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Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill: Stage 3

– in the Scottish Parliament on 17th June 2020.

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Photo of Kenneth Macintosh Kenneth Macintosh Labour

The next item of business is stage 3 proceedings on the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill. Members should have the bill as amended at stage 2, the marshalled list, the two supplements to the marshalled list and the groupings of amendments.

The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate.

Members who wish to speak in the debate on any group of amendments should press their request-to-speak buttons as soon as possible after I call the group. Members should now refer to the marshalled list.

The Presiding Officer:

Group 1 is on animal welfare offences penalties. Amendment 32, in the name of Colin Smyth, is the only amendment in the group.

Photo of Colin Smyth Colin Smyth Labour

I declare an interest as a proud member of the League Against Cruel Sports, the deputy convener of the cross-party group on animal welfare and the Scottish Environment LINK MSP species champion for badgers.

Amendment 32 looks to increase the maximum penalties available for offences introduced by secondary legislation under the Animal Health and Welfare (Scotland) Act 2006. As it stands, the maximum penalty for any offences created by secondary legislation under that act is six months’ imprisonment or a maximum fine of £5,000. The bill will grant ministers broad regulation-making powers—for example, they will be able to introduce secondary legislation creating offences to secure the welfare of animals and relating to the licensing of activities involving animals. Those broad powers could underpin a range of potentially very serious offences. Offences created using those powers could also involve highly profitable businesses—for example, ministers could introduce regulations on the licensing of animal breeding. In that context, it is essential that fines can be set high enough to act as a deterrent.

My amendment proposes that ministers be able to set penalties of up to 12 months’ imprisonment or a £40,000 fine for offences made under sections 26, 27 and 28 of the 2006 act, which relate to “Provision for securing welfare”, “Licensing etc of activities involving animals” and “Prohibition on keeping certain animals”. That would provide ministers with the freedom to set appropriate penalties when introducing more serious offences through secondary legislation and would ensure that the financial penalties are adequate when profit is a factor. Ministers would still be free to set lower penalties where appropriate, and penalties set under those sections would still receive scrutiny through the regulation-making process. The 2006 act makes it clear that ministers have a statutory duty to consult prior to issuing regulations under those sections and that they must be approved by Parliament.

Amendment 32 reflects the need for higher maximum penalties for animal welfare crimes, to allow fair and proportionate penalties to be issued, which is one of the key aims of the bill. Having raised the wider issue of penalties during stage 2, I am pleased to have been able to work constructively with the minister to present the amendment, which is sensible and proportionate and will help to future proof the powers in the 2006 act to make regulations, including future regulations for the licensing of activities involving animals.

I move amendment 32.

Photo of Finlay Carson Finlay Carson Conservative

As we know, the overall objective of the bill is to increase the range of sentencing options in relation to animal welfare and wildlife offences. Therefore, we support Colin Smyth’s amendment 32, as we believe that it is right that anybody who commits an offence under the legislation should receive the highest penalty that is available. We support the proposed increase in penalties.

Photo of Liam McArthur Liam McArthur Liberal Democrat

Like Finlay Carson, we believe that at the heart of this bill is the desire to see cruelty towards animals and abuse of their welfare treated more seriously. That requires penalties to be increased and brought more in line with the sanctions that are in place in most other countries in Europe, in order to better reflect the seriousness of the crimes. I welcome Colin Smyth’s amendment 32, which is a further step in that direction, and the Scottish Liberal Democrats will support it.

Photo of Mairi Gougeon Mairi Gougeon Scottish National Party

At stage 2, I said that I fully appreciated the aim of the amendment that Colin Smyth lodged on this issue, and I indicated my support for his intention. Therefore, I was more than happy to work with him to provide a suitable alternative.

Amendment 32 is helpful, and the measure is a proportionate one that will give useful flexibility to develop future animal welfare regulations, with appropriate higher maximum penalties. Unlike Mr Smyth’s original amendment on the issue, it will not prevent the Scottish Government from providing for the use of fixed penalty notices or, indeed, lower maximum penalties for offences in future regulations. With that, I am happy to state that I support the amendment.

Amendment 32 agreed to.

The Presiding Officer:

Group 2 is on protecting dogs from unnecessary suffering: docking. Amendment 33, in the name of Mark Ruskell, is the only amendment in the group.

Photo of Mr Mark Ruskell Mr Mark Ruskell Green

I declare an interest, as I am an honorary associate member of the British Veterinary Association.

It has been three years since Parliament partially reintroduced the barbaric tradition of puppy tail docking that had been banned under the Animal Health and Welfare (Scotland) Act 2006. During that period, there has been no monitoring of how that tradition has been resurrected. In fact, after the ban was overturned in Parliament, the Government was explicit that it would not monitor any of the consequences.

No figures are available for the number of puppies that have undergone amputation in Scotland. No evidence exists on whether the practice has been restricted to working dogs or has led to many more dogs undergoing a painful procedure purely for cosmetic reasons. No analysis has been done of whether those operations have reduced the number of injuries to working dogs, and no guidance has been given to vets on the certification of puppies that are destined to become working dogs. I am also unaware of any further studies, support or guidance being available on the reduction of tail injuries to working dogs by tail sheathing or proper kennelling techniques.

Once again in this Parliament, tradition is trumping evidence. The Government is once again turning a blind eye to an issue in order to placate a country sports lobby that has the ear of the Cabinet. The lack of evidence is why science-led bodies such as the British Veterinary Association, OneKind and Blue Cross continue to oppose the amputation of a healthy dog’s tail and a growing number of veterinary practices are simply refusing to carry out those operations.

Even if we accepted the argument that tail shortening prevents damage to some working dogs, evidence shows that more than 300 puppies would have to have their tails docked to prevent the amputation of one adult dog’s tail—more than 300 puppies that might suffer long-term pain and behavioural and communication problems in later life as a result of those operations, simply to avoid one severe tail injury.

The animal welfare arguments in favour of the amputation of a healthy puppy dog’s tail did not stack up in 2006, they did not stack up in 2017 and there is no evidence to suggest that they stack up in 2020. In fact, there is simply no new evidence at all, because no one is even bothering to look for it. For those reasons, it is time to restore the full ban on the docking of all dogs’ tails.

I move amendment 33.

Photo of Gail Ross Gail Ross Scottish National Party

Mark Ruskell and I agree on a lot of things—including much of what is in the bill—but amendment 33 is not one of them. I find the heading of the proposed new section offensive, because it infers that people who support the shortening of tails in working dogs are subjecting them to “unnecessary suffering”. The Parliament had that debate in 2017 and we voted on it. I have had representations, not just from the shooting, hunting and landowning lobby but from people who own non-working dogs that have had injuries to their tails. They ask me why, if their spaniel can hurt its tail by wagging it against a door, a spaniel is going into bushes and hurting its tail. We have heard from vets who have had to cut tails off adult dogs and all the suffering that goes along with that.

Mark Ruskell talks about evidence gathering but, for a lot of things here, not much evidence has been gathered, so that is hypocritical. He is right that it is an animal welfare issue, but the animal welfare issue comes when an adult dog has to get its tail taken off; that is a lot more distressing for the dog than when the procedure is done under—

Photo of Mr Mark Ruskell Mr Mark Ruskell Green

I understand the point about distress, but is it 300 times more distressing for an adult dog? That is what we are talking about. Three hundred puppies need to have their tails docked in order to get the welfare benefit that Gail Ross points to, of one dog not having an amputation when it is an adult.

Photo of Gail Ross Gail Ross Scottish National Party

I thank Mark Ruskell for that intervention, but I do not accept the argument that, because 300 puppies have to have their tails shortened, it is 300 times more distressing for an adult dog. That is a nonsense argument.

I will not support amendment 33 and I urge members not to support it. As I said, the animal welfare issue is about adult dogs and not about the controlled situation in which puppies have their tails shortened for a good reason.

Photo of Brian Whittle Brian Whittle Conservative

I am grateful to be able to speak to amendment 33. As an owner of a working cocker spaniel, who has a full tail—even though he wags it so much that it bleeds from time to time—my instinctive position is to rail against any suggestion that such a dog should have his tail docked.

In 2017, when the current law was implemented, overturning the ban that was instigated in 2006, I was uncomfortable with supporting any change in the law. I was encouraged to speak to the veterinary community, which brought me to recognise that, in rare circumstances, for the welfare of the dog, the procedure should take place. I asked myself whether I would refuse if a vet indicated to me that, for his welfare and health, my dog needed his tail docked. The answer is no; I am not a vet and I always listen to that expert advice, just as I would listen to the advice of any other healthcare professional. Exceptional circumstances might necessitate that procedure; therefore, it is wrong to revert to an outright ban, and I ask the chamber to vote against Mark Ruskell’s amendment 33.

Photo of Christine Grahame Christine Grahame Scottish National Party

I declare an interest as the convener of the cross-party group on animal welfare and I speak in support of Mark Ruskell’s amendment 33. I supported the same argument in an intervention in 2017 and nothing has changed my mind; it remains even more resolute.

Those who argue against amendment 33 refer to “tail shortening”. Why move away from the term “docking”? We are using a euphemism to conceal something that is not necessary for an animal. Even if members believe in that argument, when a working bitch has a litter, she might have six or eight puppies, all of which have to have their tails docked, although not all of them will become working dogs. For the sake of one or two, the rest go through the procedure. I do not want to spend too long on that, because my position is well known.

I hope that members will vote with their consciences on amendment 33, rather than bother about party whips, which can get in the way of honesty.

Photo of Claudia Beamish Claudia Beamish Labour

I speak in support of Mark Ruskell’s amendment 33. Previously, Scottish Labour has supported a ban on tail docking, and I agree that a ban will protect dogs from unnecessary suffering. I was a member of the committee that took evidence on the matter in 2017; I was convinced by the arguments then, and they have not changed. There were arguments that it was necessary to dock the tails of some working dogs, but I was not convinced by them. There is the possibility of a dog wearing a sheath or of bandaging a dog’s tail to prevent such injuries. Scottish Labour supports the move to introduce a ban in order to protect animal welfare.

Photo of Liam McArthur Liam McArthur Liberal Democrat

As Gail Ross said, we ran through this debate three years ago. Last time, the issue provoked a great deal of passionate argument on both sides, and that is the case this time, too. As I observed, both sides argued their case having weighed up and balanced the competing interests in relation to welfare, and the conclusions that were drawn were genuinely held.

Mark Ruskell mentioned a lack of evidence about the appropriate enforcement of the legislation since 2017. However, by lodging amendment 33 at stage 3, he has not allowed the committee or the Parliament to scrutinise it prior to that, nor has he presented any new evidence that the legislation is not being applied appropriately. Those who came to a different conclusion last time, as Christine Grahame did, will no doubt feel equally strongly and will be equally determined to vote for Mark Ruskell’s amendment. I understand that. As Christine Grahame said, members might well have to vote with their conscience on the amendment; it might not be appropriate to apply the party whip. My colleagues will vote accordingly, as they did in 2017.

Photo of Finlay Carson Finlay Carson Conservative

As we have heard, tail docking was banned in 2007 but, to bring the legislation in line with that in the rest of the United Kingdom, exemptions were put in place for working spaniels and hunt point retriever breeds. There is no evidence—either available or presented—that indicates any new welfare concerns about that procedure.

It is very disappointing that the Greens, as they often do in the Parliament, lodged an amendment that was outwith the scope of the bill and did not allow for any scrutiny by the committee at stage 2. In some ways, it is disrespectful that Mark Ruskell has lodged amendment 33, given that committee members take a proactive role in considering legislation. We will certainly not be voting for amendment 33.

Photo of Mr Mark Ruskell Mr Mark Ruskell Green

On a point of order, Presiding Officer. Can I ask for your guidance on whether amendment 33 is outwith the scope of the bill?

The Presiding Officer:

That is a good question. The answer is that the amendment is within the scope of the bill.

Photo of Finlay Carson Finlay Carson Conservative

I take on board your ruling, Presiding Officer, but the amendment is outwith the spirit of the bill. All the way through the bill process, we have been looking at sentencing and certainly not at introducing any new offences.

Photo of Mairi Gougeon Mairi Gougeon Scottish National Party

I start by refuting some of the claims that were made by Mark Ruskell, because they are absolutely outrageous and completely unfounded. No one has the ear of the Cabinet. We are not trying to revive a barbaric tradition. The whole purpose of amendment 33 is just to reignite a debate for the sake of it.

I absolutely agree with some of the points that have been raised by other members from across the chamber. Gail Ross put it very well when she said that the procedure is done for animal welfare. Terms such as “docking” are bandied about to reignite the emotion and the debate. As Finlay Carson said, it is an offence to dock tails. Christine Grahame made a point about whether there is a differentiation between docking and shortening. There is a differentiation, because they are two completely separate things.

The bill’s provisions have been carefully developed in close collaboration with the key front-line enforcement agencies in order to make the most essential improvements that they have asked for in animal welfare enforcement. I am really disappointed that Mark Ruskell has taken the opportunity that has been presented at the last minute of the bill process to revive controversy on a matter that was decided by the Parliament just three years ago. That is made worse by the fact that I have sought, at all times, to work with other members across the chamber to build consensus. I have engaged with Mark Ruskell a number of times at stages 1 and 2, and at no point was that issue raised.

I completely understand the strong feelings and emotive arguments on both sides of the debate. However, they were all fully explored—after many years of discussion and debate—by detailed scientific analysis, Scottish Government-funded research and a full public consultation.

After due procedure and consideration by the relevant committee, the legislation, which now allows the tail shortening of specific types of working dogs to be performed only by veterinary surgeons and under very specific conditions, was approved by Parliament in 2017. Outwith that, tail shortening of dogs is not permitted except as part of veterinary treatment.

There is a fine balance that leaves decisions on whether to carry out tail shortening on working dogs—in individual cases—to the professional judgment of veterinary surgeons. They are the best people to make difficult, balanced decisions about what is in the best long-term interests of the individual animals that are presented to them. It also means that we have significantly tighter legislation on this than other parts of the UK.

Photo of Mr Mark Ruskell Mr Mark Ruskell Green

It is welcome that the minister is listening to veterinary surgeons. Will she also address veterinary surgeons’ concerns that there is no certification of working dogs? Unlike in England and Wales, no template of certification is produced in Scotland. That would give veterinary surgeons some comfort that they are sticking to the letter of the law. If the Government is engaging with science and sector bodies, why has that not happened?

Photo of Mairi Gougeon Mairi Gougeon Scottish National Party

We have significantly tighter legislation in Scotland. The decisions are down to the professional judgment of veterinary surgeons, and if Mark Ruskell was as concerned about that issue as he claims to be, he has had plenty of opportunities to discuss it with me. I would have been happy to discuss it with him not only during the earlier stages of the bill, but at any time prior to that. In all the time that I have been in my role, the issue of tail shortening has not been raised.

I will not rehash all the arguments for and against the tail shortening of dogs, because we have done that.

Amendment 33 concerns secondary legislation, which does not need a bill to amend it. Therefore, it does not fit at this stage. The matter could be reviewed in future after proper, detailed consideration of any new evidence—if we think that that is the best use of our time. However, the place to consider the subject in any more detail is not here, so I oppose the amendment and ask Mark Ruskell to withdraw it.

Photo of Mr Mark Ruskell Mr Mark Ruskell Green

I press amendment 33.

During the past three years, the Scottish Government has refused to monitor and review its own legislation. The policy was put in place against the wishes of bodies that represent the veterinary sector in Scotland. They have raised concerns about that. There was no monitoring of the roll-out.

The minister cannot tell me how many puppy dogs’ tails have been docked in the past three years and she cannot tell me what the welfare benefits are. All that we hear are anecdotal responses from Gail Ross and others about how they feel that there is a net animal welfare benefit to the partial lifting of the restriction on tail docking.

I have asked for evidence, in written questions, during the past three years and have had a plain response from the Scottish Government that it is simply not looking at the evidence and it is not monitoring its policy. Therefore, I ask the Scottish Government to make a commitment to review and monitor its policy.

If the Government thinks that the measure has a net welfare benefit, it should prove it by monitoring and checking that the policy is working and by doing what it said it would do three years ago. We do not have that evidence and, as a result, I think that we should restore the full ban.

The Presiding Officer:

The question is, that amendment 33 be agreed to. Are we agreed?

Members:

No.

The Presiding Officer:

As this is the first division of the afternoon, I suspend the meeting for five minutes and call members to the chamber.

16:23 Meeting suspended.

16:28 On resuming—

We will proceed with the division on amendment 33.

Division number 1 Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill: Stage 3

Aye: 22 MSPs

No: 56 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

Abstained: 1 MSP

Abstaineds: A-Z by last name

The Presiding Officer:

The result of the division is: For 22, Against 56, Abstentions 1.

Amendment 33 disagreed to.

Group 3 is on disqualification orders. Amendment 34, in the name of Maurice Golden, is grouped with amendments 35 and 63.

Photo of Maurice Golden Maurice Golden Conservative

I am pleased to propose amendment 34, having raised the issue of disqualification orders during the passage of the bill, which is the appropriate, fair and balanced way in which to introduce amendments that are acceptable to the chamber.

