Section 5 — Proceedings and penalties

Protection of Wild Mammals (Scotland) Bill: Stage 3 – in the Scottish Parliament at 4:15 pm on 13th February 2002.

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Photo of Murray Tosh Murray Tosh Conservative 4:15 pm, 13th February 2002

Amendment 73 is grouped with amendment 75. As we are running badly behind time, I ask the minister to be very brief. I shall then allow the member in charge to respond briefly and we will go straight to a decision.

Photo of Ross Finnie Ross Finnie Liberal Democrat 4:30 pm, 13th February 2002

Amendments 73 and 75 are technical amendments. Both replace the word "negligence" with the word "neglect", which, I understand, is the recognised criminal terminology.

I move amendment 73.

Photo of Murray Tosh Murray Tosh Conservative

I am grateful to the minister for that brief speech. I understand that Bristow Muldoon will defer to Scott Barrie on this group of amendments. He has one minute.

Photo of Scott Barrie Scott Barrie Labour

Amendments 73 and 75 are technical amendments. David Mundell made a mistake during stage 2—he persuaded the committee to delete certain phrases, but those that he persuaded the committee to insert are not quite as accurate as he said they were. It is just as well that we are fortunate enough to have the Scottish Executive lawyers to second-guess him.

Amendment 73 agreed to.

Photo of Murray Tosh Murray Tosh Conservative

Amendment 74 is grouped with amendments 76, 77 and 32.

Photo of Allan Wilson Allan Wilson Labour

Amendments 74 and 77 are technical amendments that tidy up the drafting. The Executive has no strong views on amendment 76. However, we recommend that Parliament reject amendment 32, which is also in the name of David Mundell. Amendment 32 subverts the purpose of section 5(7), which is to make an accused who finds himself pleading a defence prove things that are in his particular knowledge. It attempts to extend the protection that is offered in section 5(7) to all exceptions in the bill. An accused would simply have to claim that they thought that they were acting in any of the ways that are identified as possible exceptions in order to enjoy that protection. In our view, that would make the bill unworkable. For those reasons, we strongly suggest that members do not agree to amendment 32.

I move amendment 74.

Photo of Murray Tosh Murray Tosh Conservative

I point out to members that, if amendment 76 is agreed to, amendments 77 and 32 will be pre-empted.

I call David Mundell to speak to amendments 76 and 32. I would be grateful if he is as brief as the minister was.

Photo of David Mundell David Mundell Conservative

I will be brief, Presiding Officer.

Throughout the Rural Development Committee's consideration of the bill, we had the benefit of the presence of a vast array of Scottish Executive lawyers, only they chose not to speak.

I do not accept the minister's analysis of amendment 32. What is the point of introducing exceptions only to seek to limit their application? I am seeking to extend the provisions under section 5(7) to cover all the exceptions that we have discussed today, although, on the basis of what has happened so far, I do not think that there are any exceptions. It is important that we keep the bill consistent and that we allow people who genuinely thought that they were acting in accordance with one of the exceptions to say that that was what they were doing.

I am pleased that the Executive feels able not to condemn amendment 76. I hope that that amendment will garner support from members.

Photo of Murray Tosh Murray Tosh Conservative

I understand that the member in charge of the bill has delegated the response to the debate on this group of amendments to Brian Fitzpatrick.

Photo of Brian Fitzpatrick Brian Fitzpatrick Labour

I will be brief, Presiding Officer.

I am happy to support the Executive's amendments, but David Mundell's amendment 76 raises a particular problem. I want the valuable defence under section 5(7) to remain. It is not the intention that innocent people should be convicted and section 5(7) provides them with a defence. Landowners and dog owners who are establishing that they believe that land or dogs were being used for legitimate purposes could make that defence. That seems reasonable in the circumstances and accordingly I ask members to support the Executive's amendments and to reject those of David Mundell.

Photo of Allan Wilson Allan Wilson Labour

No.

Amendment 74 agreed to.

Amendment 75 moved—[Ross Finnie]—and agreed to.

Photo of David Mundell David Mundell Conservative

I will not move amendment 76. I always understood that it was consequential to amendments 2 and 3, which were rejected.

Amendment 76 not moved.

Amendment 77 moved—[Ross Finnie]—and agreed to.

Amendment 32 moved—[David Mundell].

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 32 be agreed to. Are we agreed?

Members:

No.

Division number 32

For: Aitken, Bill, Alexander, Ms Wendy, Davidson, Mr David, Douglas-Hamilton, Lord James, Ewing, Dr Winnie, Ewing, Mrs Margaret, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Goldie, Miss Annabel, Grahame, Christine, Hamilton, Mr Duncan, Harding, Mr Keith, Johnstone, Alex, McGrigor, Mr Jamie, McIntosh, Mrs Lyndsay, McLetchie, David, Monteith, Mr Brian, Mundell, David, Munro, John Farquhar, Scanlon, Mary, Scott, John, Ullrich, Kay, Wilson, Andrew
Against: Adam, Brian, 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, Home Robertson, Mr John, Hughes, Janis, Hyslop, Fiona, Ingram, Mr Adam, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, 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, Radcliffe, Nora, Raffan, Mr Keith, Robison, Shona, Robson, Euan, Rumbles, Mr Mike, Scott, Tavish, Sheridan, Tommy, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Sturgeon, Nicola, Swinney, Mr John, Thomson, Elaine, Wallace, Mr Jim, Watson, Mike, Welsh, Mr Andrew, Whitefield, Karen, Wilson, Allan, Young, John
Abstentions: Reid, Mr George

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 24, Against 94, Abstentions 1.

Amendment 32 disagreed to.

Amendment 18 moved—[Alex Fergusson].

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 18 be agreed to. Are we agreed?

Members:

No.

Division number 33

For: Aitken, Bill, Davidson, Mr David, Douglas-Hamilton, Lord James, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Goldie, Miss Annabel, Harding, Mr Keith, Jenkins, Ian, Johnstone, Alex, McGrigor, Mr Jamie, McIntosh, Mrs Lyndsay, McLetchie, David, Monteith, Mr Brian, Mundell, David, Munro, John Farquhar, Robson, Euan, Scanlon, Mary, Scott, John, Stone, Mr Jamie, Ullrich, Kay, Wallace, Ben
Against: Adam, Brian, 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, Ewing, Dr Winnie, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Fitzpatrick, Brian, Gibson, Mr Kenneth, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grahame, Christine, Grant, Rhoda, Gray, Iain, Hamilton, Mr Duncan, Harper, Robin, Henry, Hugh, Home Robertson, Mr John, 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, Lyon, George, 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, Neil, Alex, Oldfather, Irene, Paterson, Mr Gil, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, 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, Wallace, Mr Jim, Watson, Mike, Welsh, Mr Andrew, Whitefield, Karen, Wilson, Allan, Wilson, Andrew
Abstentions: Reid, Mr George

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 22, Against 95, Abstentions 1.

Amendment 18 disagreed to.