Contents
 
 


Rural Development Committee

10th Report 2001

Stage 1 Report on the Protection of Wild Mammals (Scotland) Bill

Volume 1 : Report
   
 
    
SP Paper 376

Session 1 (2001)

REMIT AND MEMBERSHIP

Remit:

The Rural Development Committee has been appointed by Parliament under Standing Order 6.1 and has the following remit:

To consider and report on matters relating to rural development, agriculture and fisheries and such other matters as fall within the responsibility of the Minister for Rural Development1.

This remit relies upon a definition of the responsibility of the Minister for Rural Development, which includes responsibility for policy in relation to rural development, including agriculture, fisheries and forestry.

Membership:

The Membership of the Committee as approved by Parliament is as follows, and unless Parliament otherwise orders, members serve on the Committee for the duration of the Parliament:

Mr Fergus Ewing (Deputy Convener) [from 2 November 2000]
Mrs Margaret Ewing [from 8 January 2001]
Mr Alex Fergusson
Mrs Rhoda Grant
Mrs Cathy Jamieson [from 8 January 2001]

Mr Alex Johnstone (Convener)
Mr Richard Lochhead
Mr George Lyon [from 29 March 2001]
Dr Elaine Murray
Mr Mike Rumbles
Elaine Smith [from 29 March 2001]

Former members:

 

Mr Duncan Hamilton [2 November 2000 - 7 January 2001]
Dr Lewis Macdonald [until 6 June 2000]
Mr Des McNulty [7 June 2000 - 7 January 2001]
Mrs Irene McGugan [until 1 November 2000]
Mr Alasdair Morgan [until 1 November 2000]

Mrs Mary Mulligan [8 January 2001 - 29 March 2001]
Mr John Munro [until 7 January 2001]
Mrs Cathy Peattie [until 7 Janary 2001]
~ Mr Jamie Stone [8 Janary 2001 - 29 March 2001]

(Note: between the report being agreed and printed, Alex Johnstone was replaced on the committee by Jamie McGrigor, and Alex Fergusson was appointed Convener.)

Committee Clerks:

Richard Davies

Tracey Hawe

Jake Thomas [from 6 November 2000]

Neil Stewart [from 24 April 2001]

Richard Walsh [until 18 September 2000]

 

 

The Committee reports to the Parliament as follows-

INTRODUCTION

1. After the Bill was introduced on 1 March 2000, the Parliament gave the lead role in reporting on its general principles to the Rural Affairs Committee. The Justice & Home Affairs Committee was also asked to consider the Bill in as much as it would create a new criminal offence.

2. There have been many previous attempts to ban hunting by the means of private member's Bills at Westminster. The latest Hunting Bill for England and Wales was introduced on 7 December 2000 and fell upon the dissolution of Parliament.

3. The Bill introduced to the Scottish Parliament by Mike Watson focuses on the use of dogs in hunting, a concept which is not covered by existing legislation2, except that in Scotland the use of dogs to hunt deer is prohibited. The Bill would make it an offence deliberately to hunt a wild mammal with a dog, or to permit one's land to be so used. The explanatory notes (SP Bill 10 EN) list exceptions in the Bill which permit certain activities-

· Organised activity for controlling pests or mammal populations (the Bill creates a licensing scheme for this kind of activity)

· Pest control activity by individual occupiers of land, and

· Certain activity in the nature of retrieval, location or rescue of wild mammals.

4. Mike Watson, the promoter of the Bill has said that it is his intention to end cruelty. He sought to make it clear to the Committee on 4 April 2000 that the aim of the Bill was to end cruelty associated with the use of dogs, although he was amenable to any amendments that are proposed to improve the aim of the Bill.3 The Bill sets out to achieve that end purpose by targeting mounted fox hunts, hare coursing and the use of terriers. It does not address other means of controlling the numbers of wild mammals.

5. In proceeding to investigate the general principles of this Bill the Committee has borne in mind the promoter's intentions for the Bill as a whole. Mike Watson has indicated his willingness to lodge a number of amendments if the Bill is successful at stage 1. However, it is the actual effect of the Bill as introduced that we are required to report upon.

THE STAGE 1 INQUIRY

6. In his presentation to the Committee on 4 April 2000 Mike Watson sought to draw a clear distinction between hunting as a sport and as legitimate pest control work. He also described some amendments which he intended to bring forward if the Bill proceeds to stage 2, most notably to remove the licensing provisions in the Bill.

7. Having heard Mike Watson's presentation, the Committee agreed to seek evidence on the Bill from the following organisations-

Advocates for Animals
Borders Foundation for Rural Sustainability
British Association for Shooting and Conservation
Deer Commission for Scotland
Deerhound Coursing Club
Game Conservancy Trust
International Fund for Animal Welfare
League Against Cruel Sports
National Farmers' Union of Scotland
National Working Terrier Federation
Scottish Association for Country Sports
Scottish Campaign Against Hunting with Dogs
Scottish Countryside Alliance
Scottish Crofters Union
Scottish Executive Rural Affairs Department
Scottish Gamekeepers Association
Scottish Hawk Board
Scottish Hill Packs Association
Scottish Landowners Federation
Scottish Society for the Prevention of Cruelty to Animals

This list was posted on the Committee web page with a general notice that other evidence received from individuals and other organisations would be read to determine whether it was generally in favour of, or opposed to, the general principles of the Bill, that it would be held on file for inspection by Members, and that the number for and against the general principles of the Bill would be reported to the Committee.

8. The Bill had not been subject to any formal pre-legislative consultations. The Committee therefore decided to open consultations with a view to responses being considered immediately after the summer recess. This long period of consultation also enabled the Committee to ensure that other work continued, including a substantial inquiry into the rural economy, stage 1 of the Sea Fisheries (Shellfish) Amendment (Scotland) Bill and all 3 stages of the National Parks (Scotland) Bill.

9. Detailed comments were received from most of the organisations consulted and a substantial response was received from members of the public. Over 3,600 letters were received by the close of consultations on 11 August. In total over 4,600 letters had been recorded up to the point that evidence gathering ceased in January 2001.

10. All of the invited evidence is available on the Committee web page and other correspondence has been placed in the Parliament's Reference Centre. An analysis of the invited evidence, and correspondence is given in the next section. Following discussion in September of the evidence available, the Committee on 3 October 2000 agreed a programme of oral evidence sessions based on a number of areas of concern:

· whether the Bill would achieve Mike Watson's stated aim of ending cruelty- involving a brief study of the meaning of cruelty and the relative cruelty imposed by different activities;

· the difference between pest control and sport - because the Bill does not itself offer a distinction between them; and

· the wider impact of the Bill.