A theme of discussions during the passage of this important bill has been the consistency of sentencing, including the use of disqualification orders. Amendment 34 seeks to address the issue by making it a requirement for courts to consider the use of disqualification orders in the way in which they were always intended to be used—that is, as an animal protection measure, rather than as a form of punishment.

The requirement will apply to all relevant animal welfare cases and require courts to explain their reasons for imposing disqualification orders of the type specified, or for not imposing a disqualification order, and require a record of their reasons to be kept. I hope that that will improve the consistency and transparency of courts’ judgments, and provide us all with a better sense of how courts are using all the tools that are available to them to protect animals and to address the worst harms and offences.

Amendment 63 is a technical amendment that seeks to modify the long title of the bill to include a reference to the proposed requirement on courts to consider making disqualification orders following convictions for animal welfare offences.

I hope that members will support both my amendments. I look forward to hearing further information from Colin Smyth on amendment 35.

I move amendment 34.

Photo of Colin Smyth Colin Smyth Labour

I welcome amendment 34, in the name of Maurice Golden, which seeks to improve the use of disqualification orders.

During stage 1, a number of stakeholders highlighted the inconsistent use of disqualification orders. Maurice Golden and I introduced amendments on that issue at stage 2. When I was considering what changes were needed at stage 3, a number of organisations, including OneKind, highlighted four key issues to me.

The first is the need to clarify that the default position in all cases should be for courts to consider a disqualification order. The second is the need for a clear requirement for courts to state the reasons for their decision, whether or not they decide to issue an order. The third is the lack of records on the use of disqualification orders, which could be addressed through a new requirement for the Crown Office and Procurator Fiscal Service to keep a record of all disqualification orders and applications to vary or delete them. The fourth is the need for clarification that the disqualification order part of the sentence imposed by courts is not a penalty in itself.

Combining the four changes would clarify the purpose of disqualification orders, encourage their proper use, help us gain a better understanding of how and when they are used, and identify any existing issues with their use.

I consider that Maurice Golden’s amendment 34 successfully tackles the first three issues. There is a gap in that it does not address the fourth issue. My amendment aims to do that—it is designed to be a helpful addition to amendment 34.

Amendment 35 seeks to clarify in law that disqualification orders are a means of protecting animal welfare. The orders are issued to prevent those convicted of animal welfare offences from owning or working with animals. That is not a punitive measure; it is an animal welfare measure.

The law as it stands suggests that such orders can be used

“instead of ... any other penalty”.

Amendment 35 would remove that provision and make it clear that disqualification orders should be issued as needed for the protection of animals, and not as an alternative to a penalty.

The legislation as amended would read:

“A disqualification order may be made in addition to any other penalty or order which may be imposed in relation to” a relevant offence. It would not say that disqualification orders could be issued only alongside a penalty—although I cannot think of a scenario whereby a disqualification order on its own would ever be deemed appropriate without a penalty such as a fine.

My amendment simply states that a disqualification order should not be issued as an alternative to a penalty. I am sure that that would be made clear in any guidance on the legislation. I urge members to support all the amendments in the group.

Photo of Mairi Gougeon Mairi Gougeon Scottish National Party

I fully support the rationale for Maurice Golden’s amendment 34.

I support the intention behind the first part of Colin Smyth’s amendment 35, and the amendment is similar to amendment 34. However, although the second part of amendment 35 is equally well intentioned, I am concerned that it strays too far into the territory of limiting the discretion of the courts to use the penalties and powers that are available to them after conviction for a relevant welfare offence. That is not something that Government, or, indeed, Parliament, should be doing.

Amendment 35 seems to be intended to prevent disqualification orders from being issued on their own. Although that might not be a common scenario, in some instances it might be appropriate, depending on the facts and circumstances of a particular case and bearing in mind the widely varying circumstances in which relevant animal welfare offences of different types might be committed. It is therefore important that we do not inappropriately fetter the ability of courts to make such decisions.

For those reasons, I cannot support amendment 35. I hope that Colin Smyth will consider not moving it, but if he should do so I urge members not to support it.

The Presiding Officer:

I call Maurice Golden to wind up on group 3 and to indicate whether he wishes to press or seek to withdraw amendment 34.

Photo of Maurice Golden Maurice Golden Conservative

I will press amendment 34.

Amendment 34 agreed to.

Amendment 35 moved—[Colin Smyth].

The Presiding Officer:

The question is, that amendment 35 be agreed to. Are we agreed?

Members:

No.

Division number 2 Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill: Stage 3

Aye: 42 MSPs

No: 38 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 42, Against 38, Abstentions 0.

Amendment 35 agreed to.

Group 4 is on vicarious liability. Amendment 36, in the name of Claudia Beamish, is grouped with amendments 37 to 40, 1, 53 and 54.

Photo of Claudia Beamish Claudia Beamish Labour

The amendments in this group seek to extend the bill’s provisions on vicarious liability to certain offences under the

Wildlife and Countryside Act 1981 and the Wild Mammals (Protection) Act 1996.

The offences referred to are not only heinous crimes of cruelty to wildlife; they are also significant in the midst of an environmental emergency. I welcome the fact that the minister has sought to work with me on amendment 39, which, for clarity, seeks to allow for the option of extending the established provisions on vicarious liability in the 1981 act to those involving the illegal setting of traps and snares.

We know that birds of prey are still being harmed, sometimes fatally, by pole traps and uncovered spring traps. In the past year, Police Scotland has investigated incidents involving spring traps set next to a hen harrier nest, and we have all seen the images that have appeared of a golden eagle in flight with what appears to be a spring trap on its leg. I hope that the introduction of vicarious liability for such offences would act as a deterrent and a wake-up call to the very few individuals who still will not respect the law. They include the owners and managers of land on which such offences are committed, as well as the individuals who themselves commit them.

I still consider the amendments extending vicarious liability to the other offences that I have listed to be necessary. I have listened to the minister’s concerns over their legal drafting, which I addressed after stage 2. In brief, they cover the following matters. Amendment 36 is to address the sale, care, possession or transport of protected wild birds and their eggs. Amendment 37 is on the failure to meet legal registration requirements for captive birds and their eggs, or keeping them illegally due to a past conviction for their ill treatment. Amendment 38 is on the illegal confinement of protected birds. Amendment 40 is on the taking of wild hares in the closed season, the intentional destruction of protected wild plants, including their sale, and the possession and sale of animals or invasive species of plants. Amendment 53 highlights the grievous offences that are listed in section 1 of the Wild Mammals (Protection) Act 1996, which include the mutilation, beating, stabbing and so on of

“any wild mammal with intent to inflict unnecessary suffering”.

Amendment 54 is consequential to amendment 53.

From my discussions with the minister, I am aware that she has reservations about the justification for applying vicarious liability to those offences. However, I would argue that we must focus on sending a strong message of deterrence. There are bad landowners and land managers—although they are very few in number—who are aware of, or are committing, those crimes, and they should shoulder the penalties. We are talking about illegal acts that can easily go unreported, but they can be reported. Such acts can be very cruel and can cause environmental loss, and they should be taken very seriously.

With the introduction of vicarious liability, the onus is on the landowner or employer to train their staff properly to ensure that they know the law with regard to wildlife, as much as they would be responsible for training staff on health and safety or other issues on any estate or land. One could say that the introduction of vicarious liability in those areas is an important improvement in the working conditions of gamekeepers.

Furthermore, it has been shown that vicarious liability, when it is used alongside other measures, has been a beneficial addition. In the past, it was introduced alongside the satellite tagging of birds and, in tandem, those two measures have served to reduce the incidence of raptor poisonings in Scotland.

With regard to other measures, it is perhaps worthwhile to stress that the penalties set out in other amendments serve as a complementary set of proposals that would work alongside the extension of vicarious liability.

I support Mark Ruskell’s amendment 1, which relates to badger setts. I am quite clear that the destruction of setts is as serious as killing or injuring a badger in terms of the damage that is caused. It would be difficult for those in charge on the land not to know that a badger sett was being destroyed, and it would surely take quite an amount of person power to destroy a sett. A vicarious liability provision is therefore vital in protecting that species, in order to send a clear message to the minority of landowners and agents and their employees who risk flouting the law by carrying out such a serious crime.

There is a limited basis for vicarious liability in the 2011 act; the owner or manager of the land has very limited liability, and has a clear defence at their disposal. I therefore ask members on all sides of the chamber to support all the vicarious liability amendments in group 4, including Mark Ruskell’s amendment 1. I very much hope that they will do so, because the amendments really will add to the protections that are already in place for wildlife and our environment across Scotland.

I move amendment 36.

Photo of Mr Mark Ruskell Mr Mark Ruskell Green

I support all the amendments in group 4, and I very much welcome Claudia Beamish’s work in committee in leading the arguments for the extension of vicarious liability.

My amendment 1 extends the provision of vicarious liability in relation to badgers. However, it also protects landowners and managers from liability if an employee or agent commits the offence outwith their employment or land. The amendment is tighter than the one that I lodged at stage 2; it narrows the liability and mirrors the existing provision and definitions in relation to birds.

I have attempted to work with the Government on my amendment, but there seems to be an underlying concern on the Government’s part about vicarious liability, and I am still trying to pin down the reasons for that. Vicarious liability seems to be working, and it seems to be driving action by landowners to avoid committing offences in relation to birds and pesticides. There remains a very high bar for prosecution.

Photo of Edward Mountain Edward Mountain Conservative

I support the member’s intention to stop the damaging of badger setts, which we should not condone. I am a farmer, as is listed in the register of members’ interests. Occasionally, badgers wander and form temporary setts in fields which may be ready for harvest. Driving over a badger sett could be an accidental action if you do not know that it is there. It is perfectly possible to do so with a combine unless you walk every inch of the field before you go there. It would not be Mr Ruskell’s intention to punish somebody who did that accidentally without knowing that the badger sett was there, would it?

Photo of Mr Mark Ruskell Mr Mark Ruskell Green

Badgers are not birds of prey. They are not an ephemeral species and do not fly around Scotland, so their territories and habitats are well known. If badgers moved from an existing badger sett in a woodland into Mr Mountain’s field, I would expect him to take due care and to ensure that any badger sett was not destroyed. I think that landowners will recognise that. The vast majority of landowners in Scotland will be well aware of whether they have badgers on their land. I would be surprised if landowners did not know that. [

Interruption

.] I will not take an intervention, because I need to make progress.

Badgers are territorial animals that live in big identifiable setts, which, in the majority of cases, have existed for decades. It is virtually impossible for a landowner or land manager not to know that badgers exist on their land.

The briefing from Scottish Land & Estates tells us that badgers are “widespread” and that therefore everything is okay and none of the legal protections needs to change. However, I have been sent pictures by Scottish Badgers—I am sure that other members have been sent them, too—of many horrific cases of sett destruction and the death of whole families that have been maimed, crushed and asphyxiated. In those incidents, it has been impossible to pin down liability, because contractors, subcontractors, agents and landowners have all passed the buck.

That is why I do not think that everything is okay. I think that we need to tighten protections for badgers by extending the penalties and by introducing vicarious liability. Law-abiding landowners and land managers have nothing to fear from vicarious liability being applied to badger offences. However, those who wilfully allow sett destruction and persecution to take place need to be brought to justice.

Photo of Mr Mark Ruskell Mr Mark Ruskell Green

Without vicarious liability, that kind of reckless destruction will continue to be met by a wisnae me attitude, and one of our most iconic species of wildlife will continue to suffer and pay a very heavy price.

Photo of Finlay Carson Finlay Carson Conservative

We oppose amendment 1, because it is already an offence to knowingly cause damage, or permit damage to be caused, to a badger sett. We recognise that badgers are protected, but they are widespread and are not considered to be a species of concern by Scottish Natural Heritage. There is a healthy population spread and distribution across Scotland. Therefore, amendment 1 does not serve any useful purpose, because it is targeted at an area of law that we believe is working well.

I tried to intervene on Mark Ruskell to ask him whether he understands that persecution is normally limited to poachers or badger baiters with dogs rather than landowners, who his vicarious liability amendment would chase. I will take an intervention from Mr Ruskell if he wants to answer that.

Photo of Mr Mark Ruskell Mr Mark Ruskell Green

I apologise for not letting Mr Carson in earlier. What he says is the case, but he needs to recognise that there have been cases in which housing developers and forestry operators have destroyed setts and it has been almost impossible to bring those agencies to justice through the criminal prosecution system. Vicarious liability is important so that we pin down liability, because the buck keeps getting passed from a contractor to a subcontractor and back to the landowner again, and cases are not being brought forward successfully.

Photo of Finlay Carson Finlay Carson Conservative

That intervention allows me to refer to the issues that the Law Society of Scotland has raised. It has suggested that, if there are examples of circumstances and cases in which the Crown Office and Procurator Fiscal Service has been unable to prosecute, it would be useful to know about those, and that gaps could be filled where the law requires to be extended. However, the Law Society suggests that

“To criminalize vicarious responsibility would effectively extend the law”,

whereas it was understood that the bill was not going to do that.

The Law Society also states:

“vicarious liability tends not to form part of criminal law as a person is normally only liable for their actions and not the actions of others.”

It goes on:

“If vicarious liability is to apply here, where an employee commits an offence in the course of their employment, the employer could be held criminally liable for the actions of their employee, unless a due diligence defence applies”.

The society argues that that would bring in a new offence.

I firmly believe that the extension of vicarious liability not only in the case of badger setts, but in the cases highlighted in Claudia Beamish’s amendments 36 to 40, requires far more consultation and needs to receive proper scrutiny, rather than that being done through amendments lodged in this fashion.

I will address amendment 39. As I have already said, vicarious liability tends to be a blunt tool and effectively reverses the burden of proof—a landowner or manager could be found guilty unless they were able to prove that they had briefed, trained and instructed employees. We know that the Snares (Training) (Scotland) Order 2015 introduces a requirement for all snare operators to be trained and for all snares to be identified through a tag that is registered through Police Scotland. SNH has also made it a requirement of the 2020 general licence for individual trap operators to attach personal identification to each predator trap. We are not aware of SNH raising any concerns, and we understand that the number of offences relating to illegally set snares is minimal.

Pest control is integral to land management in Scotland. The amendment is likely to have unintended consequences for the conservation of some of our most vulnerable species, including ground-nesting birds. We cannot support it without data and evidence being available to show that it is needed. I do not believe that we have given the issue sufficient consideration in order to make that decision. Conservative members will vote against all the amendments in group 4 relating to vicarious liability.

Photo of Liam McArthur Liam McArthur Liberal Democrat

At stage 1, I expressed the view that there was a case for looking at how vicarious liability, as first introduced in relation to wildlife crime in the Wildlife and Natural Environment (Scotland) Act 2011, might usefully and sensibly be extended. I was interested in Mark Ruskell’s comments about the effectiveness of the 2011 act. Having been involved in the committee that scrutinised the Wildlife and Natural Environment (Scotland) Bill, I was under the impression that there was general acceptance of the limitations of vicarious liability, either as a deterrent or as a means of punishing those whom it targeted. Mark Ruskell is absolutely right in commending Claudia Beamish for her efforts to lead the exploration of options for such an expansion, although, ultimately, a number of those options seem problematic in terms of how they would work in practice. That said, unlike Finlay Carson, the Scottish Liberal Democrats strongly support the extension of vicarious liability in relation to the use of snares and other matters, and will therefore be happy to support Claudia Beamish’s amendment 39.

Photo of Edward Mountain Edward Mountain Conservative

I rise to correct Mr Ruskell on a point of fact. He said that badgers are territorial and that they live in setts. Indeed, he is right, but when those setts become full, the animals move out and set up new colonies and setts across the countryside. Mr Ruskell cannot be blind to the movement that happens at this time of year when badgers move out because mothers that are protecting the cubs that are born in their sett force non-mature adults and mature adults that are not part of the social clan to move out. Those adult badgers then establish temporary holding areas across the land. I have seen young badgers moving into areas, and I can give Mr Ruskell the example of one badger falling down a crack that had been caused by dry weather. The badger then holed up in there because it had been forced out of its sett and there was nowhere else it could establish itself.

It worries me that we are going to accidentally catch people who have no intention of damaging a badger or badger sett and who genuinely do not know that badgers are there. I offered the First Minister the opportunity of coming for a walk with me in the countryside to see what it is like. She refused my offer. I offer Mr Ruskell the same opportunity of coming for a walk with me and having a look at badger setts. I can show him plenty that demonstrate my example. He can take me up on that offer if he wants to.

Photo of Mairi Gougeon Mairi Gougeon Scottish National Party

During stage 2, in response to the arguments that had been advanced by Claudia Beamish and Mark Ruskell, I said that I did not believe that it was necessary, practical or proportionate to seek to apply a charge of vicarious liability to the numerous offences that they sought to apply it to, although I agreed to look again at what had been proposed. After giving the issue very careful thought and consideration, I think that it would not be unreasonable for the charge of vicarious liability to be applied to certain trapping and snaring offences.

