After section 1

Protection of Wild Mammals (Scotland) Bill: Stage 3 – in the Scottish Parliament at 1:30 pm on 13th February 2002.

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Photo of David Mundell David Mundell Conservative 1:45 pm, 13th February 2002

Amendment 4, as the title of its group suggests, relates to dog walking. I lodged the amendment because I feel that it is vital that the issue is clarified. I am not satisfied that the issue is clear on the basis of the assurances given to the Rural Development Committee at stage 2, so I hope that any members who choose to speak against the amendment will say more than was said in committee.

As one commentator rightly concluded, the bill could ban everything or it could ban nothing. I believe that anything that Parliament specifically does not want to ban should be set out explicitly in the bill. Parliament clearly does not want to ban dog walking, but some supporters of the bill—who, for some inexplicable reason, did not include a ban on mounted hunting in the bill—are concerned that a person could go out on a horse with their dog alongside them and claim that they were walking the dog. That, they say, would be a legitimate defence to the charge that they were hunting. I find that preposterous, but it is consistent with the poor drafting of the bill and with the failure of the bill's supporters to amend the bill in a focused way that would actually outlaw the things that they claim they want to outlaw. Instead, ordinary people who are going about their ordinary activities could be criminalised if they are the subject of malicious allegations.

The concern is not with dogs chasing rabbits. As those members who have read the bill in detail will observe, there is no attempt to deal in any way with cruel practices that may take place in relation to the hunting of rabbits. It will remain quite legal to hunt rabbits with packs of hounds, for hounds to tear the rabbit limb from limb and for people to indulge in all the alleged conduct that we hear about—the comments are never substantiated—in relation to fox hunting. There could be no clearer demonstration that the bill has no intention of tackling animal cruelty than its failure to cover rabbits. However, the pursuit by a dog of a stray cat living wild, or indeed of another stray dog, might be considered a crime on the part of the dog walker. That is the ludicrous position that the bill creates.

If it is the will of Parliament that dog walking should be excluded, let us say it clearly and categorically. We have said everything else that we want to exclude. It is appropriate that dog walking be treated similarly.

I move amendment 4.

Photo of Elaine Smith Elaine Smith Labour

To say that the issue of the innocent dog walker has been overplayed would be an understatement. The issue has been spun in the press and to the Parliament, but the fact is that innocent dog walkers have never been under threat from the bill.

I was a member of the Rural Development Committee during the entire debate on dog walking and I heard some bizarre scenarios being suggested. The committee was advised by Rhona Brankin, who was representing the Executive, that if a dog killed a mammal while being walked,

"the Crown would have to prove that the dog was being used to hunt a wild mammal."

Mike Rumbles asked:

"Is the minister confirming that anyone who was out walking their dog and whose animal went off and hunted while it was out being walked could face prosecution?"

Rhona Brankin replied:

"In our view, it could not. That would be our advice."—[Official Report, Rural Development Committee, 20 November 2001; c 2434-35.]

To make things even clearer, the bill contains the phrase "deliberately hunts". That allows for accidental killing. Moreover, an amendment was passed to insert section 1A(1B) into the bill, which makes it crystal clear that, if the intention is to flush from cover with a dog and the dog accidentally kills the mammal, the dog handler is not liable for prosecution.

Amendment 4 adds nothing to the bill except a loophole. It would allow coursing in the name of exercising dogs. The amendment is totally unacceptable and I urge the Parliament to reject it.

Photo of Euan Robson Euan Robson Liberal Democrat

I received a representation from the Scottish Kennel Club about field trials in which there is no intent for the dogs that are involved to hunt or kill wild mammals, although a dog may occasionally inadvertently kill a wild mammal. I seek an assurance from the mover of amendment 4 or the proposers of the bill that, if the amendment is not agreed to, the Scottish Kennel Club's field trials will not be encompassed by the criminal offences that the bill would create.

Photo of Scott Barrie Scott Barrie Labour

I will speak briefly to amendment 4, which is similar to an amendment that was defeated at stage 2. Given some of the amendments that the committee passed, that is perhaps telling—it shows how bad amendment 4 is.

To write into the bill that someone walking their dog does not commit an offence sounds harmless, but there are two problems. First, the bill provides the assurances that David Mundell seeks. Section 1(1) makes it clear that it is an offence to "deliberately" hunt. No one who is walking their dog could be thought to be deliberately hunting.

Secondly—and just as important—members need to be aware of the written evidence that was submitted to the Rural Affairs Committee by the Deerhound Coursing Club.