11. The Committee held a series of 4 sessions of oral evidence:

· At the first session, the Committee invited reactions to the main points arising from written evidence, with witnesses from the Scottish Campaign against Hunting with Dogs, the Scottish Countryside Alliance; and Mike Watson and Tricia Marwick, signatories to the Bill.

· The Committee then proceeded over two meetings by examining whether the need for control applies equally to all mammals; what constitutes effective and humane methods of control; the level of suffering imposed by different activities and whether there may be alternative ways of working. During this period, members visited Braemar at the invitation of the Scottish Gamekeepers Association to be shown the terrain over which gamekeepers on a typical highland sporting estate work, and the methods used to control predators of game birds. In addition, all members of the Parliament were invited to watch 5 short video films depicting arguments both for and against the Bill.

· Having examined the different activities that may be covered by the Bill, the Committee examined the wider impact that the Bill may have on the community and the environment. The Committee held a formal meeting in Dumfries to take evidence from the Borders Foundation for Rural Sustainability and the Macaulay Land Use Research Institute (MLURI). At this meeting, the Scottish Landowners' Federation (SLF) and National Farmers' Union of Scotland (MFUS) were asked to represent the interests of those who work and manage the land. The Committee had hoped that a Minister would present the Scottish Executive's view of the Bill at that meeting, but that did not prove possible.

12. At each of these evidence taking sessions, the organisations present were invited to provide a brief summary of the main points of their argument, some of which provided new information, and their reactions to the evidence of others. These are reproduced in volume 2. Finally, some additional evidence was sought on conservation and biodiversity themes. The programme of evidence taking was then completed by inviting the Scottish Executive Rural Affairs Department to provide more up to date figures on the fox populations, and the member in charge of the Bill (Mike Watson MSP) to comment in a final statement on any of the evidence received.

THE EVIDENCE RECEIVED - A GENERAL OVERVIEW

13. In response to its initial invitation to comment, the Committee received detailed replies from 20 organisations, each of whom had been given a copy of the Bill and related introductory papers. The Royal Society for the Protection of Birds, and the Scottish Agricultural Science Agency initially felt unable to comment on the Bill, but both later provided evidence to the Committee on specific matters. We have concentrated in this report on the evidence which has most influenced the Committee's investigations, although all of the evidence requested by the Committee has been listed in volume 2.

14. The Scottish Executive commissioned a report from the Macaulay Land Use Research Institute on the " Economic Impacts of a Ban on Hunting with Dogs in Scotland",4 This was published in June 2000, and a supplement to that report5 was also considered by the Committee on 8 December 2000. A copy of the full report of the Committee of Inquiry into hunting with dogs in England and Wales 6was made available to all members on the Parliament's intranet, although it should be noted that this, essentially English report, does not bear specific relation to the situation in Scotland.

15. In written evidence, many commentators were unclear about the full implications of the Bill. For example, the National Farmers Union of Scotland complained that the Bill lacked legal certainty and that farmers, crofters and the land managers would be uncertain as to what they would and would not be allowed to do legally7. The main areas of uncertainty involved game management, falconry, rough shooting and the use of hill packs.

16. There is disputed evidence on the extent to which foxes need to be controlled. Whilst some commentators point to the dramatic effect on sheep stocks caused by foxes, others disputed the scale of loss8. It was accepted, however, by SSPCA and the International Fund for Animal Welfare (IFAW) that some foxes do cause particular problems and need to be culled. Some evidence suggests that the total fox population is more affected by natural factors such as the supply of food than by all forms of hunting9. There are 10 mounted fox hunts operating in Scotland, with a further 2 hunts based in Northumberland which regularly visit the Borders. MLURI estimated that mounted hunts account for 54310 of the 20,00011 foxes killed each year and therefore play a relatively small part in the overall picture of fox control in Scotland. The MLURI study showed that about 850 foxes are killed each year by the hill packs and that, of the 18,000 or so foxes killed by landowners each year, 70% (about 12,600) are accounted for by shooting; 18% (about 3,240) by snaring; and 12% (about 2,160) by terrier work.

17. Cruelty and necessity were themes disputed in evidence. The League Against Cruel Sports and the SSPCA both gave graphic descriptions of the cause and style of death and injury to terriers, foxes and hares. Others described counter arguments of the efficiency with which certain dogs are able to kill other mammals and of the cruelty associated with alternative legal methods, such as snaring. One effect of the Bill might be to increase the use of snares as a means of fox control, and that this practice was considered by some to be as cruel as the use of dogs12.

18. Other themes raised in written evidence were-

    (a) The welfare and economic arguments surrounding the disposal of dogs and horses which are kept solely for hunting. Whilst the Scottish Countryside Alliance estimate that 41% of horses currently employed would need to be disposed of, the League Against Cruel Sports suggested that an end to mounted hunting could produce an increase in other equestrian activity. The SSPCA suggest that hounds could still be employed to flush foxes to waiting guns within the terms of the Bill.

    (b) Compensation, or the need for assistance with re-employment and retraining of those whose employment depends on hunting, was raised by the Countryside Alliance, the Scottish Association for Country Sports and the Scottish Gamekeepers Association.

    (c) The ending of traditional social activities was raised by the Scottish Landowners' Federation amongst others. Although the League Against Cruel Sports13 argued that, as many residents of rural areas are opposed to hunting with dogs, control of social events by the hunts is divisive in rural communities.

19. The wider impact of the Bill was described, particularly by the Borders Foundation for Rural Sustainability, which commissioned a study of the impact that they felt the Bill would have on the economy of the Scottish Borders. Some commentators, and many petitioners, criticised the MLURI study for being too narrowly focused, and to add to that debate, the Scottish Campaign Against Hunting with Dogs recommended to us a commentary on both studies prepared by Sean Ricard of the Cranfield School of Management. The overall findings and methodologies of all three reports has been examined by the Scottish Parliament information Centre and published as Research Note RN 01/60.

20. The Justice and Home Affairs Committee examined aspects of the Bill that would create a new criminal offence and their report is attached in annex B. The Committee notes the findings of that Committee, particularly -

· On the definitions used in the Bill, where the Justice and Home Affairs Committee did not reach a unanimous view. Some of their members felt that the extent of the prohibition was sufficiently clear, while others remained concerned that the term "to hunt", is too vague to be appropriately and consistently enforceable.

