to date. Of course, as ever, I am open to suggestions about how provisions could be strengthened if any member feels that that is required.

In the time that I have left, allow me to set out my position on the interplay between the bill and rough shooting, starting with what constitutes an activity under the bill, something that I know has been discussed. Under the bill, a person is undertaking an activity if they are using a dog to

“search for, stalk or flush from cover a wild mammal”

as part of an exception from the general rule against hunting with dogs. In the case of rough shooting, that exception would come under section 6, which is entitled “Exception: falconry, game shooting and deer stalking”.

The effect of section 6 is that an individual can undertake an activity using up to two dogs. The provisions do not prevent multiple people from undertaking separate activities in the same location, but they set out clearly how they must conduct themselves when undertaking that activity. As well as the two-dog limit, those conditions are: taking “reasonable steps” to

“ensure that any dog used in the activity does not join with others to form a pack of more than two”;

that

“any dog used … is under control”;

and that they have the landowner’s permission, and so on. As with other types of hunting, all that applies to ensure that dogs do not form packs and do not chase and kill wild mammals.

The committee has heard much evidence that the dog breeds that are generally used in rough shooting do not form packs, that they will not chase animals, that they are well trained and under control and, interestingly, would not return to a rough shoot if they breached any of the provisions. I have heard that clearly at the committee’s evidence sessions, and that gives me confidence that rough shoots should have no difficulty in complying with the law. Indeed, although some adjustment might be required, many already practise what will be required under the bill.

I know that a lot of this was discussed at the committee’s round-table meeting and that there was understanding among many about what the regulations in the bill mean for rough shooting in practice. However, when the committee got through what I thought was a really helpful session, it got to the nub of the issue, which is the risk of vexatious complaints. I do not want such complaints to happen. I am happy to work with shooting organisations to produce guidance on that and make it available to anyone who has an interest.

Alongside that, the committee heard helpful evidence from Police Scotland about its role in gathering evidence. I believe that Detective Sergeant Billy Telford said that for claims, vexatious or otherwise, the police would consider the breed of dog, the distance between the dogs and what reasonable steps had been taken to separate any dogs that had joined up. He said that they would discuss those things with witnesses and consult experts, and that they might seize phones.

Ultimately, I believe that the risk of ill-intentioned or vexatious claims about the conduct of rough shoots can be managed, including via the good relationship between the shooting industry and the police, as was discussed at the committee’s round table. The risk of vexatious claims does not, in my view, justify acting in a way that could undermine the bill by opening a loophole to those who would seek to exploit it. I am sure that the rough shooting community would not want to be embroiled in such a situation.

In conclusion, I have set out the consistent intent of the bill, how it applies practically to most of what I have found to be termed rough shooting, how any vexatious claims could be managed, and how the risk of such claims does not justify creating a loophole in the legislation. Having said that, we are not yet at stage 2 and I remain happy to consider whether there is anything that I can do with the bill to clarify my position. Indeed, I will consider all amendments ahead of stage 2.

Hugh Dignon might want to come in afterwards, but, from my perspective, we have section 1(4) of the bill, which is about the issue of “using a dog”. Section 1(4) defines who will be regarded as having used a dog if an offence is committed. Essentially, it is an anti-avoidance provision, so that, if you are involved in unlawful hunting, you cannot claim to have not committed an offence simply because you were not controlling the dogs. It means that you are treated as having used a dog even if it was not under your “control or direction”.

With regard to practical examples of what that would mean, in traditional fox hunting, it is obvious that that would include those who are following the hunt as well as those one or two individuals who are controlling the pack. In rough shooting, it means that, if you shoot someone else’s quarry, flushed with their dogs, you are regarded as having been part of that activity.

To draw out the examples, if Leia Fitzgerald and I go rough shooting, each with our own dog or two dogs, as long as we use the dogs separately to flush separate quarry and comply with the conditions in section 6, that will be fine. If Leia is using two dogs, she could not shoot a rabbit that was flushed by me, if I had one dog or two dogs. That is because we would be treated as using all four dogs for the purposes of section 1(4) of the bill.