Claudia Beamish’s amendment 39 is narrow and proportionate; the important point is that it applies same criteria that the existing offences in the Wildlife and Countryside Act 1981 apply with regard to who can be held vicariously liable. The Government therefore supports amendment 39.

I turn to the other amendments that Claudia Beamish has lodged. Amendments 36 to 38 would apply the charge of vicarious liability to a number of offences under the Wildlife and Countryside Act 1981, including offences that are related to the protection of wild plants or the keeping or sale of invasive animals. However, as I said at stage 2, I have not heard any compelling reasons that demonstrate that vicarious liability is appropriate for those offences. We simply do not have the evidence to show that landowners and managers have been complicit in such crimes.

Mark Ruskell’s amendment 1 would apply vicarious liability to section 1(1) of the Protection of Badgers Act 1992, which deals with offences involved in the taking, injuring or killing of badgers, and section 1(3), which deals with the possession of a dead badger or a part thereof. I absolutely appreciate Mark Ruskell’s efforts in working on the amendment and the engagement that took place before stage 3. However, the amendment has significant drafting deficiencies, in that it is not at all clear who it is aimed at and who it would apply to.

We have already discussed the importance of specificity when it comes to matters of criminal law. Amendment 1 would extend the application of vicarious liability to any owner or manager of

“land on which badgers are found”.

That is an extremely wide-ranging and non-exhaustive definition. The amendment opens up the possibility of vicarious liability prosecutions being taken against a whole host of individuals, but it does not clearly define who those individuals are.

I draw members’ attention to the fact that section 12B of the Protection of Badgers Act 1992 states that, if a director knows anything about an offence made by their corporate body, or has demonstrated neglect resulting in an offence, they, too, can be prosecuted.

It is also important to remember that it is already an offence for someone to knowingly cause or permit to be done some of the offences that are covered by amendments 36, 37, 39, 40 and 1. That means that, should an employer or land manager instruct an employee to commit one of those offences, they would be liable for that offence.

In summary, I have looked at the situation very carefully. Amendment 39 was lodged to extend the existing vicarious liability provisions under the Wildlife and Countryside Act 1981 to certain offences involving traps and snares. However, I have serious concerns about the remaining amendments in the group, which is why I will not support them.

Photo of Claudia Beamish Claudia Beamish Labour

I will press amendment 36.

I am very pleased that, after discussion with the minister and having worked with others, including Mark Ruskell, on vicarious liability, the Scottish Government will accept amendment 39. Illegal traps and snares are completely unacceptable. It is very unlikely that they will be used, but there will now be an absolute deterrent to prevent their use.

I do not agree with Finlay Carson that, because there is training on the setting of legal snares, that has an impact on whether a person is going to be ruthless and callous enough to use an illegal snare. I am therefore very pleased that vicarious liability has been moved forward by the Scottish Government, and I hope that other parties will support amendment 39.

It is very important that we have robust vicarious liability arrangements for a wider range of offences and that they become serious offences. The amendments in the group are proportionate, and there is a clear defence at the disposal of land managers and owners.

I refer to Edward Mountain’s comments. I am absolutely clear that there is a defence if someone genuinely does not know that they are doing something wrong, and that that relates to things such as badgers extending their colonies in the spring, which Edward Mountain highlighted.

The liability is limited, and it is important that we are able to take the matter forward. I ask for support across the chamber to make offences serious for the few who may commit them.

The Presiding Officer:

The question is, that amendment 36 be agreed to. Are we agreed?

Members:

No.

Division number 3 Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill: Stage 3

Aye: 21 MSPs

No: 59 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 21, Against 59, Abstentions 0.

Amendment 36 disagreed to.

Amendment 37 moved—[Claudia Beamish].

The question is, that amendment 37 be agreed to. Are we agreed?

Members:

No.

Division number 4 Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill: Stage 3

Aye: 21 MSPs

No: 59 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 21, Against 59, Abstentions 0.

Amendment 37 disagreed to.

Amendment 38 moved—[Claudia Beamish].

The question is, that amendment 38 be agreed to. Are we agreed?

Members:

No.

Division number 5 Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill: Stage 3

Aye: 21 MSPs

No: 59 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 21, Against 59, Abstentions 0.

Amendment 38 disagreed to.

Amendment 39 moved—[Claudia Beamish].

The question is, that amendment 39 be agreed to. Are we agreed?

Members:

No.

Division number 6 Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill: Stage 3

Aye: 61 MSPs

No: 19 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 61, Against 19, Abstentions 0.

Amendment 39 agreed to.

Amendment 40 moved—[Claudia Beamish].

The question is, that amendment 40 be agreed to. Are we agreed?

Members:

No.

Division number 7 Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill: Stage 3

Aye: 21 MSPs

No: 59 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 21, Against 59, Abstentions 0.

Amendment 40 disagreed to.

Group 5 is on penalties for offences under the Wildlife and Countryside Act 1981. Amendment 41, in the name of Angus MacDonald, is grouped with amendments 42 to 44, 14, 45 to 48 and 27.

Photo of Angus MacDonald Angus MacDonald Scottish National Party

We all know that egg collecting continues to pose a threat to our rare bird species. There has been progress in stamping out that inexcusable and damaging practice in recent years through targeted police campaigns such as operation Easter, but there have been significant cases involving wild birds’ eggs in Scotland and elsewhere in the United Kingdom.

Clutches of eggs that are laid by rarer birds are the main targets of egg thieves, who are known to travel the length and breadth of the country to steal eggs for their collections. They think nothing of robbing of their eggs birds including golden eagles, black throated divers and dotterels, which they do in full knowledge that their actions invariably eliminate any breeding opportunity for the birds that year. Many bird species are becoming less common for a number of ecological and environmental reasons, so they can well do without the added pressure of egg thieves.

To allow the offence of possession, sale and transport of wild birds’ eggs to be triable either way, and therefore to warrant a maximum penalty of five years and/or an unlimited fine on conviction on indictment, has the potential to help to address such offending by strengthening the sanction for the worst crimes. It would also provide consistency in the approach to treatment of offences involving birds’ eggs throughout the bill and would, importantly, demonstrate how serious the Scottish Government considers the offences to be.

In short, we need a stronger deterrent. I urge members to support the amendments in the group.

I move amendment 41.

Photo of Claudia Beamish Claudia Beamish Labour

My amendments in the group seek to increase the penalties for wildlife crimes that are involve the nesting, resting and lekking places of protected wild birds and animals. I have found out that lekking places are where birds do their lovely mating dances.

The existing proposals do not sufficiently reflect those crimes’ seriousness, nor do they deter criminal activity. As has been said, the offences affect our precious biodiversity, the loss of which makes Scotland so much poorer. I thank RSPB Scotland, the Scottish Wildlife Trust, Scottish Environment LINK and the Bat Conservation Trust for evidence for the amendments.

I have raised those concerns at all stages of the bill, from the stage 1 report which was produced with other committee members, to testing of amendments at stage 2. I believe that the amendments have been refined to address the Government’s concerns and I appreciate having been able to work on them with the minister.

Damage or destruction to resting places and breeding sites can have an outcome that is equivalent to direct harm to an animal, therefore intentionally or recklessly damaging or destroying such sites should carry the equivalent penalty. The unlimited fine is particularly vital, because there are cases in which offenders can benefit very well financially from not following the law, when development of land to provide alternative roosting places can have a greater cost than the existing fines.

We will also support Angus MacDonald’s amendments 42 and 44. I appreciate his having let us know more detail about them before today. Egg collecting, although it is rarer than it used to be and is certainly not at all socially acceptable, continues to pose a very real threat to our rare bird species in Scotland. The amendments would allow the offences of possession, sale and transport of wild birds’ eggs to be triable either way, depending on the seriousness of the crime. An unlimited fine, or conviction for five years on indictment, would certainly be a deterrent and has the potential to address such offending by strengthening the sanctions for the worst crimes. It would also allow consistency throughout the bill in respect of the approach to and treatment of offences that involve bird eggs.

I will end my remarks with a quote from the Poustie review. It said:

“We consider that it is appropriate to match the maximum penalties available in other areas of environmental law as certain wildlife crimes are as significant in conservation or animal welfare terms as the environmental impact of a water, air or waste pollution offence.”

Photo of Mairi Gougeon Mairi Gougeon Scottish National Party

It is customary for the Scottish Government to consider the effect of amendments that were accepted at stage 2—not least, in order to check whether any housekeeping is required.

That is really the purpose of amendments 14 and 27. They seek to correct section 21 of the Wildlife and Countryside Act 1981—which provides the penalties for the offences within that act—by removing duplication of references to offences.

Amendment 14 will repeal section 21(4ZZA) of the 1981 act, because the penalties for the offences that are listed in that section are already provided for in section 21(4C).

Amendment 27 will simply remove the specific reference to section 15A(2A) from section 21 of the 1981 act, because section 21 already provides penalties for the whole of section 15A. The specific reference to section 15A(2A) is therefore unnecessary.

I hope that those technical amendments will prove to be uncontroversial and that members will support them.

I thank Angus MacDonald for lodging his amendments. As he said, there are still individuals who believe that collecting and trading rare bird eggs are acceptable activities. I am absolutely clear that they are not. Although such offences are less common than they once were—thankfully—they still pose a serious threat to endangered bird species, so I am happy to support the amendments.

When Claudia Beamish lodged her amendments at stage 2, I said that I would like some time to consider their consequences further. I appreciate her having given me that time. Having considered all the evidence that was heard throughout the bill process, and having taken soundings from Government officials in justice and in animal welfare and from the Cabinet Secretary for Justice, I am happy to support Claudia Beamish’s amendments.

The destruction of nests and habitats can have a serious impact on the welfare and conservation status of wild birds. The penalties that are proposed will provide the Crown Office and Procurator Fiscal Service and the courts with the necessary flexibility to deal appropriately with the crimes. I will support all the amendments in the group, and hope that all members will do so.

Photo of Liam McArthur Liam McArthur Liberal Democrat

I simply want to add my thanks to Angus MacDonald and, in particular, to Claudia Beamish for their amendments. As I have said previously, at the heart of the bill is the need to toughen up penalties for wildlife crime and animal cruelty by increasing the maximum penalties for offences related to disturbing, destroying or damaging bird and animal nests and shelters. Claudia Beamish is helping to ensure that that happens, so Scottish Liberal Democrats will be happy to support all the amendments in the group.

Photo of Finlay Carson Finlay Carson Conservative

Given that all the amendments in the group are related to the main principle of the bill, which is to increase the penalties that are associated with animal welfare offences, we will support the amendments.

The Presiding Officer:

That was admirably brief. I call Angus MacDonald to wind up and to say whether he wishes to press or to seek to withdraw amendment 41.

Photo of Angus MacDonald Angus MacDonald Scottish National Party

I have nothing to add, Presiding Officer. I am happy to press amendment 41.

Amendment 41 agreed to.

Amendment 42 moved—[Claudia Beamish]—and agreed to.

Amendment 43 moved—[Angus MacDonald]—and agreed to.

Amendment 44 moved—[Claudia Beamish]—and agreed to.

Amendment 14 moved—[Mairi Gougeon]—and agreed to.

Amendment 45 moved—[Claudia Beamish]—and agreed to.

Amendment 46 moved—[Angus MacDonald]—and agreed to.

Amendments 47 and 48 moved—[Claudia Beamish]—and agreed to.

Amendment 27 moved—[Mairi Gougeon]—and agreed to.

The Presiding Officer:

Group 6 is on penalties for offences under the Food and Environment Protection Act 1985. Amendment 28, in the name of Claudia Beamish, is the only amendment in the group. I call Claudia Beamish to speak to and move amendment 28.

Photo of Claudia Beamish Claudia Beamish Labour

Amendment 28 is about increasing the penalties for offences involving illegal pesticides. Members might recall that, at stage 2, I received cross-party support for increasing penalties for possession, and for causing possession, of illegal pesticides.

Amendment 28 seeks to extend that to include the sale of said illegal pesticides. Illegal pesticides can be untested and are potentially very dangerous to human health and the environment. I hope that members across the chamber will agree that the bill must do all that it can to resolutely deter illegal pesticide use, so that it might never be a problem in Scotland again.

I move amendment 28.

Photo of Mairi Gougeon Mairi Gougeon Scottish National Party

Although I understand the motivation behind Claudia Beamish’s amendment 28, for a number of reasons I cannot support it.

First, amendment 28 has a number of technical issues; I am concerned that the amendment as drafted is fundamentally flawed. The intention behind it appears to be to increase penalties for offences relating to prohibitions on importation, sale and supply of pesticides. However, the amendment fails to identify properly the power in section 16 of the

Food and Environment Protection Act 1985 under which such prohibitions are made and under which, for that matter, the offences arise.

Because of how the amendment has been drafted, it is doubtful that the increased penalties that it mentions will apply to offences under the 1985 act.

Secondly, the provisions that amendment 28 seeks to change have largely been overtaken by EU legislation, which provides for rigorous and effective pesticide regimes in Scotland.

Finally, the bill is an animal and wildlife bill, the purpose of which is to enhance the protection that is afforded to domestic, wild and farmed animals. However, amendment 28 would take the bill into areas that go far wider than animal welfare considerations. My view is that the bill is simply not the appropriate place to make changes that relate to more general pesticides regulation offences.

Given all that, I ask Claudia Beamish to seek to withdraw amendment 28.

Photo of Finlay Carson Finlay Carson Conservative

On first reading amendment 28 we were minded to agree to it, because we certainly do not condone ownership of pesticides when there is no legitimate reason to have them. Anybody who is in such possession of them should face the full brunt of the law, so we would have supported the increased penalties for those offences. However, given the comments of the minister on the technical issues that arise from the amendment, we will not support it.

The Presiding Officer:

I call Claudia Beamish to wind up, and to press or to seek to withdraw amendment 28.

Photo of Claudia Beamish Claudia Beamish Labour

Although it is at a late stage, I will seek to withdraw amendment 28. However, I put on the record that sale and importation of illegal pesticides have, across the EU, become very serious issues that I hope will be addressed in other ways.

I appreciate what the minister said about amendment 28 being too wide. I could perhaps have had further discussion with her in the interim. However, it built on a previous amendment that was agreed to on a cross-party basis. I highlight that there are criminal gangs that import illegal pesticides and sell them on the black market across Europe, which is a very serious issue that we need to address together.

Amendment 28, by agreement, withdrawn.

Section 6—Protection of Badgers Act 1992: penalties for offences:

Amendment 1 moved—[Mark Ruskell].

The Presiding Officer:

The question is, that amendment 1 be agreed to. Are we agreed?

Members:

No.

Division number 8 Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill: Stage 3

Aye: 20 MSPs

No: 57 MSPs

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 20, Against 57, Abstentions 0.

Amendment 1 disagreed to.

Group 7 is on the Protection of Badgers Act 1992: penalties for offences et cetera.

Amendment 49, in the name of Colin Smyth, is grouped with amendments 50 to 52.

Photo of Colin Smyth Colin Smyth Labour

Amendments 49 to 51, in my name, seek to increase the maximum penalties for interfering with or damaging a badger sett, to bring them into line with the proposed new penalties for harming a badger directly. Destroying a badger sett can cause at least as much damage as killing a badger directly—and often can cause more harm, for example by causing elongated suffering and a more drawn-out and painful death, or by harming entire groups of badgers and risking their local extinction.

Although the bill rightly increases the maximum penalties for offences against badgers, it does not do the same for crimes that involve setts. That creates a loophole that would allow people to kill an entire group of badgers in a cruel and inhumane way by damaging their setts with less severe consequences than for killing an individual badger. There is no reason for damaging a badger sett, other than to harm the animals; that needs to be reflected in the penalties.

Having raised the issue previously, I welcomed the minister’s acknowledgement at stage 2 of my concerns and of the merit of my intended amendments, and I thank her for agreeing to work with me to bring them back at stage 3.

Amendment 49 will give effect to the intended purpose by repealing from the current legislative provisions the circumstances that allow for lower penalties to be applied. Amendment 50 will then repeal those penalties, and amendment 51 will apply the higher penalties to the whole of the thus-amended section 12 of the Protection of Badgers Act 1992. Increasing the maximum penalties for such crimes, and bringing them into line with the penalties for offences against the animals, will send a clear message that disrupting a badger sett is a serious wildlife offence. I hope that members agree and will support my amendment.

Amendment 52 raises a separate issue and is therefore set out as a stand-alone amendment. However, it is on a related matter: the definition of a badger sett. It is important that the penalties for disrupting a badger sett are set correctly. Equally, the laws must be effective. One potential limitation of the legislation, which has been raised with me by Scottish Badgers, is in its definition of a badger sett. Currently, badger setts are defined as

“any structure or place which displays signs indicating current use by a badger”.

There is a case to be made that the requirement for a sett to be in current use may be too narrow. As badger setts are typically used on a rotational basis, it is possible to do harm to the welfare and health of badgers by damaging a sett that is not currently in use.