Photo of Scott Barrie Scott Barrie Labour

No.

The club told the committee that the purpose of coursing with deerhounds is to give dogs exercise and hence maintain the breed lest it

"degenerate into a mere decorative pet".

By exempting people whose primary purpose in this context is exercise, amendment 4 expressly and knowingly allows hare coursing by the Deerhound Coursing Club. As such, the amendment is against the general principles of the bill and I urge members to oppose it.

Photo of Allan Wilson Allan Wilson Labour

The Executive neither resists nor supports amendment 4. However, our view is that the amendment is entirely unnecessary. A person who walks their dog is not deliberately engaging in the act of hunting and would therefore not commit an offence in respect of section 1 of the bill. Mr Mundell appears to have lodged the amendment for the avoidance of doubt, but we believe that it adds unnecessary clutter to the bill.

Photo of George Reid George Reid Scottish National Party

I have offered Mr Muldoon an opportunity to speak as the member in charge of the bill, but I understand that he has waived that opportunity on this occasion.

Photo of David Mundell David Mundell Conservative

I say to the minister that we are all for getting rid of unnecessary clutter, but I am afraid that the bill does exactly the opposite. However, I am reassured by the minister's robust statement. Perhaps if the previous minister had given such robust statements, a number of issues that are still in doubt would have been clarified.

Euan Robson made an important point. I cannot assure him that the activities to which he alluded would be safe under the bill as drafted.

Photo of David Mundell David Mundell Conservative

I am afraid not, as I am winding up.

Photo of David Mundell David Mundell Conservative

Section 1 of the bill gives cause to consider the legal interpretation of "deliberately". If a person goes somewhere where they know that there are wild animals and they know that their dog, although it is a pet, has a propensity to chase animals, they could still be deemed a perpetrator of a crime. Therefore, I will press amendment 4.

Photo of George Reid George Reid Scottish National Party

The member should be brief, as I am anxious that falconry should also be debated.

Photo of Brian Monteith Brian Monteith Conservative

Do I understand from what you said, Presiding Officer, that the proposer of the bill is unwilling or unable to give the point of clarification that Mr Robson seeks?

Photo of George Reid George Reid Scottish National Party

I will come back to that point within the next 10 minutes. As I say, I am anxious for falconry to be debated.

The question is, that amendment 4 be agreed to. Are we agreed?

Members:

No.

Division number 5

For: Aitken, Bill, Davidson, Mr David, Douglas-Hamilton, Lord James, Ewing, Dr Winnie, Ewing, Fergus, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Goldie, Miss Annabel, Grahame, Christine, Hamilton, Mr Duncan, Harding, Mr Keith, Jenkins, Ian, Johnstone, Alex, Lyon, George, McGrigor, Mr Jamie, McIntosh, Mrs Lyndsay, McLetchie, David, Monteith, Mr Brian, Mundell, David, Munro, John Farquhar, Quinan, Mr Lloyd, Radcliffe, Nora, Robson, Euan, Russell, Michael, Scanlon, Mary, Scott, John, Stone, Mr Jamie, Wallace, Ben, Wallace, Mr Jim, Welsh, Mr Andrew, Young, John
Against: Adam, Brian, Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Campbell, Colin, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Curran, Ms Margaret, Deacon, Susan, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Fitzpatrick, Brian, Gibson, Mr Kenneth, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Harper, Robin, Henry, Hugh, Hughes, Janis, Hyslop, Fiona, Ingram, Mr Adam, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, Maclean, Kate, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, Matheson, Michael, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McGugan, Irene, McLeish, Henry, McLeod, Fiona, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Murray, Dr Elaine, Neil, Alex, Oldfather, Irene, Paterson, Mr Gil, Peacock, Peter, Peattie, Cathy, Raffan, Mr Keith, Robison, Shona, Rumbles, Mr Mike, Scott, Tavish, Sheridan, Tommy, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Stevenson, Stewart, Sturgeon, Nicola, Swinney, Mr John, Thomson, Elaine, Ullrich, Kay, Watson, Mike, Whitefield, Karen, Wilson, Allan, Wilson, Andrew
Abstentions: Ewing, Mrs Margaret, Home Robertson, Mr John, MacDonald, Ms Margo, Tosh, Mr Murray

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 32, Against 88, Abstentions 4.

Amendment 4 disagreed to.