· On the licensing scheme, which they found could provide some certainty if a police officer was called to question whether or not an activity was permitted. However that Committee concluded that the scheme as set out in the Bill would not work well in practice and should be removed as Mike Watson has proposed;

· On the powers of arrest, search and seizure which are proposed in the Bill to be extended to situations where someone was "about to commit" an offence, which they found to be unnecessary and inappropriate, so that they would support Mike Watson's intention of lodging an amendment to remove this;

· On the potential for reduced co-operation between some residents of rural areas and the police, upon which that Committee was not able to assess whether this might have an adverse impact on the ability of the police to tackle existing wildlife and countryside offences;

· On the question of a person charged with contravening the prohibition on hunting having to prove that one of the exceptions to that prohibition applies; that Committee felt that the burden of proof on an accused implied by section 5(6) is draconian and represents a greater compromise of the rights of an accused person than is justified in this context; and

· On resource implications for the criminal justice system, they felt it likely that the Bill would have a short term impact on police and other criminal justice resources, but that this was not a substantial objection to the Bill.

PETITIONS

21. A number of petitions were referred to the Committee. Two petitions urged that the Bill be rejected, and these were noted. A further eight petitions asked that the Parliament commission additional research to that already commissioned by the Executive on the economic impact of a ban on hunting. A further 31 similar letters received by the Public Petitions Committee on this same theme were also passed to us. The Committee decided to continue consideration of this proposal until all of the evidence on economic impact had been examined, by which time additional work had already been carried out by MLURI. At its meeting on 6 March 2001 the Committee concluded that sufficient evidence was then available to the Parliament and that these petitions should be noted without further action14.

OTHER CORRESPONDENCE RECEIVED

22. Over 3,600 letters were received by the close of consultations on 11 August; continuing to a total of 4,615 by January 2001. Many letters were based on what correspondents had read in the press rather than from reading the Bill itself, but what was significant was the extent of individual and carefully made comment. The Committee appreciates the time and trouble taken by so many people to express their views in a coherent manner. While these letters may not have come from a representative sample of the general public, or of those most affected by the proposals, for the record, 2,011 were generally in favour of the Bill and 2,561 were against; 43 were unclear. All of this correspondence is held in the Parliament's reference centre for examination by members.

23. The main points found in these letters dealt with issues that had also been raised in the written evidence invited from organisations. A special issue raised as a result of this correspondence related to the use of lurchers to control foxes in built-up areas where it would be less safe to shoot them. Lurcher owners, who do not have a single representative body, amplified the brief references made in the written evidence from the Countryside Alliance and the Scottish Gamekeepers Association. The Committee also noted from correspondence the widely held view that walking casually with a dog which takes off after a wild mammal could leave the owner liable to prosecution if the Bill were passed. The Committee accepts that this is not an intention of the Bill as introduced; but if the Bill proceeds to stage 2 we would welcome any amendments which clarify that this is indeed the case.

FINDINGS

24. This section outlines the evidence gathered by the Committee about the concept of cruelty, how it has set about evaluating whether or not cruelty is imposed by different activities and whether they should be covered by the Bill. It starts with a consideration of what is meant by cruelty, and the distinction between pest control and sport. It then assesses some activities in the light of these findings.

A definition of cruelty

25. When Mike Watson appeared before the Committee on 14th November 2000 he reiterated that "cruelty is the issue in this Bill", and that the aim of his Bill is to legislate to end it.

26. When seeking prosecutions SSPCA Inspectors use the definition of cruelty as "the infliction of unnecessary suffering"15 which derives from section 1 of the Protection of Animals (Scotland) Act 1912, defining offences of cruelty in terms of causing unnecessary suffering16. The Committee accepted this definition, which is also found in the Wild Mammals (Protection) Act 1996,17 and proceeded to examine the concept of cruelty on this basis so that a judgement might be made on whether the Bill achieves what its promoter had set out to do. The Committee used this definition of cruelty in examining the activities that would be affected by the Bill, to determine whether they were really necessary and how much suffering was imposed. By doing this the Committee was able to draw conclusions on whether the Bill would stop those activities which are cruel in this formal sense, and whether it would impact upon activities which are not cruel.

The necessity of an activity

27. Based on what the Committee heard in evidence, its view on the necessity of activities was based on the following criteria:

28. Whether the activity is required -

· for public health and safety, such as the control of rodents which spread disease and damage electric cables;

· to protect agriculture, both crops and animals; or

· to protect biodiversity, by ensuring that one species does not eradicate others.

29. We also considered the scale of the problem and the efficiency of the technique. Whereas it is generally agreed that there is little need to control hares at present, there is greater need to control foxes and mink. Activities are therefore more necessary if they target specific animals which need to be controlled.

30. Cases where there is no practical alternative method also indicates need. Evidence suggested18 that there is a shortage of effective methods of control of foxes in rough terrain, forests and in built up areas, other than by the use of dogs.

The degree of suffering imposed

31. Based on the evidence taken in the first part of the meeting on 21 November the Committee concluded that the following criteria would assist in questioning the practitioners of various forms of hunting on the scale of suffering imposed-

· Whether the technique allows the animal to be dispatched as quickly as possible;

· Whether the technique involves a sustained chase;

· Whether as a consequence of the technique, there would be an increased likelihood that cubs will be left to starve below the ground;

· Whether the technique encourages conflict between animals of similar ability.

32. The gin trap is an example of a technique that caused a high level of suffering due to the slow death imposed. It was banned for this reason, irrespective of how necessary it was felt to have been at the time. The Committee wanted to find out how to measure suffering. The SSPCA was asked to provide the Committee with information about research into these matters. They explained19 that it is difficult to quantify an animal's response to a given situation and to assess whether that response constitutes a compromise of its welfare. They also explained that "although there is much research into cruelty and abuse of animals, there is little to enlighten us on the responses of hunted animals. This at least is the conclusion of the academics contracted to submit reports to the Burns inquiry in England and Wales"20. The question of conflict between animals of similar ability might arise if a terrier was encouraged into conflict with an adult fox with a high prospect of injury and suffering. On the other hand, the use of terriers to dispatch orphaned cubs has been described as humane because the kill is swift and certain; likewise, the use of lurchers to catch and kill a wounded adult fox is swift because of the power and ability of lurchers.

33. The Committee concluded that there was no absolute measure of suffering: it can only be considered on a comparative scale of whether some activities appear to cause more suffering than others.

Economic impact

34. The Committee arranged for the Information Centre (SPICe) to summarise the findings of the 3 studies of the economic impact of a ban on hunting with dogs and this work has been published as Research note RN 01/60, which is reproduced in the written evidence.21.

35. The first of these studies was carried out by the Macaulay Land Use Research Institute on behalf of the Scottish Executive. We noted that the method of studying the impact was based on evidence collected by those who would be most affected, but that controls were put in place to test the validity of the data. We found it significant that the MLURI report was criticised both for underestimating and for overestimating the figures.

36. We were also impressed more by the extent of similarity, rather than the differences, of the findings of the Borders Foundation for Rural Sustainability on one hand, MLURI in the middle and Dr Sean Ricard, whose work was referred to us by the Scottish Campaign against Hunting with Dogs. The Committee found it interesting that differing methods appear to produce fairly similar findings.