I am mindful that changing a legal definition is a significant step and is not to be undertaken lightly or without proper thought and consultation. I had an amendment drafted that would have set a new definition, and I raised the issue directly with the minister. However, in light of her comments and request to be able to consider the matter in more detail, I have not lodged that amendment, and I do not seek to change the definition at this time. Instead, my modest amendment 52 calls for a review of the issue. That would provide an opportunity to look more closely at the matter and to consider carefully what changes could be made to the wording of the definition, so as to ensure that the legislation is as effective as possible.

A great deal of work has been carried out on the issue, and there is already a wealth of views to be considered. I hope therefore that the Government will carry out that work, and that Parliament will support my modest amendment 52, thus enshrining in legislation the need for that work, which would complement amendments 49 to 51.

I move amendment 49.

Photo of Liam McArthur Liam McArthur Liberal Democrat

I place on record my gratitude to Colin Smyth for his amendments on the further protection of badger setts, which, as he rightly points out, would bring those penalties into line with those that are already in place in respect of harming badgers directly.

The descriptions that we have seen of the suffocation that can occur through a sett being tampered with are horrific and they absolutely justify the approach that Colin Smyth takes in his amendments, which the Scottish Liberal Democrats will support, with the exception of amendment 52.

Photo of Finlay Carson Finlay Carson Conservative

Notwithstanding our previous comments about the concern about a sizeable or growing level of badger persecution or our understanding that it is limited to certain poachers and baiters rather than being widespread, I welcome the amendments that Colin Smyth has lodged to bring the penalties into line with those that the bill sets out in relation to other animals. We will support his amendments in the group.

Photo of Mairi Gougeon Mairi Gougeon Scottish National Party

Amendments 49 to 52 cover offences relating to the disturbance of badger setts. As I said when I addressed the issue at stage 2, I appreciate the impact that offences involving the disturbance of habitats and resting places, including badger setts, can have on our wildlife. That is why I proposed at the outset of consideration of the bill to increase the maximum penalty for those offences to 12 months’ imprisonment and/or a £40,000 fine.

However, I have listened closely to the concerns that Colin Smyth and others raised at stage 2, which is why I am happy to support amendments 49 to 51, which will increase the maximum penalties for disturbance and destruction of badger setts to five years’ imprisonment, an unlimited fine or both when tried by solemn procedure, in line with the penalties for the other most serious offences against our animals.

The subject of amendment 52 has not previously been raised as an issue and it was not considered at stages 1 or 2. I have had a conversation with Colin Smyth about that. The bill seeks to increase the penalties for existing wildlife offences and does not create any new wildlife offences, nor does it change the definition of offences. As the proposal has come so late in the bill process, we have not had an opportunity to consult on it or to take detailed evidence on it from stakeholders. Because of that, I am not aware of evidence that would suggest that the proposed change is necessary.

Before committing to undertake such a review, I would therefore like to take some time to consider the matter further. To that end, I intend to write to the legislation sub-committee of the partnership for action against wildlife crime Scotland and the Scottish animal welfare commission to seek their views on the matter. I ask Colin Smyth, if he is content with that, not move to amendment 52. I assure him that I will give further careful consideration to a review once I have had an opportunity to explore the matter in more detail.

The Presiding Officer:

I call Colin Smyth to wind up on the group and press or withdraw amendment 49.

Photo of Colin Smyth Colin Smyth Labour

I thank the minister and members for their support for my proposal to bring the penalties for offences against badger setts into line with those for offences against the animal.

I welcome the minister’s willingness to look again at the definition of a badger sett and consider whether any changes are needed. I note that that commitment is on the record and, on that basis, I will not move amendment 52.

I and many organisations such as Scottish Badgers, which has done some outstanding work to promote the study, conservation and protection of Scotland’s badgers, look forward to working with the minister on the issue in order to ensure that we have a definition of a badger sett to complement the changes to the penalties.

I press amendment 49.

Amendment 49 agreed to.

Amendments 50 and 51 moved—[Colin Smyth]—and agreed to.

Amendment 52 not moved.

Section 9—Wild Mammals (Protection) Act 1996: penalties for offences:

Amendment 53 moved—[Claudia Beamish].

The Presiding Officer:

The question is, that amendment 53 be agreed to. Are we agreed?

Members:

No.

Division number 9 Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill: Stage 3

Aye: 21 MSPs

No: 58 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 21, Against 58, Abstentions 0.

Amendment 53 disagreed to.

Amendment 54 not moved.

Group 8 is on conservation and protection of marine life. Amendment 29, in the name of the minister, is grouped with amendments 29A, 55, 55A, 55B, 61 and 31. I remind members to refer to the supplementary marshalled list for amendments 55A and 55B.

Photo of Mairi Gougeon Mairi Gougeon Scottish National Party

The principal purpose of amendment 29 is to enhance the conservation and welfare of seals by removing specific grounds on which the Scottish ministers may grant licences for the killing or taking of seals.

The Marine (Scotland) Act 2010 allows the Scottish ministers to grant licences that authorise the killing or taking of seals to protect the health and welfare of farmed fish and to prevent serious damage to fisheries or fish farms. The amendments in my name in this group will stop those provisions by removing paragraphs (f) and (g) of section 110(1) of the 2010 act and making related consequential provisions.

Other grounds on which licences may be granted, including for the purposes of scientific research, preserving public health and safety and the conservation of seals and other wild animals, are being retained.

Amendment 29 will also increase the penalties associated with the offence of killing, injuring or taking a live seal intentionally or recklessly, in line with other serious wildlife offences. That is appropriate and proportionate to our approach elsewhere in the bill.

Amendment 29 aligns with measures that are taken in other countries, including the provisions of the United States Marine Mammal Protection Act. It will ensure that we can still export farmed fish to the United States of America in future. That is one of our most important markets; it was worth £178 million in 2019.

Amendment 29, therefore, addresses welfare, conservation and economic concerns. I hope that members will support it.

Amendment 31 will make a consequential change to the bill’s long title, which will be needed if amendment 29 is agreed to.

I turn to amendment 29A, in the name of Mark Ruskell. I have set out my reasons for making changes to the 2010 act that will represent a significant step forward in ensuring the welfare and conservation of our seals. I am aware of some members’ concerns about the use of acoustic deterrent devices, principally in the aquaculture sector. Amendment 29A, which would ban the use of acoustic deterrent devices, is not acceptable, because such a ban would have far-reaching consequences for a range of activities in our territorial waters.

Acoustic deterrent devices are regularly used in the marine renewables, oil and gas and coastal development sectors as a mitigation method to move marine mammals, including seals, dolphins, whales and porpoise, away from operations that could result in much more serious injury or harm to them. Furthermore, pingers—a type of ADD—are a mandatory requirement in some fisheries, to prevent the incidental capture of dolphins and porpoises in fishing gear. Therefore, banning the use of pingers would, in effect, ban the use of fishing gear in relation to which pingers are a legal obligation.

Although I absolutely want to do the best thing for Scotland’s wildlife, we must be mindful of the importance of marine sectors to the Scottish economy and the many livelihoods that those sectors support, particularly in our coastal communities.

Amendment 29A would expose marine mammals to a greater risk of being harmed by the operation of marine sectors—to put it simply, it is a blunt instrument to address a nuanced issue. For that reason, I cannot support amendment 29A and I encourage Mark Ruskell not to move it. The issue does not require amendment of the 2010 act.

I turn to amendment 55, in the name of Mark Ruskell, and amendments 55A and 55B, in my name. Amendment 55 raises the issue of the use of acoustic deterrent devices by the aquaculture sector, which I understand is a matter of particular concern to Mark Ruskell. The Scottish Government is undertaking a comprehensive programme of work on this matter, including a review of the current regulation and management of ADD use in this sector, and it is my view that that review should be completed before we determine what any next steps might be.

The Scottish Government is supporting scientific research that will establish the full extent of current ADD use across the Scottish finfish sector. Furthermore, that research will underpin the development of robust, science-based industry guidance and any regulatory reform that is deemed necessary in relation to the future use of ADDs.

I want to ensure that, where ADDs are used, they are properly regulated and deployed to have an effective deterrent effect while minimising any environmental impact and not unduly exposing marine wildlife to harm. I suspect that that is the motivation behind Mark Ruskell’s amendment.

There is already a significant body of work under way in this important area. In fact, there is so much work that I consider amendment 55 to be too narrow in scope to reflect it. For that reason, I have lodged amendments 55A and 55B, in order to broaden the focus.

It is important that the national and international context that we are operating in is recognised, and my amendments place on Scottish ministers a duty to report on that broad framework. Amendments 55A and 55B make the reporting requirement better reflect the breadth of work that is currently being undertaken by the Scottish Government, and I welcome the obligation to report the outcomes to Parliament. Therefore, I can support Mark Ruskell’s amendment 55, but only on the condition that amendments 55A and 55B are accepted.

On Claudia Beamish’s amendment 61, I must begin by reiterating that the bill seeks to ensure that there is a consistent approach to the most serious wildlife crimes on land and in our seas. If passed, the bill will greatly strengthen maximum penalties for offences against marine species such as killing dolphins, seals and basking sharks. Claudia Beamish’s amendment would apply the maximum penalties that are being extended under the bill to offences relating to marine protected areas that are designated under the Marine (Scotland) Act 2010.

Although I am committed to properly and sustainably supporting our marine environment, there are significant problems with that approach. First, I must begin by pointing out that this bill is concerned with increasing the penalties that are associated with the worst kinds of animal cruelty. Amendment 61, which pertains to marine protected areas, is, arguably, not in line with that, since it would apply to a range of activities that, in some circumstances, have little or no interaction with or effect on animals. Indeed, currently, it is possible to commit an offence under protected area legislation without harming animals or wildlife—that is the case in relation to offences under section 94 of the 2010 act. I do not think that it is right to use stage 3 of a bill that is centred on animal welfare to increase the maximum penalties for a set of offences that can be committed without any harm being caused to animals or wildlife.

Secondly, the amendment pertains only to the Marine (Scotland) Act 2010, to the exclusion of other types of protected areas on land and in our seas and of various pieces of legislation that underpin those important regimes. In that regard, if the amendment were accepted, it would create an inconsistent approach between different types of protected areas, which would be undesirable and, potentially, unfair to marine users. I hope that members will agree that singling out just one type of protected area at this late stage in the progress of this bill is not the right approach, especially as the bill is strictly designed to deal only with animals and wildlife.

Thirdly, we are already taking action to improve the monitoring of activity in MPAs and to ensure compliance with MPA management measures. We are rolling out remote electronic monitoring, and Scotland’s scallop fishing vessels have all voluntarily signed up to participate. It is anticipated that all vessels in Scotland’s scallop dredging sector will have those systems by April next year. I suggest that that will be a game changer in inshore fisheries management and in safeguarding marine protected areas. Taking action to prevent and deter illegal activity and offences will allow us to focus resources on taking enforcement action against the few who choose to break the law.

For the reasons that I have outlined, I cannot support the amendment, and I ask Claudia Beamish not to move it.

I move amendment 29.

Photo of Mr Mark Ruskell Mr Mark Ruskell Green

For many years, the Scottish Greens and campaigners have been calling for an end to the brutal and unjustified killing of seals. Today, therefore, we welcome that the minister has finally introduced a ban on the culling of seals, even if it comes at a late stage—stage 3 of this bill.

However, a ban on killing seals is only half of the action that is needed. The use of acoustic deterrent devices arguably also falls foul of both the US Marine Mammal Protection Act’s definition of harassment and of our obligation to protect seals, whales and dolphins from reckless disturbance under the habitats directive.

A rise in the use of ADDs could be a direct unintended consequence of the ban on killing seals. Do not be in any doubt about the damage that those devices can cause dolphins. They have been described as acoustic torture and have been shown to cause severe and widespread disturbance.

Why has the Scottish Government allowed a free-for-all in the use of ADDs on fish farms? According to one study, they could be polluting over 12,500 square km of our seas. Why are fish farms not required by Marine Scotland to apply for licences to use ADDs? Is that because Marine Scotland knows full well that applications would not pass the licensing tests because there are clear alternatives for fish farms to protect their stock by using tension nets and seal blinds, as is done in Shetland?

The Scottish Government’s goal to double the economic value of the aquaculture sector comes at an unacceptable cost to our environment, to the extent that even the chlorine-washed US Government believes that we are not protecting our marine wildlife properly.

That is why I am moving amendment 55 and seeking a ban on the use of ADDs specifically in the aquaculture sector. As is often the case in the absence of 100 per cent scientific certainty, we must make a judgment. Given what is at stake, by applying the precautionary principle and introducing a ban we can be confident that damage is not being done to marine mammals and that we are not falling foul of both US and European laws.

I expect that a ban on ADDs, particularly on conventional ones, will come soon. I have listened to the minister’s comments about scope, particularly in relation to pingers on fishing vessels. As a result of that, I will not move amendment 29A.

I hope that members will support my amendment 55, along with the manuscript amendments from the minister, which require a timely report to Parliament on ADD use, monitoring and the implications for licensing. I am aware that work is under way to understand the use of ADDs, but there are urgent considerations that should be brought directly to Parliament before the US deadline of March 2021.

Any changes to the licensing regime will need parliamentary time for approval. I suspect that we will still be staring at the need for a ban on the majority of ADDs to rid our seas of noise pollution in six months’ time.

Photo of Claudia Beamish Claudia Beamish Labour

Amendment 61 is an important one that deserves the support of Parliament. It applies a new maximum penalty for the few instances in which fisherpeople are convicted of contravening a marine conservation order or of committing offences relating to the protected features of nature conservation MPAs.

I drew the amendment narrowly. I hear what the minister says about other marine protected features, but I focused particularly and deliberately on marine protected areas.

As with the amendments dealing with vicarious liability, I am talking about the few vessels that operate illegally and with disregard for those invaluable habitats and species.

I stress the word “habitats” as well as “species” because what is right for the land is also right for our marine environment. Marl beds, kelp areas and other protected areas are invaluable habitats. They are as valuable as the creatures themselves. There can be damage to the sea, just as there can be on land to the badger setts and the nesting and resting places that Parliament has already agreed to protect. It is high time that our sea creatures and habitats had the same respect and protection as those on land. Damaging the marine environment is no less of a wildlife crime than the destruction of a hen harrier nest.

Illegal damage to marine protected areas can mean the loss of precious habitats that took decades to establish and threatens our iconic biodiversity. I understand that the minister says the bill is about wildlife, but all creatures exist within habitats.

The measures to which amendment 61 refers are not overly punitive. They relate to serious damage, and the provisions seek to ensure that those who inadvertently cause damage would not be disproportionately punished.

I understand that members may be concerned because I am raising the issue for the first time at stage 3, but the amendment is analogous to the Scottish Government’s amendment 29 on the conservation of seals.

Before stage 2, I genuinely thought about how I might say something about the marine environment. I missed a trick. I should have thought about introducing the marine protected area amendment at stage 2, which I agree would have given more opportunity for discussion, but I thought about doing so only after stage 2. However, I consider the case to be very strong.

It is clear that the penalties issued in response to fishing in closed areas are inadequate as a deterrent. There have been multiple reports of vessels operating illegally in sites. In November 2018, there was wide reporting of the illegal damage to Loch Gairloch by two vessels. In July 2019, that happened again a few miles north in Wester Ross MPA.

I thank Open Seas and the Sustainable Inshore Fisheries Trust for their support with amendment 61. Open Seas states that part of the reason for repeat offences is that illegality is treated as a fisheries offence and not as a wildlife offence. Part of the offence in the amendment includes the intentional killing or injuring of animals in a protected area. It is hardly a stretch to say that that is committing a wildlife crime.

The Government guidance for penalties states that the level of fixed penalty imposed will reflect any financial gain. Other factors that can be taken into account in determining the level of fixed penalty are whether the stock in question is identified by commissioners as a recovery stock and whether the person has received a fixed penalty for the same category of offence. That cannot be right. In addition to the value of the stock, it has to be about the effect on the habitat and on the wildlife.

I recognise that the Government may think that the issue can be tackled by the roll-out of the inshore vessel monitoring systems to the entire fleet, but progress on that has been slow, and it looks as though it will continue to be slow. In addition, Marine Scotland’s resources are stretched.

As the minister highlighted when talking about taking action in the round, the inshore fisheries bill has now been shelved. We do not know when it will come, especially given the situation with Covid.

In light of the climate and environment emergencies, it would be very disappointing if the Government does not support this important shift on marine wildlife crime. Higher penalties are a much-needed deterrent to keep MPAs thriving.

Scottish Labour will support amendment 29, on the conservation of seals. That issue came to the committee in 2018, and I am not sure why we had to wait. We are where we are, although I hope that it is not because of US demands that we are only now considering the amendment.

We had intended to abstain on Mark Ruskell’s amendment 29A, but I understand that he will not move it. We have concerns about dolphins and other cetaceans, but I have concerns about that amendment for a number of reasons. The Fisheries Management Scotland briefing highlights the concerns about seals predating on wild salmon in our rivers. The issue is not only about fish farms as the minister has highlighted; it is also about wind farms and other installations.