Photo of George Reid George Reid Scottish National Party

Amendment 36 is in the name of Fergus Ewing. He has one minute before the knife falls.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

I have lodged amendment 36 because section 1D does not adequately protect the sport of falconry. Some smaller birds that are used, such as the goshawk or harris hawk, rarely kill the small wild mammal—typically a hare. They are not able to do so because they are too light and too small. Section 1D does not allow the human dispatch—usually done by wringing the hare's neck—which prevents the infliction of prolonged and unnecessary suffering. Without such dispatch, the hare would take much longer to die.

The exception under section 1D applies when

"that person acts to ensure that, once a wild mammal is found or emerges from cover, it is shot, or killed by a bird of prey".

That is the standard; one has to act to make certain that the mammal is killed or shot. I have just explained that, in the case of goshawks and many other smaller birds of prey, that cannot be ensured. I hope that the alternative wording in amendment 36 will allow falconry, which has persisted for 3,000 years, to continue.

I move amendment 36.

Photo of George Reid George Reid Scottish National Party

The knife is down on this grouping. The question is, that amendment 36 be agreed to. Are we agreed?

Members:

No.

Photo of George Reid George Reid Scottish National Party

There will be a division.

I am afraid that this is another two-minute voting period. As the voting is going on, I advise members that I am conscious that parts of the Assembly Hall do not currently seem to have the maximum sound levels. The engineers are looking into that.

Division number 6

For: Adam, Brian, Aitken, Bill, Brown, Robert, Davidson, Mr David, Douglas-Hamilton, Lord James, Ewing, Dr Winnie, Ewing, Fergus, Ewing, Mrs Margaret, Fergusson, Alex, Fraser, Murdo, Gillon, Karen, Goldie, Miss Annabel, Gorrie, Donald, Grahame, Christine, Hamilton, Mr Duncan, Harding, Mr Keith, Jenkins, Ian, Johnstone, Alex, Lyon, George, MacKay, Angus, McGrigor, Mr Jamie, McIntosh, Mrs Lyndsay, McLetchie, David, Monteith, Mr Brian, Mundell, David, Munro, John Farquhar, Neil, Alex, Quinan, Mr Lloyd, Radcliffe, Nora, Robson, Euan, Scanlon, Mary, Scott, John, Stevenson, Stewart, Stone, Mr Jamie, Wallace, Ben, Wallace, Mr Jim, Wilson, Andrew
Against: Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Butler, Bill, Campbell, Colin, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Curran, Ms Margaret, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Fitzpatrick, Brian, Gibson, Mr Kenneth, Godman, Trish, Grant, Rhoda, Gray, Iain, Henry, Hugh, Hughes, Janis, Hyslop, Fiona, Ingram, Mr Adam, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, MacAskill, Mr Kenny, Macdonald, Lewis, MacDonald, Ms Margo, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, Matheson, Michael, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McGugan, Irene, McLeish, Henry, McLeod, Fiona, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Murray, Dr Elaine, Paterson, Mr Gil, Peacock, Peter, Peattie, Cathy, Raffan, Mr Keith, Robison, Shona, Rumbles, Mr Mike, Russell, Michael, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Sturgeon, Nicola, Swinney, Mr John, Thomson, Elaine, Ullrich, Kay, Watson, Mike, Welsh, Mr Andrew, Whitefield, Karen, Wilson, Allan, Young, John
Abstentions: Harper, Robin, Home Robertson, Mr John, Sheridan, Tommy, Tosh, Mr Murray

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 37, Against 80, Abstentions 4.

Amendment 36 disagreed to.

Photo of George Reid George Reid Scottish National Party 2:00 pm, 13th February 2002

I return to Mr Monteith's point of order. He will appreciate that I was trying to dispose of amendment 36. To the best of my understanding, Mr Monteith asked about the fact that Euan Robson had sought an assurance on behalf of a dog owners group about the effect of the bill on the group's activities. Mr Mundell could not give that assurance, Bristow Muldoon declined to give that assurance and the minister did not address the issue. The matter is a debating point and not a point of order.

Photo of Tricia Marwick Tricia Marwick Scottish National Party

I seek guidance from you, Presiding Officer. Fergus Ewing moved amendment 36, but because of the time constraints there was no opportunity for the sponsors of the bill to give an opinion. When we are coming close to the knife, I ask you to bear in mind the fact that other members might have a view.

Photo of George Reid George Reid Scottish National Party

Members will realise that I was doing my best to deal with amendment 36. I must work according to the clock; I will continue to do so and to balance the debate to the best of my ability.