37. Summary of Employment in Hunting and related activities suggested by the 3 studies

Study
(Geographic extent)

BFRS
(Borders only)

MLURI
(all Scotland)

Cranfield
(all Scotland)

 

Employment (FTE)

Employment (FTE)

Employment (FTE)

Mounted hunts:

     

Hunt staff

13

20

20

Employment by Mounted followers

68-85

83

50

Supply industry

25-34

56

42 (suppliers and induced)

Indirect and Induced Effects

8-11

30

       

Foot Packs

N/A

3

N/A

       

Gamekeeping

N/A

59

N/A


source: SPICe Research Note RN01/60

 
38. The overall economic impact of a ban on mounted hunting was also referred to in both the MLURI and BFRS studies. MLURI found that the effects of a ban on hunting on the expenditure of subscribing households (based on all 10 mounted hunts in Scotland) would be a net loss of expenditure of £4.36 million per annum22. The BFRS study showed direct spending by the mounted followers of the 7 hunts in the Borders was estimated to be between £3.08 million and £4.98 million in 1998-9923. In the event of a ban, some of this expenditure by the subscribers to mounted hunts would be spent in other ways. The question then being whether this money is spent in the local economy or elsewhere. MLURI estimated that about 17% of withdrawn expenditure would continue to be spent in Scotland, though conceding that: "it was clearly difficult for respondents to give precise information about a future and somewhat abstract situation".24

39. The Committee agrees that the Bill will have an impact, more so in the Borders and in isolated communities which depend on shooting for game. The Scottish Gamekeepers Association evidence pointed out that gamekeeping staff account for 10% of all jobs in Braemar. The Scottish Borders Countryside Traders25 have also pointed out that effect of a loss of business from the hunts may also affect tourism (which was not considered in the MLURI study) as well as grooms who live in tied houses. The Committee concluded that, as long as individual circumstances are taken into account when the detail of this Bill is considered, these economic factors alone are not enough to justify unnecessary suffering.

Is there a need to control fox numbers?

40. Whilst the Bill generally covers all wild mammals, Mike Watson has indicated his intention to lodge amendments which would exclude rabbits and rodents. Hares, foxes and mink are principal targets of the Bill, but of these the need for control of foxes is the greatest concern and one upon which evidence is disputed. The Scottish pre-breeding fox population is roughly estimated at about 23,000 adults of which about 3,000 live in urban areas. It is suggested that about 40,000 cubs are born to them each year26. No firm or up to date data is available, but the Scottish Executive Rural Affairs Department has confirmed that the fox population has been increasing since the 1950s27. More specifically, the Game Conservancy Trust estimate that the number of foxes increased by 80 % between 1977 and 1994 over a sample area of 4,500 sq. km28.

41. The League Against Cruel Sports questions whether there is any need at all to reduce the fox population. They quote a three-year experiment carried out in Eriboll in 1987. Fox control was stopped for three years whilst it continued as usual on the nearby Balnakeil estate. They concluded that "there was no evidence of an increase in fox predation on lambs, in the number of foxes or of breeding dens in the absence of control at Eriboll between 1987 and 1990"29. The arguments against general control of the fox population are based on the premise that the total population is more affected by the food supply, or even road accidents, than by hunting.

42. The National Farmers' Union of Scotland gave evidence of the annual cost to farmers of lambs lost to foxes30 and in their written evidence the Scottish Hill Packs Association argued that control of the fox population helps to preserve numbers of other small mammals. They quote that an adult fox will kill at least one other animal every day so that, for example, the Altholl and Breadalbane Hill Pack, which kills 200 foxes a year will contribute to the conservation of 73,000 other animals that would otherwise be eaten by the foxes each year. The Scottish Gamekeepers Association argues that, in addition to contributing to biodiversity, control of fox numbers is essential for the maintenance of the surplus population of grouse, without which the economy of many remote communities, which rely heavily upon income from shooting of game, would be greatly affected. The Game Conservancy Trust expressed concern that as the Bill would remove several methods of control, "we might not be able to control the fox population with all the methods that are currently at our disposal."31

43. The Committee concluded that there was overwhelming evidence of the need to control both the total fox population and individual animals which are known to be taking stock.

The difference between Pest Control and Sport

44. Whilst Mike Watson has stressed that the Bill is not intended to prevent legitimate pest control activity, it contains nothing to clarify the difference between pest control and hunting as a sport. The Committee found the presence of spectators and efficiency as a means of pest control to be elements in determining whether an activity is a form of sport. The Committee further agreed that definition as a sport does not necessarily imply cruelty.

EXAMINATION OF THE ACTIVITIES THAT WOULD BE AFFECTED BY THE BILL

Mounted hunts

45. The primary source of written evidence in support of the continuation of mounted hunting was the submission by the Scottish Countryside Alliance. The Committee took oral evidence on mounted fox hunting from Mr John Gilmour, representing the Master of Foxhounds Association. In addition Mr Simon Hart, representing the Scottish Countryside Alliance, spoke with personal experience as a huntsman.32

Necessity of mounted hunts

46. The question of whether mounted fox hunting is a sport or a form of pest control is perhaps the most contentious in this debate. This question was addressed in the form of whether mounted hunts are necessary as a part of the question of whether they are cruel.

47. The Committee viewed separately the necessity of different elements of the "traditional" mounted hunts-

· the call out service

· the removal of fallen stock33;

· the spectator element of watching hounds follow a scent to chase foxes (90% of which are not caught); and

· the killing of foxes by packs of dogs, or by removal from earths.

48. Mounted hunts killed 2,717 foxes in 1994/99, an average of 54 per year for each of the 10 mounted hunts in Scotland. Each hunt met on average 58 times a year with an average of 31 mounted followers on each occasion. The full time staff employed by seven of the hunts also remove some 728 dead animals from farms each year34. Mr John Gilmour of the Master of Foxhounds Association explained that there were two distinct elements to the work of a pack of hounds.