In that context, it makes sense to support Mark Ruskell’s amendment 55, which seeks to place an obligation on the Government to report by March 2021, which is in only 10 months or so. We should really tackle the issue, and look at whether we should be banning acoustic deterrent devices altogether or at how we should otherwise progress matters. The issue is unresolved, and it needs to be tackled quickly.

We will also support amendments 55A and 55B, in the name of the minister.

Photo of Finlay Carson Finlay Carson Conservative

We welcome the proposed changes regarding ADDs, but we are concerned about how late the Government has lodged its amendments regarding the shooting of seals, given that the issue was raised in committee at stage 2, as Claudia Beamish mentioned. The research work was first looked at way back in 2018, so bringing the issue to the chamber so late is not really acceptable and gives us little chance to look at the consequences of removing the ability to control seals in that way.

The use of ADDs is important, but there are lots of elements that we need to look at in that regard, too. The use of ADDs by the Scottish aquaculture industry is pretty much unregulated and largely unrecorded and undocumented. We are concerned about the effect that the devices will have on porpoises, which we have heard about, as they are sensitive to underwater noises, and their effects on a range of other animals including whales and dolphins. We should have been looking at that issue at stage 2 rather than lodging amendments at this stage.

If we ban the use of ADDs altogether, that will have a potential impact on the protection from seal predation of wild Atlantic salmon and sea trout populations in our famed rivers. The amendment on shooting seals would have a huge effect on that. We need to keep some sort of deterrence in our rivers to protect our salmon and trout, so I welcome the fact that we will do more work on that issue, and I hope that the amendments will address those concerns.

Again, we are a bit concerned that Claudia Beamish’s amendment 61 was lodged at stage 3.

Photo of Andy Wightman Andy Wightman Green

On a number of occasions, Finlay Carson has mentioned amendments being lodged at stage 3. Oliver Mundell lodged amendments at stage 3 of the Children (Equal Protection from Assault) (Scotland) Bill; Liam Kerr lodged many amendments at stage 3 of the Management of Offenders (Scotland) Bill; and Dean Lockhart, Annie Wells and Graham Simpson lodged amendments at stage 3 of the Transport (Scotland) Bill. Is Finlay Carson saying that Conservatives have never lodged amendments at stage 3 that have not been debated at stage 2?

Photo of Finlay Carson Finlay Carson Conservative

I am quite taken aback. Andy Wightman is probably getting in a strike first because he understands the displeasure across the chamber at some of the amendments that the Greens have lodged at this late stage. There has been no discussion about the amendments that the Greens have lodged—none whatsoever. It is more about virtue signalling and grandstanding than about making good law.

However, I do not believe that that is the case in relation to the late lodging of amendment 61. Claudia Beamish did what she thought was right at stage 2. We have concerns, because we do not want to inadvertently and disproportionately penalise our fishermen, who might be seen to be committing offences without actually damaging any protected animals. The fishing industry is making progress with positioning technology, and that work should be allowed to continue. There will be a dramatic increase in the responsibilities of trawlers, and we do not want them to be unfairly punished with the burden of proof that currently lies with them.

We will not support amendment 61.

Photo of Edward Mountain Edward Mountain Conservative

Given that Mr Carson mentioned wild fish, I declare that I have an interest in a freshwater salmon farm, but that is not what I want to talk about.

The discussion about acoustic deterrents is interesting. The matter was brought up when the Rural Economy and Connectivity Committee did its aquaculture report. We took evidence on it, but it was unclear by the end of our inquiry how acoustic deterrents work. As a member of the REC Committee, I welcome amendments 55, 55A and 55B, because I think that they will shed light on and close one of the issues that the committee looked at.

I am also delighted that Mark Ruskell did not move amendment 29A. That is the right decision. My understanding is that acoustic deterrents have moved on considerably from where they were a few years ago, such that you can use detection methods to turn on an acoustic deterrent and use it to move an animal away only when it moves into a danger area. God forbid that some of the developments that we are carrying out in the Moray Firth, for example, should affect our dolphins—which we enjoy so much—within the inner Moray Firth. The use of an acoustic deterrent to drive them away while pile-driving work is carried out so that their hearing is not damaged seems to be a sensible solution. I thank Mr Ruskell for protecting the bottlenose dolphins that inhabit the inner Moray Firth—he has made the right decision.

Photo of Liam McArthur Liam McArthur Liberal Democrat

The shooting of seals is perhaps one of the most controversial issues—if not the most controversial issue—that I and my colleagues on the then Rural Affairs Committee had to deal with back in 2010, when we were considering the bill that became the Wildlife and Natural Environment (Scotland) Act 2011. At the time, we made progress in restricting the practice, but it felt as though we were on a journey that was far from complete, and so it has proved with the minister’s amendment 29 today, which the Scottish Liberal Democrats strongly support.

I was concerned to see Mark Ruskell’s amendment 29A. During the passage of the WANE act, those who were advocating a ban on the shooting of seals insisted that acoustic devices were perfectly adequate for protecting fish farms from seal attacks. As the minister has explained, and as Edward Mountain has just mentioned, their use is perhaps far more widespread than it was a decade ago, and I absolutely accept the point that there will be good acoustic devices as well as those that cause unnecessary harm, which we need to get rid of.

I welcome amendment 55 from Mark Ruskell and the Government’s amendments to that amendment, which will ensure that the regulation of these devices is fit for purpose, so that we can weed out devices that really have no business being used while still allowing the use of acoustic devices in appropriate circumstances by those in the aquaculture sector or in other sectors, if it is appropriate. I thank Mark Ruskell for lodging amendment 55 and for allowing us to make progress in an area that the current REC Committee has clearly been giving quite a bit of consideration to over the past couple of years.

The Presiding Officer:

I call the minister to wind up on the group and on amendment 29, in particular.

Photo of Mairi Gougeon Mairi Gougeon Scottish National Party

I am happy that the amendments have had broad support across the chamber.

I press amendment 29.

Amendment 29A not moved.

Amendment 29 agreed to.

Amendment 55 moved—[Mark Ruskell]—and agreed to.

Amendments 55A and 55B moved—[Mairi Gougeon]—and agreed to.

Amendment 55, as amended, agreed to.

Amendment 61 moved—[Claudia Beamish].

The Presiding Officer:

The question is, that amendment 61 be agreed to. Are we agreed?

Members:

No.

There will be a division.

Division number 10 Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill: Stage 3

Aye: 21 MSPs

No: 59 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 21, Against 59, Abstentions 0.

Amendment 61 disagreed to.

Group 9 is on programme requirements. Amendment 58, in the name of Claudia Beamish, is the only amendment in the group.

Photo of Claudia Beamish Claudia Beamish Labour

Amendment 58 seeks to keep the issue of programme requirements for empathy training on the agenda. When a person is convicted of an animal or wildlife offence and given a community payback order, it would enable the court to impose a programme, be it “restorative justice” or

“ a rehabilitation programme to develop empathy skills”.

I thank OneKind for its careful thought on amendment 58 and its commitment to continued work on the issue. Appropriate cases for those measures do not include the most serious cruelty cases, but alternative disposals could be valuable in preventing future offending and thereby helping to protect animals.

OneKind notes that the Scottish SPCA’s animal guardians programme for children and young people who are starting to display offending behaviour towards animals is well recognised, as is the considerable amount of training on developing empathy that is available for adults. That is all focused on human-to-human interactions, which I will not go into today; however, there are precedents for empathy training.

I hope that the chamber will see the value in amendment 58 but will also be reassured that it is not too prescriptive at this stage, where there is more room for research, as I have discussed with the minister. I welcome comment from the minister on her intentions for that policy area in the future. OneKind also proposes a Scottish Government-supported partnership to co-ordinate research into good practice in other countries and investigate the potential for a restorative justice clause as an option for sentencing in that field of animal welfare crime.

I move amendment 58.

Photo of Mr Mark Ruskell Mr Mark Ruskell Green

I support amendment 58; it is similar to amendments that I lodged at stage 2. We have been in constant discussion with the minister about empathy training; it is important that it is backed up in legislation today.

Every member in this chamber will find criminal offences against animals repulsive. That is partly because the victims have no voice; we rely on organisations such as the Scottish SPCA to represent them. However, it is also important that we understand the root causes of a lot of that criminal behaviour; some of it might come back to someone’s upbringing, with regard to whether they have been abused or bullied in their life. If we are rehabilitating offenders into society to be safe around animals, it is important that we proactively take the opportunities to do so. Many of those offenders who abuse animals might also extend that abuse to people, so it is important that we adopt that restorative justice agenda, roll out proper programmes of empathy training in Scotland and ensure that we can move forward.

Photo of Finlay Carson Finlay Carson Conservative

We support the use of a wide range of targeted, imaginative measures and payback orders and programmes such as the empathy courses, as referred to in amendment 58. There may be resource issues in that regard, but we believe that it would be worth while to look at, and invest in, such measures.

International research suggests that there is a complex association between animal abuse, child abuse, the abuse of vulnerable adults and so on. Violence and animal abuse are associated with a lack of empathy, so we should look at the amendment’s proposal to ensure that people who are on non-custodial sentences—community payback orders, for example—can get empathy training. In addition, the evidence shows that time in prison can result in a reduction in empathy, so that sort of training could go a long way towards ensuring that such offenders do not reoffend.

Photo of Christine Grahame Christine Grahame Scottish National Party

I rise in support of amendment 58. Some animal cruelty is deliberate, but the vast amount arises out of sheer ignorance. When people who are ignorant in the true sense of the word are causing animals unnecessary suffering, one wants to make them learn about what they are doing to the animal and why they should not do it. Another issue is that children watch their elders and repeat things that they see. We talk about the rehabilitation of offenders. Let us rehabilitate people—those whom we can rehabilitate—who are unnecessarily cruel to animals simply because they do not know the right thing to do at the right time with the right animal.

Photo of Mairi Gougeon Mairi Gougeon Scottish National Party

The proposal that Claudia Beamish describes was raised at stage 1 and thoroughly explored in the stage 2 debate. At that point, it was agreed that a similar amendment would not be pressed, as I said that I would commit to giving the matter greater consideration by looking at a non-legislative route.

The non-legislative approach to which I committed is exactly what I have been working on, and I am very pleased to announce today that I have approved a proposal for a Scottish Government-funded research project to gather evidence on how empathy training and related approaches have been used in other countries to rehabilitate offenders who have been involved in crime relating to animal welfare or wildlife. The research will consider available publications and involve discussions with the key stakeholders in Scotland on the feasibility of using or developing similar approaches here.

I expect that the research will be commissioned in the next few weeks, and that the project will run for around six months. The research project sits alongside the £300,000 that was invested in the delivery of the restorative justice action plan, which was published in June last year, and additional funding has been made available in the current financial year. It will complement the Scottish Government’s existing vision of having restorative justice services available across Scotland by 2023, with the interest of victims at their heart.

I am pleased to have the support of OneKind for the project, and I look forward to the research involving that organisation and other stakeholders such as the Scottish SPCA and criminal justice social workers. I am confident that the project will provide a more satisfactory basis on which to take forward any future development or provision of such courses in Scotland. I believe that that can be done collaboratively, with potential training for providers, if the research suggests that such an approach would be worthwhile.

I trust that it is clear that I share the interest of Claudia Beamish, and other members on all sides of the chamber, in this area, and I thank her for raising the subject initially. However, I believe that the non-legislative approach will be a much more productive way of moving forward in this important area. I also point out that Claudia Beamish’s amendment appears to have a fundamental flaw, in that it seeks to give courts a power that they already have. For all those reasons, I ask her to consider withdrawing her amendment.

The Presiding Officer:

I ask Claudia Beamish to wind up and to press or withdraw amendment 58.

Photo of Claudia Beamish Claudia Beamish Labour

I listened to what the minister said. It is quite difficult—I tried to frame an amendment that would have an enabling function so that if the research showed that such an approach would be possible, the legislation would already be in place to enable guidance to be provided. I do not know whether the minister is able to clarify why that approach is not acceptable.

Photo of Mairi Gougeon Mairi Gougeon Scottish National Party

The issue with amendment 58 is that it seeks to give the courts powers that they already have. If, as a result of the research project, we thought that a specific approach would work in Scotland and we were able to develop some sort of course, the courts would already have the ability to put people on those courses should they be found guilty of an offence.

We are trying to establish the groundwork for that; I have already committed to that and that is what we are looking to do. I ask the member if she would be happy to withdraw her amendment if she is content with the approach that we are taking.

Photo of Claudia Beamish Claudia Beamish Labour

That was a helpful intervention, for which I thank the minister. On the basis of better understanding where the Scottish Government is positioning itself in taking forward that research with a view to putting those possibilities into what already exists in relation to community payback orders, I am prepared to withdraw the amendment.

Amendment 58, by agreement, withdrawn.

The Presiding Officer:

Group 10 is on the review of requirements for additional offences. Amendment 59, in the name of Maurice Golden, is the only amendment in the group.

Photo of Maurice Golden Maurice Golden Conservative

Amendment 59 relates to the requirement to conduct a general review of the provisions of the act to ensure that it is sufficient to safeguard animal welfare and protect wildlife.

Animal welfare should never have an end point, but should be something that we constantly strive to improve. In particular, but not exclusively, such a review should be required to consider the inclusion of pet theft as a specific offence, as well as following up on previous statements in Parliament to act against wearable electric shock training aids for dogs. Both of those positions have received considerable support within and outwith the Parliament from organisations such as the Kennel Club, the Scottish SPCA, OneKind and the Dogs Trust, and a serious appraisal of both should be conducted.

I have listened to the feedback from stage 2 and I thank Labour and Claudia Beamish for their support at that stage. The questions facing the other parties are whether a pet should be treated as an inanimate object, such as a book, when a crime is committed; and whether it is acceptable to electrocute pets to train them.

Photo of Mr Mark Ruskell Mr Mark Ruskell Green

I back the member’s amendment, but does he agree that a fundamental problem with the bill is that its scope is far too narrow? It is difficult to get a lot of the issues that he and I want to see action on into the scope of the bill, to get proper scrutiny and get progress from the Government.

Photo of Maurice Golden Maurice Golden Conservative

I agree that the scope of the bill is very tight and therefore on those particular issues I have not been able to lodge amendments that I otherwise would have lodged. The amendment is the best that we could do within the confines of the bill and I hope that everyone in the chamber supports it, so that there will be an opportunity to test and strengthen the act.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

I look at the proposal for the specific offence of the theft of a pet. A peacock has been in our vicinity for the past 18 months. I do not own the peacock and I have failed to find out who does. If I take the peacock into my possession to address its welfare requirements, am I guilty of theft by finding?

Photo of Maurice Golden Maurice Golden Conservative

That would be a matter for the courts to determine—[

Laughter

.] I am sure that the member would give a strong account of himself were that to come into play.

I move amendment 59.

Photo of Christine Grahame Christine Grahame Scottish National Party

I feel like saying, “Welcome back, Stewart. Beam me up, Scotty.” I would like to see the case in court when the peacock is brought in as a piece of evidence and asked if it was complicit.

I appreciate that the Scottish Animal Welfare Commission has been set up, but I have great sympathy for the amendment for a couple of reasons. In law, a pet is a piece of property, but nobody who has a pet ever thinks that. The emotional heartache if it is stolen and the effect that there may be on the animal—as we now know, animals down to the lowest levels have sentience—makes the whole thing more horrific, but there are big bucks to be made from such offences. Animals can be targeted and people might not find them for years. I am sympathetic to the Government looking at that.

The second issue is electronic shock collars. I think that when Maurice Golden was first elected I was going on about those, because at a Scottish National Party conference many years ago they were giving us all electric shocks at one of the stalls—maybe it was a Conservative who had that stall—and they put a collar on my wrist, which I said would not be a problem. It was set at about level 3 out of 10 and it was really sore. That is when I became immediately converted to understanding that it is nonsense to apply shock collars to dogs, cats or any other animal. Anybody here who has any doubt about that should put a collar on any part of their body that they choose, and I bet that they will then be against electronic shock collars.

You do not train animals with pain; it does not succeed. Many years ago, I had a radio debate with a farmer who was in favour of the collars. He kept putting an electronic shock collar on his collie and he said that it was because the dog ran under the wheels of his tractor—in other words, he was looking out for it. I asked whether he had to keep shocking the dog and he replied that he had to do it again and again. What was the point? The animal was in pain, but it was not associating it with the wheels of the tractor; it might have been associating it with something else that was lying around. An animal does not know why it is being shocked.

I note the role of the Scottish Animal Welfare Commission.

I may or may not support the amendment, which asks ministers to report only in 2025. However, it is important to keep the issue on the agenda as we look more and more at the sentience of animals. I will see how it goes with the minister before I make up my mind. I should not say that; I have done enough breaking of the whip.

Photo of Claudia Beamish Claudia Beamish Labour

We supported the amendment at stage 2 and I think that it is appropriate, in view of the range of animal cruelty issues in Scotland that are very important and still need to be addressed, that Maurice Golden, in his stage 3 amendment, has moved the review period to five years. Labour is happy to support amendment 59.