However, Leia, Hugh and I could lawfully go out with two dogs, with Leia controlling the dogs and Hugh and I without dogs but shooting the quarry. There are different permutations, but that is how the provision works. It is there to make sure that there is no avoidance of being involved in the offence because the person was not directing the dogs.

I can come back to you on that. Again, I point to what DS Telford said to you during your exchange with him. You asked him if the provision was based on evidence and he said yes. I am also pointing to comments including those from Mike Flynn and from Kirsty Jenkins of OneKind, who said that rabbits are sentient beings who are capable of suffering the same panic when they are chased and the same pain when they are killed as any other animal. I believe that we should treat rabbits on similar terms to those we apply to hares. I can come back to Rachael Hamilton with a written response on that if she wishes.

Yes, I am. It is balanced. I have always had confidence that the two-dog limit was a reasonable way of ensuring that element of control, which then ensures that the risk of animals being chased and killed in the countryside is reduced. That is the core purpose of the two-dog limit.

The challenge then is not about the concept of the two-dog limit but about folks understanding exactly how it applies in each situation. That is what we and the committee have worked hard to make clear throughout all your evidence sessions.

I know that my colleagues have spoken with the committee and set out how the two-dog limit applies under the bill. I tend to try to put it into my own non-official layperson’s language to make sure that it is absolutely clear. You can go out on a rough shoot, and the activity that you are undertaking is the flushing, searching for and stalking. The two-dog limit applies to that activity. Say, for example, that the bill team went on a rough shoot. Leia Fitzgerald and I could go out and, if I had two dogs, she could come with me and shoot the quarry that I flushed, as long as she did not have her own dogs. If three of us went out, providing that there were only two dogs between the three of us, the ones who did not have dogs could shoot the quarry that was flushed. There are different permutations, but I think that we are getting to the point at which it is clearer.

I do not have an answer to that, I am afraid. I am not an expert in—

Hugh Dignon has just made a good point to me, which is that we have never said that it would be a cover for that—rough shooting.

I do not think that my experience is particularly relevant to my role as a minister taking the bill through Parliament. However, I represent a rural constituency, I live in the heart of the countryside and I observe these things as a matter of course through living where I do.

On the point about YouTube, the only YouTube video on the activity that I have watched is the one that the British Association for Shooting and Conservation helpfully produced and invited me to watch at the Parliament. I suspect that that is the video that my colleagues were referring to.

However, we have undertaken substantial stakeholder engagement—as we would with any aspect of the bill. I appreciate that we are talking about rough shooting, but I was just reflecting last night that, since Lord Bonomy published his report on the 2002 act in 2016, this issue and the bill as a whole have been intensely scrutinised: we had Lord Bonomy in front of the Environment, Climate Change and Land Reform Committee in 2017; there was a public consultation in 2018; a second consultation in 2021; the committee’s own call for evidence on the bill earlier this year; five public and three private committee sessions at stage 1; a stage 1 report; and further correspondence between me and the committee. We then had the debate, the bill was agreed to at stage 1, and today is the third session that you have held specifically on rough shooting, so there has been a huge amount of stakeholder consultation and a great deal of scrutiny.

I think that that was discussed at your last session in which the committee was told that they included lurchers, whippets and other dogs of that kind.

It is not a problem at all. I hope that this session and the additional questions on rough shooting have provided clarity. There are inherent complications in producing a piece of law of this type. That is probably why a well-intentioned piece of work in 2002 ended up creating loopholes for the next 20 years. None of us should pretend that this is not a complicated area of law. However, I go back to Lord Bonomy’s view that what we have produced is a great deal simpler and clearer than what is there at the moment.

I have not said that I will produce guidance; I have said that I would be happy to discuss the production of guidance with the shooting industry, if that is something that would help in that bedding-in period that was discussed at last week’s round-table meeting.

Hugh Dignon might also want to come back in on that, but I believe that the bill seeks to regulate across the piece the way in which dogs are used in the course of hunting in the countryside, and consistency on that is important.