49. "First there is the job carried out by me and my staff, which involves looking after and running of the hounds and the killing of foxes for farmers, landowners and shooters. Secondly, the nice thing about it is that people enjoy following and watching hounds, which is a great attraction. People pay for that privilege. Thank goodness they do, otherwise I could not afford it. The two parts are distinct." 35

50. He added, "We have a specific job. The people who follow hounds are there for the fun of it. They come to ride cross-country, to enjoy the countryside and to have a day out with their friends. It is social experience and a way of life." 36

51. Mr Simon Hart of the Scottish Countryside Alliance also argued that it is both a form of pest control and a sport. In response to a question on how hunts operate when asked to deal with a specific case of lamb predation he explained that such a call-out service was different to a mounted hunt-- " . . there would be a small number of hounds and the huntsman would probably be on foot". "It would usually happen at 5.30 in the morning. Any later and the overnight drag of where the fox has been would probably have evaporated and the operation would be unsuccessful." 37

52. The MLURI report showed that mounted hunts account for a small proportion of the foxes killed in Scotland. The Committee wanted to establish how effective this form of hunting was if it was to be considered as a means of pest control. Mr Gilmour suggested that mounted hunts kill about 1 in every 10 foxes that are flushed out by the hounds. When questioned on this number he justified it by explaining that "no one who hunts foxes wants them to be eliminated. We want a sustainable ecological balance in the countryside." 38 The question of biodiversity was also raised in written evidence, explaining that foxes caught by the hounds are usually old, infirm or previously injured, which helps to conserve the species. However, that argument also led the Committee to consider that it allowed the most active predators to escape.

53. Supporters of traditional methods have argued that an end to mounted hunting would cause an increasing need to snare foxes which all parties agree can be particularly cruel.

54. The Committee found that the presence of spectators, the relatively small numbers of foxes killed by mounted hunts, and the fact that the worst predators often escape brought into question the effectiveness of mounted hunts as a means of pest control, and therefore their necessity. On the other hand subscriptions from hunt followers may subsidise the "call-out" pest control service which is also run by the many hunts that can deal more effectively with individual foxes which are known to be taking stock. This is clearly a more necessary activity.

Suffering involved in mounted hunts

55. Two possible causes of suffering were described to the Committee: the chase, and the kill. On one hand Bill Swan, a veterinary surgeon speaking on behalf of the Scottish Campaign Against Hunting with Dogs spoke of the fox "running away because of fear; otherwise, it would not continue running and making an effort to escape. It will run to the point of exhaustion - a supreme effort. The fox is driven by sound and smell, senses that are especially important to it. As the hound pack gets closer to the fox, the fox's welfare deteriorates considerably. It cannot escape from the threat".39

56. On the other hand, Mr John Gilmour argued that the fox may be miles in front (of the hounds), and probably has little perception that it is being hunted. He went on to say "I have seen foxes stop, sit down, scratch their ears and watch what is going on while they are being hunted. . . The fox cannot be deemed to have the perception of been chased, it knows that something is wrong, but I do not think that it is aware of why something is happening as you or I would be if we were being hunted." 40

57. As far as the efficiency of the kill is concerned, veterinary evidence on post-mortems carried out on foxes that had been caught by hounds was given to the Burns inquiry and quoted in debate: "the degree of trauma caused by the bite is so enormous as to result in instantaneous death." 41 The Committee was also assured that once foxes are caught by hounds they do not escape to die later from their wounds; the kill is certain.

58. On the other hand, Les Ward of SCAHD argued that " As someone who has seen more than 100 fox hunts in Scotland, I can assure the Committee that, for a wild animal, 20 or 30 seconds being attacked by a pack of dogs before death mercifully intervenes is one heck of a long time. . . It does not matter whether the animal's death takes 10, 20, 30 or 40 seconds. If you were a wild mammal and you had a pack of dogs tugging and pulling at you for that length of time, I can assure you that you would suffer."42

59. All witness evidence by those who claim to have seen what actually happens when a fox is caught by a pack of dogs should, however, be treated with caution as demonstrated when this was challenged in oral evidence on 21 November. Mr Gilmour was asked if the followers of the hunt witness the kill. He said: "No, even as a huntsman, when I hunted with hounds, I rarely saw the hounds catch a fox. The hounds are generally three, four or five fields in front, or they may be on the other side of a hill." 43

A conclusion on mounted hunts

60. Different aspects of the work of the mounted hunts were considered separately. The call-out services appeared on their own to be necessary in that they are linked directly to agricultural need. There are no spectators, and they appear to target specific animals that have taken livestock. Whatever suffering is imposed by these services, they could be defined as not cruel because they are necessary.

61. The mounted hunt, attended by hunt followers, does not appear to be a very necessary activity: it is a form of entertainment, an inefficient means of controlling fox numbers and there are alternative methods available. However, the Committee heard that the mounted activity subsidises the more necessary call-out services and the removal of fallen stock from farms. In some parts of the country, the mounted hunts make a contribution to the local economy, which also contributes to their measure of necessity.

62. Turning to the question of suffering, the Committee found that the spectator, or sporting element of mounted hunting relates to the chase, and not the kill, which few people actually witness. There is a mass of conflicting evidence on whether or not the chase imposes stress or suffering, or compromises the welfare of the fox. On the basis, however, that the chase may be protracted to ensure good sport, the Committee reflected that foxes probably do suffer stress when chased by mounted hunts.

63. There is no single scientific opinion to substantiate either the claims or the counter-claims of the speed of the kill by a pack of hounds. The Burns Inquiry concluded that the great disparity between the size and weight of the fox and the hounds means that the time to insensibility and death is usually no more than a few seconds. The Committee agreed that a conclusion on this point must be left to the moral standpoint of the individual.

64. If a fox is chased by a hunt and takes refuge underground it might either be flushed out by terriers or dug out and shot. Some members saw video evidence of a fox being dug out-a lengthy and unpleasant process in that instance. The Committee notes that both practices are likely to involve suffering, but that digging out and shooting a fox is not covered by the provisions of the Bill.

65. The purpose of this examination was to identify whether the Bill would end those things that are cruel (i.e. the imposition of unnecessary suffering), and whether it would interfere with things that are not cruel. Bringing all three elements of the mounted hunts together, the Committee found that the evidence on their necessity and the suffering imposed by them produced different opinions amongst members.

66. The Committee noted that, while the call out service may be deemed a necessary activity, mounted hunts are primarily a form of sport and may involve unnecessary suffering.

Terrier work

67. Key evidence on terrier work was supplied by the National Working Terrier Federation (NWTF), and the Scottish Gamekeepers Association (SGA).

68. The use of terriers in pest control was recorded as early as the 15th Century. The terrier has a natural instinct to go down holes to seek out and pursue its prey. A characteristic which has been developed by breeding is to bark at its quarry rather than attack - those used by gamekeepers are small dogs. They are used singly and, unlike pack hounds, can often be treated as family pets.