Photo of Mairi Gougeon Mairi Gougeon Scottish National Party

Amendment 59 is similar to that which the member lodged at stage 2 and, although I note that the proposed timeline for the review has been amended, I still cannot support it for a number of reasons. Many of those are similar to the ones that I laid out at stage 2, but I will repeat them.

My reasons are not that I fundamentally disagree with the points that Maurice Golden and other members have made. I agree with Christine Grahame that it is important that the issues do not fall off the agenda, and it is absolutely not the intention that they do so.

The amendment raises the issues of pet theft and electronic training collars, which are matters of concern to members. I completely understand that, because those are matters of concern to me, too. However, the amendment is not necessary to ensure that those important matters are considered. Indeed, they are being looked at already and will be able to be pursued through the Scottish Animal Welfare Commission, which has now been established.

The Scottish Animal Welfare Commission will be able to consider a wide range of specific animal welfare issues concerning companion animals and wildlife, and provide independent, expert advice on how those should be prioritised and taken forward. Members will be aware that the regulations regarding the Scottish Animal Welfare Commission were recently accepted by the ECCLR Committee. I really am excited by the prospect of having—

Photo of Maurice Golden Maurice Golden Conservative

If the commission will cover the issues raised in the amendment, why would the minister choose not to support the amendment?

Photo of Mairi Gougeon Mairi Gougeon Scottish National Party

We are already addressing the issues through non-legislative means.

If the member will let me finish my points, I will further illustrate that.

The close and expert consideration of the issues that have been raised by Maurice Golden is exactly why the Scottish Animal Welfare Commission was established, and I think that we need to allow it to do that work.

I reassure members that many of the important improvements in the bill have been developed through close and cooperative working relationships with those who would be on the front line of enforcing the legislation, and through on-going consideration of the operation of their powers. I have absolutely no doubt that that will continue.

I assure Maurice Golden that work on the issues is very much under way and will be taken forward. There is no intention that they will fall off the agenda, because they are vital. I ask that he considers withdrawing his amendment because I believe that the issues that he has raised do not require the amendment of primary legislation.

Photo of Maurice Golden Maurice Golden Conservative

I have listened to the minister’s arguments and I respect her passion for animal welfare.

However, there is a requirement to put the review in statute, because we have heard previously—not from the current minister but from the previous portfolio holder—that there would be a ban on electric shock collars, and that has not happened. Having a review in statute is the only way in which we can bind the current Government and the next one to review both that and other matters. I will press amendment 59.

The Presiding Officer:

The question is, that amendment 59 be agreed to. Are we agreed?

Members:

No.

Division number 11 Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill: Stage 3

Aye: 42 MSPs

No: 37 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

Abstained: 1 MSP

Abstaineds: A-Z by last name

The Presiding Officer:

The result of the division is: For 42, Against 37, Abstentions 1.

Amendment 59 agreed to.

Group 11 is on an information-sharing report. Amendment 60, in the name of Colin Smyth, is grouped with amendment 62.

Photo of Colin Smyth Colin Smyth Labour

Amendment 60 and its consequential amendment 62 would require ministers to produce a report on information sharing in relation to animal welfare and wildlife offences. A number of stakeholders have raised the issue during the bill process and have noted that the lack of information sharing on offences between relevant bodies and across geographical boundaries inhibits investigations and makes it difficult to track offenders and identify patterns of behaviour.

The issue was raised by the Environment, Climate Change and Land Reform Committee in its stage 1 report, which concluded:

“information-sharing on convictions ... may help track patterns of offending, including animal welfare and other forms of offending such as domestic abuse and criminal activity.”

The committee recommended that the Scottish Government

“set out proposals to establish a registration system or a means of effectively sharing information between authorities.”

At stage 2, I raised the issue through an amendment that called on the Scottish Government to bring forward guidance on the issue, in the hope that such guidance could have been used to underpin the creation of a more effective and better-integrated information-sharing system. I did not press that amendment, and I took on board the concerns that were raised at the time by the minister.

I have therefore suggested a different approach in my stage 3 amendments, which would simply require a report to be produced on the issue within five years of the proposed new section that amendment 60 would introduce coming into force. The report would set out what had been done and what steps the Government would take to take the matter forward. That would ensure that the issue is not forgotten again after the bill is passed, and it would provide an opportunity for more detailed work to be done to identify the existing problems and potential solutions.

The Scottish Government has indicated that work is on-going to address the issue and has provided reassurance that it expects to make progress in the coming years. My amendments would simply give that important work a statutory underpinning and would introduce a greater element of accountability and urgency.

No one underestimates the various challenges with issues such as data protection when it comes to information sharing but, to be clear, my amendment 60 does not in itself have data protection implications, as it would simply commit the Government to producing a report on what action it plans to take to ensure that information is shared better. I have no doubt that that report would highlight any issues and, if they could be overcome, how they would be overcome.

I move amendment 60.

Photo of Christine Grahame Christine Grahame Scottish National Party

I have sympathy for amendment 60, but I am not mad keen on reports on a five-yearly basis. There are lots of other ways of holding the Government to account, whichever Government it is. There are parliamentary questions and debates, and at any point committees can call ministers before them to look retrospectively at how a bill has been implemented. I do not think that the measure is necessary.

In fact, it is an out, because a report would have to be produced only every five years, and a lot can happen in five years, whereas legislation can be evaluated through other mechanisms in Parliament. That should be done more often, although the Public Audit and Post-legislative Scrutiny Committee is doing it. I would rather have that than bind any Government to producing a report every five years. There are better ways to achieve the aims, so I do not support amendment 60.

Photo of Finlay Carson Finlay Carson Conservative

We are minded to support Colin Smyth’s amendment 60. It is important that a system of information sharing is in place. From the early stages of the bill, we have supported the idea of a central register of penalties to allow the various enforcement authorities easy access to those details. We have seen issues with information about fixed-penalty notices being shared between local authorities, which highlighted the importance of information sharing. The issue will become even more important with the roll-out of additional fixed-penalty notices.

Photo of Mairi Gougeon Mairi Gougeon Scottish National Party

I say from the outset that I sympathise with the aims of amendment 60. The Scottish Government recognises the importance of improving information sharing and co-ordination between the various bodies that have an enforcement role in relation to animal health and welfare and wildlife. Those bodies include local authorities, the Animal and Plant Health Agency, Food Standards Scotland, the Scottish Society for Prevention of Cruelty to Animals and Police Scotland.

My officials are involved in on-going discussions with enforcement bodies on this very subject, and I have been informed that there are moves to standardise the databases that are used by local authorities and others, and to agree protocols for greater sharing of information between the various bodies that are involved in the wide range of animal health and welfare enforcement work. That includes many forms of information and intelligence; it is not limited simply to the outcomes of criminal cases, as described in amendment 60.

Although I support the amendment in principle, and I am undertaking much of the work already, my serious concerns about its drafting mean that I am unable to support it.

First, amendment 60 does not specify exactly what information about those who have relevant convictions should be shared; secondly, it is not clear who the information should be shared with; and, thirdly, it is not clear why such information is to be shared.

Photo of Claudia Beamish Claudia Beamish Labour

Surely one of the principal purposes of such an amendment is to give some legislative framework without being too detailed, because of the commitment to move forward without tying anyone’s hands.

Photo of Mairi Gougeon Mairi Gougeon Scottish National Party

We talked about that when we debated the vicarious liability amendments; in particular, we talked about how important definitions are in law. That is especially true when it comes to things such as information sharing. I will come on to talk about that in more detail.

Without the basic detail that I was just talking about, it is difficult to understand what steps Scottish ministers should report on and what steps they should take to further progress information sharing. Clarity of legal expression is of the utmost importance, and that is particularly true when we are dealing with the use of personal information.

That leads me on to my other major concern, which is about the sharing of information on criminal records. That could be regarded as interfering in matters that are properly for Police Scotland, which holds individuals’ criminal records, and it raises difficulties with data protection legislation. For example, we are required to ensure that any personal data that is shared will be processed lawfully, fairly and transparently, and collected for specified, explicit and legitimate purposes only.

We also need to consider human rights and whether any information sharing would comply with article 8 of the European convention on human rights, which concerns the sharing of information about the private lives of individuals.

Information sharing is a complex area, so it is important that we take the time to fully understand the issues and consult the relevant people.

Because work is on-going, because amendment 60 is exceptionally unclear and because of the serious legal implications that I have outlined, including those around human rights, the amendment is unworkable and I cannot support it. I am happy to repeat the offer that I made at stage 2 to have further discussions with Colin Smyth on how the aims, which we share, of improving information sharing and co-ordination between enforcement authorities in general can be progressed and achieved more effectively in ways that do not require a legislative approach. However, I say again that amendment 60 is neither workable nor necessary, and I ask Colin Smyth to withdraw it.

Photo of Colin Smyth Colin Smyth Labour

The lack of information sharing around animal welfare and wildlife offences is a significant issue, and the Environment, Climate Change and Land Reform Committee, along with many stakeholders over a long period of time, have agreed that it needs to be addressed.

I am mindful that the area is complex and that there is a range of technical and legal problems to avoid. However, it is for that reason that I did not pursue an amendment that could have any unintended consequences. What I have proposed in amendments 60 and 62 is more than a fair compromise: my proposal will ensure that the issue receives the attention that it needs and so far has not had, without dictating any specific changes.

Given that the minister has confirmed that the Government is working to make progress on the issue, there should be no problem in introducing some additional parliamentary oversight of that work through the delivery of a report to Parliament on the matter. Amendment 60 allows for a period of five years after the proposed new section comes into force for the report to be produced. However, that is at the later end of the scale, and I hope that we will see progress before then. The aim is to give ministers an opportunity to make progress on the issue before reporting on it and setting out future steps.

I struggle to see how that could cause legal problems or impinge on human rights. The legal complexity of the area—in particular, the challenges around data protection and instructing the legal system—is exactly why I have not attempted to legislate on the issue directly in the bill. Amendment 60 does not call for a specific course of action beyond the production of a report on existing systems and any proposed Government action, and it gives the Government a very generous five years to come up with that report.

Christine Grahame highlighted that there are other ways to pursue the issue in Parliament. However, as many stakeholders have consistently said, the reality is that those other routes have not yet delivered what we want. I will therefore press what is a very modest amendment. As Claudia Beamish highlighted, it has been deliberately left general, because it involves a number of issues. However, those issues should be addressed in a report to Parliament.

I press amendment 60.

The Presiding Officer:

The question is, that amendment 60 be agreed to. Are we agreed?

Members:

No.

Division number 12 Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill: Stage 3

Aye: 41 MSPs

No: 38 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 41, Against 38, Abstentions 0.

Amendment 60 agreed to.

Group 12 is on additional protection for certain wild animals. Amendment 30, in the name of Alison Johnstone, is grouped with amendments 56 and 56A. I remind members to refer to the second supplementary marshalled list for amendment 56A.

I call Alison Johnstone to move amendment 30 and to speak to all the amendments in the group.

Photo of Alison Johnstone Alison Johnstone Green

I declare an interest as deputy convener of the cross-party group on animal welfare.

In normal times, many of the more than 23,000 people who signed my petition calling for protection for Scotland’s mountain hares would have been with us in Parliament today. They would have rallied outside and they would be filling the seats of the public gallery. However, I know from the incredible volume of support that I have received for amendment 30—and as colleagues will also know from the vast amount of correspondence that they have received calling on them to support it—that people across Scotland are watching and listening to this debate. I thank each and every person who has written in support, and I also thank OneKind, the League Against Cruel Sports, RSPB Scotland and the Scottish Wildlife Trust for their support.

In 2016, I joined a mass rally of folk outside the Parliament building. Young and old, they came from across the country to rally outside because they felt compelled to act after they had learned about the indiscriminate and brutal slaughter of mountain hares in Scotland. They carried placards with photos of mountains of mountain hares dumped in the back of trucks—their once white fur bloodied, and their limbs mangled.

Having been invited by the organisers to speak at the rally, I committed to campaign until that slaughter ceased.

The Cabinet Secretary for the Environment, Climate Change and Land Reform also addressed the rally and said that she, too, would act—if she had sufficient evidence.

A year later, in 2017, OneKind had to challenge the granting of Government funds—public money—via VisitScotland to groups that promote recreational hare killing.

In March 2018,

OneKind, the League Against Cruel Sports and Lush released a video that is narrated by Chris Packham that exposes the shocking reality of Scotland’s mountain hare culls.

The video aired on national television. Sadly, it provided evidence aplenty. It showed an armed squad of quad bikers wearing balaclavas driving across the Cairngorms national park. What was their aim? Apparently, it was to shoot as many hares as they could. We saw hares suffering from injury and maiming limping off—one was caught by a dog in a drawn-out struggle. I asked the First Minister for her views on that obscene activity and she agreed that such slaughter is unacceptable.

It is now 17 June 2020. Since then, I have pushed on with my proposed protection and conservation bill to protect wild mammals in Scotland better. I consulted for 12 weeks between 12 June and 15 September 2019. My consultation specifically asked for consultees’ views on protection of mountain hares—my amendment 30 seeks to deliver protection for that iconic mammal—and almost 10,000 responses were received, 74 per cent of which were supportive. I have just checked, and more than 23,000 individuals have now explicitly supported the amendment. It is hard to think of an amendment to this or any other bill that has received such a mandate from the Scottish public.

Amendment 30 seeks to protect the iconic mountain hare and to preserve the species, which is in decline. A major academic paper that was published in August 2018 found that mountain hare populations on some grouse moors in the north-east Highlands had declined by 99 per cent since the 1950s. The authors concluded that

“intensification of game bird management has resulted in severe, recent declines in mountain hare numbers”.

In August 2019, the Scottish Government reported to the European Union that mountain hares’ conservation status is “unfavourable”. Hunting and intensive grouse moor management were identified as key drivers of that decline. We cannot continue to turn a blind eye to the ruthless and widespread persecution of this fabulous species. Voting for my amendment will end the killing and afford mountain hares the protection that they urgently need.

Photo of Finlay Carson Finlay Carson Conservative

I have a simple question. Can Alison Johnstone let Parliament know why she did not lodge her amendment at stage 2 so that the committee could have scrutinised it fully?

Photo of Alison Johnstone Alison Johnstone Green

Finlay Carson will be aware that I have engaged whole-heartedly with the democratic process. All the organisations that we would expect to have responded on my amendment have done so in my consultation, which lasted 12 weeks. I am entirely entitled to bring my amendment to the chamber at stage 3: Given that I have received probably thousands of items of correspondence, and that more than 23,000 people in Scotland have responded to a petition about an activity that is taking place in Parliament, I would say that democracy is being served.

In closing, I will speak to and support my colleague Mark Ruskell’s amendment 56, which seeks to protect beavers better. I urge colleagues to listen to the people of Scotland and to vote to protect Scotland’s mountain hares.

I move amendment 30.

The Presiding Officer:

Thank you. I call Mark Ruskell to speak to amendment 56 and the other amendments in the group.

Photo of Mr Mark Ruskell Mr Mark Ruskell Green

I offer my thanks, and pay tribute, to Alison Johnstone. Many of us in the chamber are species champions, but I have seen no one more determined and driven to protect her species than Alison Johnstone. That has come over very strongly in the preparation work that she has done for amendment 30 and her proposed member’s bill. Clearly, the lack of protection for the mountain hare is a bloodstain on Scotland’s uplands. We have to restore that species to conservation status of “favourable”.

In turning to my amendment 56 on beavers, I will sound a warning for the way ahead, because granting European protected species status is just the first step on the journey to full protection. Beavers typify how nature can help to tackle the climate emergency—they are a species that, in the right places, can slow water flows, create storage and restore habitats for other species. Those ecosystem engineers are the absolute keystone species for recovery of our river systems in an age of climate change.

We all voted for the beaver’s protected status last year, and for a licensing regime in which culling would be used as a last resort. However, in the past 12 months, I have seen rotting carcases in the fields around Strathearn and shot beavers floating out to the mouth of the River Tay. Of a population of about 500 animals, nearly a fifth have been killed in the past 12 months. That makes an absolute mockery of the protection that we are supposed to have given the beaver.

The cull figures, which were eventually prised out of the Scottish Government after they had sat for months in an unpublished SNH report, are disgraceful. The beaver should be restored to favourable conservation status, but that will be achieved only by extending both its population and its range in Scotland.

Land managers need to be part of the solution. They need financial support to manage beavers when that is possible, and to move them to other locations when it is not. However, at the moment, farmers and land managers cannot move beavers out of an area if there is a problem; their only option is to cull them. Sadly, there is no alternative.

The Scottish Government is restricting spread of beavers even though there are communities and landowners who would welcome them. I also invite Edward Mountain to walk with me so that, in our shared Balmorality, we might see some of the communities that I have mentioned. [

Laughter

.]

Until the beaver achieves favourable conservation status, this iconic but vulnerable species, which is struggling to return from extinction, absolutely should not be killed in Scotland.

My amendment 56 would ensure a ban on culling beavers. Manuscript amendment 56A would clarify that their translocation under licence would still be permitted. The minister shared with me her concern about that. I have reflected on that and have, accordingly, lodged the manuscript amendment. I am grateful to the Presiding Officer for allowing it to be considered by members this afternoon. I hope that it will give the Government the confidence now to back amendment 56.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

I will concentrate my remarks on amendment 30, which is in the name of Alison Johnstone.

The stage 3 process was designed to adjust draft legislation after the taking of evidence at stage 1, amendments being debated and voted on at stage 2, and evidence being taken at stage 2 if the lead committee so wishes. The final stage of the legislative process was intended to be the last chance to fine tune and adjust successful bills before they go for royal assent and pass into law.

In my view, entirely new subjects such as amendment 30 deals with, that have not been the subject of evidence sessions, should not be introduced at this last stage of the process. Unfortunately, amendment 30, in the name of Alison Johnstone, is just the sort of amendment that should never be introduced at this final stage of the process. Why is that? It is because if it were to be agreed to, we would very likely end up with bad law.

Alison Johnstone said that she has been campaigning on the subject since 2016. I congratulate her for that. However, she did not answer Finlay Carson when he asked her why she had not lodged amendment 30 at stage 2. It would have been quite appropriate for her to have done so, because the committee could have taken evidence on the issue and we would all have been properly informed about it.

As far as I am aware, all the evidence that has emerged over the years since I was first elected in 1999 means that, if this misguided amendment is agreed to, Alison Johnstone will have achieved exactly the opposite of what she wants to do. Amendment 30 will not protect hares on our—

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

I will, in a moment. I would prefer that Ms Johnstone listen to what I have to say, first.

Amendment 30 will not protect hares on our managed moors, because the evidence shows that our hares are more populous on such moorland than they are on unmanaged moorland. That might be counterintuitive, but if members were to read the evidence that has been sent to them by very many people—of whom Alex Hogg of the Scottish Gamekeepers Association, who has huge experience in the area, is just one—they would know it to be true. The Werritty report found that mountain hares benefit from moorland management—

Photo of Alison Johnstone Alison Johnstone Green

As Mr Rumbles will appreciate, I am entirely entitled to have lodged amendment 30 at this stage. It is notable, too, that he seems to have a concern only with that particular amendment.

I have read the submission from the

Scottish Gamekeepers Association, which is quite remarkable in how it completely disregards the evidence that in some parts of the north-east Highlands, the mountain hare population is at 1 per cent of what it was in the 1950s. Of course the hares thrive on grouse moors, where we have stink pits, snaring and people shooting every apex predator that exists. They might well thrive there—but only if they are not shot, in their thousands, in a misguided attempt to reduce transmission of a virus.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

I never said that Alison Johnstone was not entitled to lodge amendment 30, so I do not know why she defends herself on that point. What I said was that lodging it was unwise. [

Laughter

.] It is unwise; that is not how law should proceed in our system. We have a proper stage 1 process and a proper stage 2 process, and stage 3 is meant to be about fine tuning of bills through amendments that are based on evidence. However, amendment 30 is not about fine tuning.

I said that the Werritty report found that mountain hares benefit from moorland management. Other studies, conducted as recently as last year, have found that our managed moorland remains a stronghold for mountain hares and has the highest density of mountain hares in Europe.

The problem for amendment 30 is that studies from some areas, including Langholm, indicate that if the hare population explodes in the short term—which it will, if amendment 30 is passed—there will be an increase in disease and hares will die in large numbers. I do not want that to happen, and I do not want a rise in the number of ticks on our hills and in the incidence of Lyme disease. Those unintended consequences will be the result, if amendment 30 is passed.

Photo of Christine Grahame Christine Grahame Scottish National Party

I want to respond to the reference to the Werritty report, which recommended that shooting of mountain hares be subject to increased legal regulation and licensing, with improved evidence-based reporting of numbers. That is not a ban on culling hares; it is licensing of the practice. The introduction of licensing regulation would be in compliance with the Werritty report.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

Amendment 30 will not implement the Werritty report. There is no way that it would. I am afraid that, if Christine Grahame is pretending that it does, she is overegging the issue.

I believe—some members do not—in listening to the evidence on such matters. I do not believe in voting for amendments such as amendment 30, which is not based on science or on the available evidence. We have made too many bad laws by doing that, and I do not want to add another one. That is why I will vote against the amendment.

Photo of Brian Whittle Brian Whittle Conservative

Instinctively, I cannot imagine picking up a gun and shooting an animal. However, it is also true to say that I have never had to consider how to manage a farm—or any land—or the biodiversity on it. On such matters, I would always seek out expert advice.

The petition against the culling of mountain hares was brought before the Public Petitions Committee when I was a member of it, and we took extensive evidence on the matter from both sides. As ever, the evidence that was given by people on either side was weighted towards their own side. Nevertheless, the case for a ban on mountain hare culling was not convincing. That is not to say that the debate should not continue, because it should. However, as others have stated, the way in which the Greens have shoehorned the amendment into stage 3 of this bill is not the way to effect change. Where was this amendment at earlier stages, when we could have gathered evidence and had it scrutinised by the appropriate committee, which might have allowed for opinions to evolve?

Photo of Alison Johnstone Alison Johnstone Green

I thank Mr Whittle for pointing out that the issue has been discussed in Parliament, by the Public Petitions Committee and others. However, did he have the same concerns about other amendments that have been voted on this afternoon having been lodged at stage 3, or is this amendment the only one about which he has such concerns?

Photo of Brian Whittle Brian Whittle Conservative

Alison Johnstone will find that those other amendments concerned issues that had been discussed at previous stages. Amendment 30 has been shoehorned in—it has been thrown in as an afterthought in a way that, in truth, threatens the overall bill, which is a bill that contains some important provisions.

If the issue is so important, where were the Greens during the evidence sessions in the Public Petitions Committee? They would have had ample time to question witnesses and make their points. As has been said already, the Greens are opportunists and they are grandstanding, which does the good work of this bill no good whatsoever.

As is the case with nearly all of the petitions in this area that have come before the Public Petitions Committee, including the raptor persecution petition, it seems to me that the solution is to do with enforcing the law as it stands rather than with creating new law. That is what we should be considering: how we can better prosecute those who break the law, not how we can penalise those who lawfully work the land and maintain the countryside. I will vote against the amendment this afternoon.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

The one thing in this debate that we might all agree on is that we want a healthy and sustainable population of mountain hares. However, the process by which we get to that, if it is to be the one in amendment 30, causes me considerable concern.

I commend Alison Johnstone’s efforts on the issue and her support of the subject for some years. She referred to the completion of a consultation on 15 September last year. Curiously, that was a mere 15 days before the publication of the bill that is before us. To me, it would have seemed a sensible, rational way of progressing support for mountain hares to have brought that forward as part of the committee’s and Parliament’s consideration of the subject—[

Interruption

.]—Not yet; maybe later.

However, it is not only a question of the evidence in favour of supporting mountain hares as Alison Johnstone proposes; it is also a question of testing the counter-arguments that might refine the approach to supporting mountain hares. Those arguments have not had an opportunity to be put within the process that we are following today.

Photo of Alison Johnstone Alison Johnstone Green

I wonder at which point Mr Stevenson feels that the counter-arguments to amendment 29, on seal culling, which he voted for earlier today, were tested in that way?

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

It is not as though seal culling is a subject in which I have not previously been engaged. In 1968, when I was a water bailiff for the Tay Salmon Fisheries Board, it was an issue for me. It is not new, and I have made comments in Parliament on seal culling before.

The key point is this: why did the member not do what any sensible consideration of the interest of mountain hares would have led to and consider that, only 15 days after the completion of her consultation, a bill created the opportunity for the provisions in the amendment to be included in the process? She recognises that opportunity by bringing forth the amendment today, and that is the abuse of parliamentary process that is causing us a number of concerns.

That does not necessarily mean that I am turning my face away from the rights of mountain hares—I absolutely support those rights. However, in the future, it would be useful if the member and her colleagues were to use all the parliamentary opportunities there are to progress the point of view that she espouses so passionately. She has signally failed to do that in trying to put in the statute book as a protected species Lepus timidus. Translated from Latin, “timidus” has four meanings: timid, cowardly, apprehensive and without courage. Those words might be applied to the process that got us here.

Photo of Edward Mountain Edward Mountain Conservative

I apologise for being slightly long in my response, but I want to respond to both amendments. Before I do, I refer members to my interests in that I have a farm, although there are no blue hares on it, and I have an interest in a river, but there are no beavers on it. Maybe there will be one day.

I also come to Parliament having spent 40 years managing habitats across Scotland. I want to talk about farming before I move on to hares. Members will see the link.

When it comes to farming, farmers manage habitat to achieve the goals that they want to achieve. When it comes to the farm, we manage our soils: we make sure that there is not low fertility; we make sure that there is not bad structure, by ensuring that straw and manure are used; and we make sure that our soils are not too acidic. When it comes to grazing pressures, we make sure that the cows and sheep on the farm match the capability of the farm. For example, a field might support 40 cows for a summer but it could not support 35, because then the field would be undergrazed and the grass would go rank, which would adversely affect the output. It certainly could not support 41 cows, because then it would be overgrazed. The decision that is made has to match the habitat that we have.

Turning to moorland, that is exactly what we have to do. The problem is that we cannot—and rightly so, under good environmental practice—manipulate the soils, because we do not have them. We have peat, which comes in different forms: it could be narrow levels, deep peat, wet peat or boggy peat. We cannot manipulate that, nor should we seek to do so. We therefore have to manipulate the stuff that is on the peat, and there are two ways of doing that.

I will give an example of an area that I took on to manage some years ago. The low-ground calcareous grassland was bitterly overgrazed and unproductive. The heather ground in the middle was rank heather that had a peaty mass that prevented any growth. The upland was overgrazed, and the only way to manipulate it was to manage the mouths on the hill. We had to work out how we would stop the overgrazing.

The first thing that we did was take off 1,000 sheep, which went to market. We then took off 800 deer, because there were too many of them. When we come to our deer debate, later in the year, I will be interested in the proposals that are supported by many parties that would increase the length of the hind culling season. That would mean that hinds would be culled while they were carrying calves, which would have to be euthanised after the hind culling, because they would be viable. If I took cattle to market in that state, I would be prosecuted, and rightly so. Members should think carefully when we come to consider deer.

However, we had to manage the deer, so we removed them. We had to manage the hares, because they were overgrazing the upper high ground, so we removed 400 hares. The final component that had to be removed was the biggest of the lot—the rabbits, which had spread across all the calcareous grassland and were decimating it. Over time, we removed 10,000 rabbits from the low ground; many went to market, some could not. We kept the pressure up, and the moorland started to come back.

We also had to do one more thing: heather burning. Many people in the chamber frown at that. They say that it is not right and that it is used for only one purpose. However, we used heather burning to remove the mat. What was the point of doing all that? Some members may be thinking that it was all done for grouse shooting, but it was not. I am proud to say that I was part of a group that established 1,000 acres of native Caledonian pinewoods in the Cairngorms, with birch and aspen. It was a huge achievement, and it could not have been achieved without the culling that was required.

If members do not believe me, they can go to Creag Meagaidh to see what SNH has achieved with the trees that have been grown. It was done only by culling hares and deer as they moved in. Licensing is not that responsive. As the snow closes in and the hares are forced to the area of—[

Interruption

.] Does Gillian Martin want to make an intervention? I would be very happy if she would like to do so. If she does not, I am happy to continue.

The problem with licensing is that the snow forces the hares in and they need to be killed there and then to prevent damage to the trees, which can happen in days. I do not think that a ban on controlling hares is the right way forward. It would not protect Scotland. In my opinion—from 40 years’ experience—banning the control of hares would hasten their demise.

Presiding Officer, I am sorry to go on, but I will speak briefly about amendment 56 and beavers. You will remember—as everyone in the Parliament will remember—that a trial reintroduction of beavers was undertaken in Knapdale forest. It was done scientifically, to inform the Government’s position prior to a national conversation about the reintroduction of beavers across Scotland. Unfortunately, due to wildlife crime and the illegal reintroduction of beavers into Tayside, beavers spread out and jeopardised all the work of that trial. That was not helpful, and it was certainly not the way to deal with the reintroduction of species.

The beaver population in Tayside has naturally spread out. I will take Mark Ruskell up on his offer to go on a walk to see beavers any day. In the afternoon, he can walk with me and some farmers whose grade 4 arable land has been destroyed because beavers have blocked all the drainage pipes and no crops can be grown on it.

I, too, welcome the work that the Cabinet Secretary for Environment, Climate Change and Land Reform, Roseanna Cunningham, has done on the issue, and I welcome the management plan that she put in front of the Environment, Climate Change and Land Reform Committee, which I supported. I went along and listened, and the debate and the management plan were useful. The problem is that we do not know whether the plan is working. We need to give it time.

We need to ensure that the human translocation of beavers outside areas that they are already in does not happen. That is not helpful. Maybe beavers can spread out themselves, but humans have been picking up beavers and moving them to other areas.

Photo of Mr Mark Ruskell Mr Mark Ruskell Green

Does Edward Mountain accept that translocation that is done legally under licence is acceptable?

Photo of Edward Mountain Edward Mountain Conservative

That is a decision for the cabinet secretary to make under the management plan. Mark Ruskell suggests that no culling of beavers could take place. I have been involved in management across Scotland, and I know how much money the Government has pumped into trees and re-established riverine habitat. The Cabinet Secretary for Rural Economy and Tourism, Mr Ewing, has rightly pushed the reintroduction of trees and native species to create habitat. It would be a pity if they were all destroyed.

I cannot support an amendment that would prevent the removal of problem beavers.

I will give members an example in response to Mr Ruskell’s comment about beavers building dams and creating burns for water to be stored in the catchment. Imagine three baths in a row and one bath filling the next one every time that it fills. That is what happens when beavers dam a river. A series of dams will be full of water. The first thing that will happen when the rain comes along is that the water will come whooshing out over the top because there is nowhere else for it to go. That usually breaks the dam and causes a massive flood.

For those reasons alone, I cannot support the amendments on hares or beavers. I think that they would damage species that, in many ways, I have sought all my life to protect.

Photo of Claudia Beamish Claudia Beamish Labour

I want to speak in support of amendment 30.

The time has come to properly support and protect mountain hares. Scottish Labour is clearly and absolutely against the mass culling of that species. It is clear that that should be done only under licence where it is necessary and evidence has been presented. That is highly relevant to the future of the Scottish uplands, and especially in relation to some driven grouse moors.

I will not say any more about that, as time is moving on. We support Alison Johnstone.

We also support Mark Ruskell’s amendment 56. I listened to what Edward Mountain said but, with the possibility of translocation under licence, which Mark Ruskell highlighted in his manuscript amendment, there would be a properly managed process that would prevent the culling of a protected species. Taking that forward would have to be a matter of whether, under the European Union habitats directive, the beavers were in a favourable or an unfavourable condition.

The contribution that beavers can make is also important in relation to climate change issues.

Photo of Edward Mountain Edward Mountain Conservative

Under amendment 56, the culling of beavers could take place only if the beaver’s conservation status was favourable across all of Scotland. That means that, if there were no beavers in Deeside, there could be no culling of beavers in Tayside because the beaver did not have favourable conservation status. That is another significant flaw in amendment 56.

Photo of Claudia Beamish Claudia Beamish Labour

Perhaps Mark Ruskell will comment on that; I was about to finish. Beavers would be translocated only to places where it was appropriate for them to be—I hope that that is clear.

Scottish Labour will support all the amendments in the group.

Photo of Murdo Fraser Murdo Fraser Conservative

I will comment briefly on amendments 56 and 56A, from Mark Ruskell.

All members who represent the Tayside area will be familiar with the large, active and growing beaver population on the Tay, the Earn and the Isla. The population has grown from nothing to 500 over the past two decades or so.

We need to put this issue in context. This bill is about wildlife crime. The Tayside beavers exist only because of a wildlife crime: the illegal release into the wild of an animal that, at the time, was an alien species in Scotland. No one has ever been arrested or charged for that crime, far less prosecuted for or convicted of that crime. In the context of a bill about wildlife crime, that is an important starting point for the debate.

Having said that, I agree with a lot of what Mark Ruskell said. The beavers are generally a welcome addition to Scotland, in my view. They are good for biodiversity. They are popular with tourists. People like to see the beavers. However, the beavers are not an unqualified good thing. Not everyone loves them. As Edward Mountain said, they damage river banks, they undermine natural flood defences, they gnaw down trees and they are responsible for the flooding of low-lying, productive agricultural land in places such as the Strathmore valley.

Therefore, there is a conflict between conservationists and environmentalists, who are pro-beaver, and farmers, who think that beavers are a pain in the backside that causes them problems.

During the debate in the Parliament about what to do about the beavers, which went on for years, the farming lobby put forward a strong argument that because the beavers had been illegally introduced they should be eradicated and removed entirely.

In fairness, the Scottish Government worked hard to find a balanced solution, and in 2019 it came forward with a policy that was the result of a great deal of work and consultation, whereby the beaver would be not just tolerated but given protected species status. There was an important quid pro quo, which was that farmers and land managers would be given the right to control beavers in areas where they damaged agricultural land.