69. They are used by farmers and gamekeepers to control rats, rabbits, mink, foxes and other vermin. Some mounted hunts employ terrier men and one of the Scottish Hill Packs is comprised of terriers. Good working practice, as outlined in the NWTF code of conduct, ensures that terriers are used to flush quarry from underground rather than to fight. The practice is a particularly selective form of control. One specific use of terriers does involve the direct killing of foxes. In cases where a lactating vixen is killed, by whatever means, responsible gamekeepers and other hunters have explained that they would seek to find and dispatch the cubs; which would otherwise starve to death. If the cubs are underground, particularly in rocky areas where they cannot be dug out or shot, the use of terriers to find and dispatch the cubs is argued to be the humane solution, and is accepted as such by the SSPCA. 44

70. There appears, however, to be a distinct and separate group of terrier owners who take pride in the abuse of the terriers' ability to fight. Mike Watson has referred in his final statement to the magazine "Earth Dog Running Dog", which has published boasts of owners that the scars on their dogs are treated as badges of honour. The SSPCA has advised the Committee that The Protection of Animals (Scotland) Act 1912 only covers domestic or captive animals.45 A fox held by the legs while dogs baited it was not held to be captive, although the miscreants were found guilty of breach of the peace, because the incident was witnessed. A fox confined to a stopped earth with two terriers was not held to be captive, although the perpetrator was found guilty of causing suffering to his dogs by failing to get veterinary treatment for their injuries. The Wild Mammals Act 199646 protects foxes and other mammals from specific acts of cruelty. However, the exceptions allow for such acts if done by means of snare, trap, dog or bird "lawfully and for the purpose of taking or killing any wild mammal." Thus, while it would be illegal to bait a badger47 (Badgers Act 1992) or a cat (Protection of Animals (Scotland) Act 1912)48 it is not illegal to bait a fox. 49

71. In oral evidence, Mike Flynn, the chief inspector of the SSPCA was asked why successful prosecutions had been made in England, but not in Scotland. He answered: "

"In the English case, as it has been explained to me, the court's view was that, because the person who put the fox and the terrier together did not have permission to be on the land, it was not a necessary act and was, therefore, unnecessary. The prosecution was successful in England because of a play on words. If the person in the English case had been authorised to be on the land by the landowner he would not have been prosecuted.

There was a similar incident four years ago in Bathgate. A fox was caught by four individuals, placed on open land and four terriers were set upon it for more than 20 minutes, during which time the individuals also kicked the fox. All four were arrested because the incident was caught by a security camera. There were four convictions-three of the men got community service and one was jailed-but they were not charged with cruelty, because the Crown said that the fox was not captive because it was in the open. Instead, the men were charged with breach of the peace because they had alarmed the security men who had watched the incident."

..."To answer Mr Fergusson's question, the English cases were successful only because the offenders were not authorised to be on the land."50

72. The Committee makes clear that it abhors any such form of "fox-baiting", whether carried out using dogs or otherwise and we are concerned that the animal welfare agencies have been unable so far to secure any prosecution under existing legislation. The law as it stands provides little protection and the Committee recommends that this issue be examined by the Scottish Executive if this Bill does not proceed beyond stage 1.

73. Those from whom we took evidence clearly care for the welfare of both the terriers and their prey and use terriers in a responsible way to minimise prospects of unnecessary suffering. But the NWTF are concerned at the activities of others with less responsible attitudes and have introduced a code of practice and their own licensing scheme to isolate those who seek to gain sport from "fox-baiting".

74. The Scottish Gamekeepers Association demonstrated to the Committee, both in written evidence and during a visit to the Invercauld Estate at Braemar, that terriers were an essential part of the system of controls needed to maintain a surplus population of game birds, as well as for the rearing of lambs. The Game Conservancy Trust have valued the shooting and deer stalking business at £66 million a year in Scotland, with particular relevance in some remote communities. They have two particular concerns, the proposed prohibition of the use of terriers underground, and the definition of "under close control" when using a dog over wide areas of open space or woodland. The Association is concerned that, if fox control is weakened to the extent that game shooting becomes less viable, gamekeepers could be laid off.

75. Practical advice given to the Committee suggests that some of the alternatives to the use of dogs have limitations-

· snaring can be a danger to other animals, and can itself cause suffering;

· shooting, even by a skilled marksman, may result in wounding as the fox is an evasive creature;

· the use of lamps a night to pinpoint foxes to be shot has limited effectiveness because foxes learn to avoid the lamps.

76. When asked whether there were any real alternatives to his present methods Mr Peter Fraser, from Braemar said: "If there was anything we could try, I think we would have done it by now. I get no pleasure from lying out on the hillside for days on end at a fox den, freezing my backside, shivering, wet and thoroughly miserable. If we could do something else, we would have done it by now."51

77. In his address to the Committee on 4 April Mike Watson accepted that the term "close control" may need to be further defined.52. In his final written statement to the Committee Mike Watson recognises the work carried out by gamekeepers and has explained that it is not his intention to restrict such activities provided their aim is to flush foxes so that they can be humanely shot.

Conclusion on terrier work

78. There is clearly some undesirable activity involving the use of terriers which causes unnecessary suffering, but this is something which the NWTF have discouraged through their code of conduct and registration of legitimate terriermen. The use of terriers in pest control work is necessary as there appear to be few practical alternatives. The Committee welcomes Mike Watson's acceptance of the necessity of the use of terriers. The principal point of disagreement remains the use of terriers underground to dispatch orphaned cubs which appears to the Committee to be the only practical alternative, and more humane, than leaving them to starve.

The Scottish hill packs

79. Fox control outwith the Borders and other lowland areas is largely carried out by hill packs. The Scottish Executive pays grant aid to 31 fox destruction associations whose members also contribute in proportion to the amount of land or stock protected. About £60,000 each year is paid by way of grant. These associations use the services of one of the four fell foxhound gun packs and the one terrier pack which are members of the Scottish Hill Packs Association (SHPA). The Scottish Executive estimate that 3,794 foxes were killed by grant aided fox destruction clubs in 1997/98, of which Scottish Hill Packs Association members account for some 800 adult foxes and cubs each year. In their written evidence, the SHPA explain that they use packs of dogs to flush foxes from cover to be shot by experienced marksmen.

80. They list five possible outcomes of this activity:

· The fox is flushed and shot outright;

· the fox is wounded, then found and killed by the dogs;

· the fox is caught by the hounds on their own account and killed;

· the fox goes to ground in which case terriers are employed to find it; or

· the fox escapes.

81. The SHPA argues that this method of controlling foxes has been proved by many generations to be effective, and that their methods have never developed a sporting element as in England. They commend the code of practice drawn up by the National Working Terrier Federation which seeks to minimise unsafe or inhumane use of terriers underground.

82. The continued operation of the hill packs would be permitted under the licensing provisions of section 2 of the Bill but only if all foxes flushed by the dogs are shot as soon as possible. In their written evidence the League Against Cruel Sports believes that hill packs which operate according to the SHPA rules would have no problem obtaining and holding licences. However, the SHPA were not convinced. It was pointed out by SHPA that it is impossible to ensure that all foxes flushed will be shot. The `expert marksman' who always kills cleanly and never misses does not exist. Almost all the guns who operate with the packs are professional shots; however wounding incidents do still occur, and this is where the hounds again are essential53. They were also concerned at the additional cost of the licensing system and questioned whether licensing would deter illegal use of dogs.

83. Mike Watson told the Committee on 4 April 2000 that any references to "a dog" in the Bill is understood to mean one dog or more than one dog54. This does not appear to have convinced SHPA and other organisations which have expressed concern that they may still be restricted to using one dog in large open spaces. They argued that whilst this would reduce their costs considerably it was not feasible because of this size of areas covered. They were concerned that this could increase the suffering of the fox by extending the chase. Whilst a pack of dogs will find a fox quickly, a single dog could run a fox all day - causing it eventually to die of exhaustion. If the Bill proceeds to stage 2, the Committee would welcome an amendment to clarify this matter.

84. The Committee took oral evidence from representatives of the SHPA on 28 November. In questioning how effective their operation was, Paul Crofts, a professional huntsman with 20 years experience, estimated that 90 per cent of the foxes found would be killed. Of these about 80 per cent would be shot dead, 10 per cent wounded and then caught by the hounds, and 10 per cent caught by the hounds under their own steam.55

85. When questioned on their opposition to the licensing scheme, the SHPA representative expressed concern that, on top of the recent reduction in grant aid, the additional cost of licensing might make their operation unviable and be a backdoor way of banning them. The details of any licensing system would have to be made clear before they could support the Bill.

86. The work of the hill packs has to be viewed in two parts. On one hand their primary practice of flushing foxes to waiting guns is not something which the promoters of the Bill intend to prohibit. However, about 10% of foxes hunted by hill packs will be chased, caught and killed by a pack of dogs, which is a primary objection of the promoters of the Bill. This is no different, as far as the fox is concerned, to being killed by a mounted hunt, except for the absence of followers on horseback. What is different in the hill packs is the use of guns, backed up where necessary by lurchers and terriers to improve the efficiency of the operation in which 90% of foxes found are killed, as opposed to only 10% in mounted hunts.

87. The Committee found that what distinguishes the hill packs from the mounted hunts is their increased efficiency (90% of foxes found are killed compared to 10% by mounted packs). Furthermore, an additional use of dogs as a back up to guns (lurchers to find and kill a wounded fox, terriers to flush from underground) would appear to be a method that consciously avoids unnecessary suffering in the event that the fox is not shot cleanly.

Conclusion on Hill Packs

88. The Committee concluded that the activities of the Scottish Hill Packs are entirely necessary. However, good practice can minimise suffering and we would welcome a means of encouraging the adoption of best practices by the Hill Packs and by Gamekeepers.

Hare Coursing

89. There is little hare coursing in Scotland, but the Committee took evidence from the Deerhound Coursing Club who have held occasional meetings in Aberdeenshire and the Borders. Their primary interest is the preservation of the characteristics of the Deerhound breed of dogs, originally bred to hunt deer. They are large dogs, which can be outmanoeuvred by the hares. The Club stressed that the object was not to kill hares, but test the agility of the dogs. It is not promoted as entertainment, with prize money and betting, unlike greyhound coursing which is common in England. On the other hand, the club argued that deerhound coursing which can attract up to 60 people to a two day meet still contributes to the local economy. It is in the coursers' interest to have a good supply of hares, and they suggest that coursing contributes to the conservation of hares generally by encouraging suitable habitat management. "Individual hares may be killed in a meet, but in a coursing or shooting estate the hare population as a whole will be higher than where there is no coursing, because there is no need to control the hares."56

90. On the question of whether the chase causes suffering to the hares, the Committee was given anecdotal evidence that-

"for some 18 months, in the woods near my home, my dogs and my friends' dogs regularly chased the same distinctive hare, which led them a merry dance all round the woods. We always found that hare in the same place; it seemed to be totally unaffected by being regularly chased. We do not know who caught it in the end; it was not us."57

91. To whether the hare suffers mental stress, the answer given was- "Who knows what goes on in a hare's mind. I know that the hare is supremely designed to elude capture. It is very fast-a lot faster than the deerhound. It can turn in its own length and, assuming it eludes capture, it will then go back to doing exactly what it was doing before it was coursed."58

92. What distinguishes the Deerhound Coursing Club's activity from coursing with Greyhounds, is the reduced danger to the hare. In their written evidence, figures for the last four meetings in England showed that 4 hares were killed during 91 courses. In oral evidence we were told that about 1 in 8 of brown hares coursed are caught; but then an example of one meeting was quoted in which no hares were killed during 50 courses. The Club argued that death was as quick as it can be, but also that "If the hare is caught-and it is a big if-it is usually gripped round the middle and dies pretty much instantly. If it does not die instantly, coursing officials have the specific job of going in, taking the hare from the dogs and killing it immediately."59

Conclusion on Hare Coursing

93. Some members saw videos showing the case for and against hare coursing. The Committee finds that there is clearly no need for hare coursing in terms of pest control. The economic benefit is tiny, and the only real need appears to relate to conservation of the breed characteristics of the Deerhound. As the impact of conserving the habitat for hares is confined to just one or two estates in Scotland, the benefit to the species appears to be minimal. The Committee concluded that hare coursing is unnecessary; but whether or not it is cruel rests on whether hare coursing also causes suffering. Evidence, at least on the work of the Deerhound Coursing Club, is unclear and much may depend on the way in which the activity is regulated. Whilst there is no scientific evidence of suffering in the chase, the need at times for officials to take a hare from the dogs proves that death by coursing is not always instantaneous. A majority of the Committee felt that hare coursing is cruel.60

Falconry

94. The Committee considered written and oral evidence from the Scottish Hawk Board which was concerned that the Bill as introduced would affect their sport, despite an understanding with the promoters of the Bill that this was not an intention of their proposals. The Hawk Board explained that Falconry is the sport of hunting wild prey in its natural state and habitat by means of trained hawks and falcons. During the permitted game seasons, they use spaniels and pointers to seek out and flush a permitted range of mammals and birds for the hawks and falcons to hunt. Section 2(7)(b) of the Bill would affect falconers because they regularly use more than one dog to flush the quarry from cover, and section 2(8) would not exempt them because they do not then shoot hares that are flushed.

95. In terms of the criteria of cruelty, the Committee noted that Falconers themselves describe their activity as a sport, but one which contributes to biodiversity. As the use of dogs is strictly limited to finding and flushing the issue of unnecessary suffering is reduced. Mike Watson explained to the Committee on 4 April 2000 that, if the Bill proceeds to stage 2, he intends to lodge amendments to exempt falconry (and rough shooting) from the effects of the Bill, by removing reference to a single dog. His proposed amendment would also include a provision that flushed mammals are killed, as soon as possible, by a bird of prey as an additional condition within which use of dogs would be permitted in falconry.