The problem that I have with Mark Ruskell’s amendments is that they would drive a coach and horses through that balanced and sensible approach, which the Scottish Government arrived at after a great deal of hard work, consultation, negotiation and discussion.

As Edward Mountain just pointed out, amendment 56 makes no sense at all. It talks about beavers having a “favourable conservation status”. We have a large and growing beaver population in Tayside, but there might not be beavers in other parts of Scotland. How will we assess the conservation status of beavers, if there are lots in Tayside but none elsewhere? Under amendment 56, no beavers could be removed from Tayside, because beavers do not exist elsewhere in Scotland.

Like other Green amendments, amendment 56 has been lodged at the last minute, at the final point in the parliamentary process. There has been no consultation and no engagement with stakeholders. The amendment has not been properly thought through—it is just a publicity stunt. I encourage members to reject amendments 56 and 56A.

Members should have no fear. The Tayside beavers will continue to thrive. Their numbers will continue to expand, as they have done over the past two decades. The population will grow. Mark Ruskell’s grandstanding is not needed to protect the Tayside beaver.

Photo of Liam McArthur Liam McArthur Liberal Democrat

As we have heard, there has been understandable disquiet about the Green Party parachuting in various amendments to the bill at stage 3 without any scrutiny at stages 1 or 2. That has become a hallmark of the Green Party playbook but, however well it might play with supporters, it shows a cavalier attitude to making good law, particularly in a Parliament without a revising chamber.

That said, I readily acknowledge the considerable amount of work that Alison Johnstone has put in over the years on mountain hares. She has argued her case with tenacity, seeking to convince members of the need for further action to protect the hare population in Scotland. As we have heard this evening, even those who disagree with her position at least recognise the commitment that she has shown to delivering change.

Scottish Liberal Democrats will support Alison Johnstone’s amendment 30, although we share some of the concerns that have been expressed not just about the process, which Stewart Stevenson and Mike Rumbles mentioned, but about the effect. In a situation where we still do not fully understand the effects of, for example, tick burden or population density, it is clear that more work will need to be done even in the event that, as seems likely, Parliament agrees to the amendment this evening.

It will also be important to ensure that the licence scheme that Christine Grahame mentioned in an intervention will still enable measures to be taken, where appropriate, to control disease or prevent serious damage to agricultural land, as Edward Mountain, Murdo Fraser and others rightly highlighted. However, I am confident that that work can be done, and on that basis I confirm our support for amendment 30.

The Presiding Officer:

As we are nearing the agreed time limit, I confirm that I am prepared to exercise my power under rule 9.8.4A to allow the debate on the group to continue beyond the limit in order to avoid the debate being unreasonably curtailed.

Photo of Liam Kerr Liam Kerr Conservative

I will be suitably brief.

I have a deep disquiet about the process behind amendment 30. Like many MSPs across the chamber, I made sure to read the huge number of representations that we received from those who are in favour of preventing mountain hare culls and those who are against it, so that I would be as informed as possible. I can see from those representations that, if the amendment is agreed to, the consequences could be huge. Those in favour say that that is to the good and that mountain hares will be protected. Those against say that it could be a disaster, as it would lead to a proliferation of ticks and Lyme disease and that, ironically, it could have a negative impact on the hare population.

Who is right? I do not know, and that is the problem. The banning of any practice, but particularly one that has been around for such a long time, needs very careful consideration and a forensic analysis of what is proposed, what the correct balance might be and what the wider implications will be. We have not had that.

During the Covid-19 crisis, there has rightly been much talk about pursuing evidence-led, science-based approaches, yet amendment 30 was lodged without the proposal being scrutinised by the relevant committee at stage 2. Presumably, the committee could have heard from expert witnesses, scrutinised the Werritty review, sought a Government response to it and taken advice from Scottish Natural Heritage. Instead, we will vote this evening in a unicameral Parliament that has dispensed with that key scrutiny stage. MSPs will decide whether to vote for or against the amendment based not on a committee’s interrogation of facts and expert scrutiny but on our pre-existing views and the hundreds of emails that we have all received, which take fundamentally opposing positions.

Will the amendment stop mountain hare culls? It will. Will there be a negative impact on hare health and numbers in the medium or long term? I do not know, but some who know a lot more about this than I do say that it will. Will it result in wider negative consequences and a massive increase in Lyme disease-bearing ticks? I do not know, but those who are involved professionally say that it will.

Just in case those people are right, and to ensure that the public have confidence in our system, I ask Alison Johnstone not to press her amendment but, instead, to bring the proposal forward separately, in its own right, to be scrutinised and debated. If she presses her amendment, I ask MSPs to vote against it. That is the way to ensure that there is proper scrutiny, to make good law and to protect mountain hares.

Photo of Christine Grahame Christine Grahame Scottish National Party

I will be brief because it is a late time of night.

I very much support Alison Johnstone’s amendment 30.

I support the spirit of Mark Ruskell’s amendment 56, but I want to hear what the Scottish Government has to say about the technicalities that I have heard Opposition members discuss. Again, however, it is a matter of licensing. The amendment on hares would not ban culling in its entirety but would require licensing to be observed. That needs to be made clear.

I have already quoted from the Werritty report. The Joint Nature Conservation Committee’s 2019 report to the European Union, covering the period from 2013 to 2018, categorised mountain hares in the UK as having an “unfavourable-inadequate” conservation status—the term “inadequate” referring to a lack of data.

All that comes in addition to the animal welfare concerns. Shooting hare is notoriously challenging, as they are small, fast-moving animals, and the shooting takes place in an environment where plenty of cover is available. That heightens the risk of injury, rather than clean kills. Furthermore, commercial hunts may involve hunters with little experience, adding to the risk. As shooting is not a licensed activity, there is no welfare monitoring or reporting, making it impossible to know the scale of the suffering. After shooting, many hares are not eaten and are dumped in stink pits, which I have talked about previously, as waste.

We are talking about a licensing regime, not an outright ban. That is what we must remember in this instance. I see no harm in a licensing regime where genuine containment and reduction in the hare population is required, but it should not just be a free-for-all, as seems to take place these days.

As for the beaver amendment, amendment 56, I wait to hear what Alison Johnstone and the Government say. There seem to be technical difficulties with it.

Photo of Mairi Gougeon Mairi Gougeon Scottish National Party

I have concerns about this process. I will not rehearse or go over all the arguments, as that has been done adequately by members across the chamber.

Amendment 29—the seal amendment—has been mentioned, and I accept Findlay Carson’s earlier criticism of me for that. The situation was not ideal, although we tried to get the information to the committee to give it a limited chance to scrutinise that as much as it could. Regrettably, that did not happen in this instance.

The Scottish Government has always maintained that large-scale culls of mountain hares are not acceptable if they threaten the hares’ conservation status. That is why we were the first country in the UK to introduce a closed season to protect both brown hares and mountain hares during the breeding season.

It is also why we commissioned the independent grouse moor management group, led by Professor Werritty, to examine the issue closely as part of its remit. The group examined the environmental impact of grouse moor management practices such as muirburn, the use of medicated grit and raptor persecution, and it advised on the option of licensing grouse-shooting businesses. Its members, who were experts in environmental research, environmental law, conservation and land management, spent a year taking evidence and visiting estates. I firmly believe that that consultative, evidence-based approach is the best one.

Although the Scottish Government is still to respond formally to the Werritty report, I can say that the report contains a number of important recommendations relating to mountain hares that I am mindful of today. However, I believe that it would have been better for members to wait until we had the response to that report in full before suggesting legislative changes, rather than lodging pre-emptive stage 3 amendments.

As members will be aware, I represent a rural constituency, and I completely understand and accept that, in a variety of circumstances, the control of hares as well as of other species is essential—for example, to protect new trees, manage grazing impacts and mitigate the spread of disease. I know that many people who undertake those activities care deeply about Scotland’s countryside and its maintenance.

However, I am also mindful of the concerns that have been shared by many—in particular, the concern that mountain hares currently have an unfavourable-inadequate conservation status, and the very real concern among some stakeholders and members of the public over the number of hares that are killed each year.

The mountain hare is a priority species for conservation action under the UK biodiversity action plan, and it is also on the Scottish biodiversity list. That means that it is considered to be of principal importance for biodiversity conservation.

On the numbers, I acknowledge the work that Scottish Natural Heritage, in conjunction with the Game and Wildlife Conservation Trust and those involved with land management, is undertaking to develop and deploy practical methods for estimating hare densities.

I have given amendment 30 a great deal of thought and, in the short time that was available to me, I sought to gather views. I have been inundated with correspondence on the matter, as I know every other member in the chamber has been. I have read about all the points and I have considered them very carefully. One of the most important points for me to understand was how any proposed licensing scheme would operate in practice if hares were to become a protected species, in terms of how that might prevent the large-scale culling of mountain hare and, crucially, how it would allow those with legitimate management responsibilities to continue that work.

Amendment 30 would mean that there would no longer be an open season for mountain hares. Control of their numbers would need to be done under licence all year round and for permitted purposes, such as preventing serous agricultural damage, protecting timber or preventing the spread of disease.

On balance, and notwithstanding our concerns about the late lodging of amendment 30, the Scottish Government has decided to support it. I am content that that move strikes an appropriate balance between the interests of those involved in legitimate land management and protecting an iconic Scottish species.

Having said that, and as I have already suggested, I am not happy with the manner in which the amendment has been advanced. Therefore, although I intend to accept it, I will give careful thought to how any proposed licensing regime will work and to when the protection will come into force. There are still many issues to tease out. I intend to discuss that in detail with stakeholders over the coming months, as part of a proper consultation process.

Mark Ruskell’s amendment 56 on beavers is another addition that was not discussed at any previous stage in the bill process and which was submitted at the last minute. The manuscript element—amendment 56A—was lodged yesterday, just 24 hours before the stage 3 proceedings. I have very serious concerns about the impact that both amendments could have.

Amendment 56 would require Scottish ministers to be satisfied, through the licensing body, Scottish Natural Heritage, that the beaver population is in a favourable conservation status before they would be allowed to issue any licences for any purpose.

Under the current licensing regime, which was introduced by the Government after a process of wide and inclusive consultation and which, I remind members, has been in place for only a year, SNH can issue licences for a number of actions, including ringing or marking animals or introducing them to particular areas.

Amendment 56 would prevent SNH not only from issuing licences to control beaver numbers but from issuing licences to relocate or even to tag beavers. That would mean that we would have no non-lethal options to deploy when beaver dams create large-scale damage to prime agricultural land and no options to assist in studying their behaviour as part of monitoring their welfare. For those reasons, I cannot support amendment 56.

Although the Parliament has had only 24 hours to consider amendment 56A, it is clear that there are fundamental problems with it. Amendment 56A would prevent SNH from issuing a licence for lethal control for any purpose if beavers were found to be in an unfavourable conservation status.

Members will be particularly concerned that Mark Ruskell’s amendment 56A would severely constrain the options to intervene in beaver populations when that was necessary as a matter of public health or if disease were to break out among the beaver population. The proposal would pose a danger to the public as it would to the species.

The Scottish Government has always maintained that beavers should be killed only as a last resort, but that it is essential that we retain the ability to take action, including lethal control, particularly where matters of public health or disease control are concerned.

The Conservation (Natural Habitats, &c) Regulations 1994 already provide that Scottish Natural Heritage cannot grant a licence for anything to do with beavers

“unless they are satisfied—

(a) that there is no satisfactory alternative, and

(b) that the action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status”.

The existing law is therefore already framed in a way that ensures that SNH does not issue licences relating to beavers if the licensed activity would be detrimental to beavers being maintained at favourable conservation status. That is proportionate, and it ensures that animal welfare considerations are taken into account while allowing a range of interventions to be carried out when necessary.

I also remind members that beavers became a European protected species only in May last year. Our beaver mitigation strategy is still evolving and we will continue to refine it as we learn more about the animals and how they interact with their environment. On that note, I am happy to assure members that Scottish Natural Heritage is working closely with stakeholders to address potential beaver conflicts. For example, SNH is working with farmers to trial new and innovative measures to reduce the impact of beavers, which should help to reduce the need for such control measures .

I mentioned that the licensing arrangements have been in place for only a year. We must give those measures times to bed in, rather than rushing to make further legislative changes that could have very significant consequences and which Parliament has not had sufficient time to scrutinise.

I hope to see the beaver population start to expand away from high-conflict areas and into suitable habitats where they can thrive and where we can all see the positive benefits that those remarkable eco-engineers can bring.

We must also remember that no one wanted to be in a situation where licences to control beavers would need to be issued. As Murdo Fraser said, it was the unsanctioned release of a colony into prime agricultural land in Tayside that brought about the conflicts that the Government is now seeking to manage sensibly and with consultation.

Amendments 56 and 56A are not only unnecessary but have the potential to be detrimental to the future of beaver colonies in Scotland. The amendments are ill considered and could be detrimental to animal welfare in Scotland. That is why I cannot support them, and Mark Ruskell should not move them.

Photo of Alison Johnstone Alison Johnstone Green

I thank colleagues across the chamber who share my passion for animal welfare and the protection of Scotland’s mountain hares. Their support is invaluable and appreciated.

We have spent quite a bit of time on the debate on this group. Mr Rumbles, Mr Stevenson and Mr Kerr focused very much on process—a process that I note did not concern them when it came to voting on an earlier amendment. I regret that very much. It is either a principle or it is not.

Photo of Alison Johnstone Alison Johnstone Green

I will not, Mr Rumbles.

Animal welfare is a public good, and decreasing violence against animals is beneficial to society, as we heard in earlier discussions. Mountain hares are currently protected in the closed season between 1 March and 31 July each year, but there is increasing concern about their population status and their welfare. In 2014, Scottish Natural Heritage, Scottish Land & Estates and the Game & Wildlife Conservation Trust issued a statement calling for “voluntary restraint” on large-scale hare culls. Since then, analysis of game bag data by SNH suggests that, on average, 26,000 hares are killed annually, and calls for action have, unsurprisingly, increased.

My amendment 30 is supported by RSPB Scotland, the Scottish Wildlife Trust, OneKind, Revive and the League Against Cruel Sports. The Scottish public strongly support mountain hare protection. Almost 10,000 people responded to my member’s bill, which included the very provision in my amendment, and 74 per cent of those respondents were supportive. I thank them all for their determination to see this much-needed change in the law.

The mountain hare is the UK’s only native hare, and it was listed as “near threatened” in a recent review by the Mammal Society. The late Dr Adam Watson, who was one of Scotland’s great ecologists, said:

“Having counted mountain hares across the moors and high tops of the eastern Highlands since 1943, I find the decline in numbers of these beautiful animals both compelling and of great concern. We need the Scottish Government and Scottish Natural Heritage to take action to help these iconic mammals of the hill—I hope that they will listen to the voice of scientific research.”

Professor Jeremy Wilson, RSPB’s head of conservation science in Scotland, who assisted in the analysis of the data, said:

“It has been an honour to support Dr Watson in the analysis of his extraordinary long-term data set. This data reveals severe recent declines on grouse moors that are strongly correlated with the start of mountain hare culls—for which there is no clear scientific justification. Urgent action is needed if the future conservation status of mountain hares is to be secure.”

Mountain hares are being culled on the basis of no real evidence of the benefit to grouse populations, especially where deer and other tick host species, including grouse, are present, so such measures could be described largely as a precautionary response to promote grouse numbers by sporting estates. Let us ensure that we adopt a real precautionary measure—a real precautionary principle—and that we do not continue to allow the on-going mass killing of Scotland’s mountain hares.

I whole-heartedly endorse the arguments of my colleague Mark Ruskell, who has campaigned with great commitment for the better protection of beavers, which have suffered in recent times.

I warmly urge my colleagues across the chamber to vote for amendment 30, which is important in order to better protect Scotland’s mountain hares.

The Presiding Officer:

The question is, that amendment 30 be agreed to. Are we agreed?

Members:

No.

Division number 13 Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill: Stage 3

Aye: 60 MSPs

No: 19 MSPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 60, Against 19, Abstentions 0.

Amendment 30 agreed to.

Amendment 56 moved—[Mark Ruskell].

Amendment 56A moved—[Mark Ruskell].

The question is, that amendment 56A be agreed to. Are we agreed?

Members:

No.

Division number 14 Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill: Stage 3

Aye: 20 MSPs

No: 60 MSPs

Nos: A-Z by last name

The Presiding Officer:

The result of the division is:

For 20, Against 60, Abstentions 0.

Amendment 56A disagreed to.

I ask Mark Ruskell whether he wishes to press or withdraw amendment 56.

The Presiding Officer:

The question is, that amendment 56 be agreed to. Are we agreed?

Members:

No.

Division number 15 Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill: Stage 3

Aye: 20 MSPs

No: 60 MSPs

Nos: A-Z by last name

The Presiding Officer:

The result of the division is: For 20, Against 60, Abstentions 0.

Amendment 56 disagreed to.