96. However, his proposed amendments have not satisfied the Falconers, who still question the meaning of "close control" in the context of dogs being worked out of sight, and the meaning of "as soon as possible" in the context of the varying flight times of a bird of prey. They also question how the Bill can distinguish between 2 dogs being used in falconry that whilst deliberately searching also accidentally chase a hare, and deliberate hare coursing.

97. The Committee welcomes Mike Watson's intention to exclude Falconry from the effect of the Bill if it proceeds to stage 2, but the committee is still not content with the definitions of "close control" and "as soon as possible" as used in the Bill.

CONCLUSIONS AND RECOMMENDATION

98. The Committee supports Mike Watson's aim of ending cruelty but questions whether this Bill sets about that task in the best way. The Bill may contribute to a possible increase in the use of snaring, but this Bill does not address these concerns, nor does it regulate the use of gassing. The Committee noted that these matters appear to be outwith the scope of the Bill.

99. The Committee has been convinced by evidence which has shown that some activities which may at first seem cruel are in fact carried out to avoid unnecessary suffering. For instance, the use of lurchers to follow and kill a fox that has been shot but only wounded appears to us to be more humane than leaving it in a wood or den to die slowly. The use of a terrier to find and dispatch orphaned cubs in a den is more humane than allowing them to starve to death.

100. It is not the use of a dog in itself that implies cruelty; but the method and intent with which it is used. To encourage a terrier to fight with an adult fox either above or beneath the ground is despicable; but we do not agree that this should prevent the beneficial use of terriers by those who care both for wildlife and the safety of their dog. The Committee supports the beneficial use of terriers, both above ground and, where necessary below ground. We also support continuation of the present operations of the Scottish Hill Packs.

101. The Bill is so controversial, and the evidence on cruelty in hunting so inconclusive, that a moral stance has been adopted. The Committee was unable to find consensus on hare coursing and mounted hunts.

102. The principle of this Bill is focussed on the use of dogs which, while well intentioned, misses the point that dogs can be used in both a cruel and a humane way, and are not the common factor in determining cruelty. The Committee, on division61, believed that it is difficult or impossible to amend the Bill into a form which will adequately meet the aim of ending cruelty and for this reason recommends that the general principles of this Bill should not be agreed to.

 

ANNEX A

EXTRACTS FROM THE MINUTES

RURAL AFFAIRS COMMITTEE

EXTRACT OF MINUTES

7th Meeting, 2000 (Session 1)

Tuesday 21 March 2000

Present:

Mr Alex Johnstone (Convener)

Mrs Cathy Peattie

Mrs Rhoda Grant

Dr Elaine Murray

Dr Lewis Macdonald

Mrs Irene McGugan

Mr Alex Fergusson

Mr John Munro

Mr Mike Rumbles

Mr Richard Lochhead

Protection of Wild Mammals (Scotland) Bill: The Committee considered the time-tabling of Stage 1 of this Bill. The Committee agreed that Mike Watson MSP should be invited to give evidence on his Bill to the Committee at its meeting on 4 April. The Committee agreed to discuss the consultation process for the Bill at that meeting, and expressed an intention to take evidence on the Bill prior to the summer recess.

RURAL AFFAIRS COMMITTEE

EXTRACT OF MINUTES

9th Meeting, 2000 (Session 1)

Tuesday 4 April 2000

Present:

Mr Alex Johnstone (Convener)

Mr Alasdair Morgan

Mrs Rhoda Grant

Dr Elaine Murray

Dr Lewis Macdonald

Mrs Irene McGugan

Mr Alex Fergusson

Mr John Munro

Mr Mike Rumbles

Mr Richard Lochhead

Mrs Cathy Peattie

 

Protection of Wild Mammals (Scotland) Bill: The Committee took evidence from Mike Watson MSP on this Bill.

RURAL AFFAIRS COMMITTEE

EXTRACT OF MINUTES

23rd Meeting, 2000 (Session 1)

Tuesday 5th September 2000

Present:

Alex Fergusson

Des McNulty

Alex Johnstone (Convener)

Richard Lochhead

Alasdair Morgan (Deputy Convener)

Dr Elaine Murray

Mrs Irene McGugan Mr Mike Rumbles

Also Present: Mike Watson and John Scott

The Protection of Wild Mammals (Scotland) Bill: The Committee agreed to continue consideration of the written evidence received during its stage 1 consultation for a further two weeks.

Petitions relating to the Protection of Wild Mammals (Scotland) Bill: The Committee considered the following petitions:

PE131, PE141, PE142, PE150, PE151, PE152, PE 157, PE158, PE211 and PE215. The Committee agreed that these petitions be circulated for consideration in conjunction with written evidence on the Bill.

RURAL AFFAIRS COMMITTEE

EXTRACT OF MINUTES

25th Meeting, 2000 (Session 1)

Tuesday 19th September 2000

Present:

Mrs Rhoda Grant
Alex Johnstone (Convener)

Alex Fergusson
Richard Lochhead

Des McNulty

Mrs Irene McGugan

Alasdair Morgan (Deputy Convener)
Mrs Cathy Peattie
Mr Mike Rumbles

John Munro
Dr Elaine Murray

Protection of Wild Mammals (Scotland) Bill: The Committee resumed consideration of written evidence and considered its approach to a stage 1 report. The Committee divided on a proposal that the Committee take oral evidence at Stage 1. The proposal was agreed on division: For 6, Against 5.

RURAL AFFAIRS COMMITTEE

EXTRACT OF MINUTES

27th Meeting, 2000 (Session 1)

Tuesday 3 October 2000

Present:

Mrs Rhoda Grant
Alex Fergusson

Richard Lochhead
John Munro

Alex Johnstone (Convener)

Irene McGugan

Alasdair Morgan (Deputy Convener)
Mrs Cathy Peattie

Mr Mike Rumbles
Dr Elaine Murray

Protection of Wild Mammals (Scotland) Bill: The Committee considered its approach to taking evidence at Stage 1 of this Bill and agreed dates and witnesses for the taking of oral evidence as follows:-

    14 November: Scottish Campaign against Hunting with Dogs, the Scottish Countryside Alliance and Mike Watson MSP.

    21 November: The Game Conservancy Trust, Scottish Agricultural Science Agency, Scottish Society for the Prevention of Cruelty to Animals, the Deerhound Coursing Club and other sporting interest groups. The Committee also agreed to seek an academic view regarding the effectiveness of pest control techniques.

    28 November: The Scottish Gamekeepers Association, Scottish Hillpacks Association, National Working Terrier Federation, British Association for Shooting and Conservation, Scottish Society for Prevention of Cruelty to Animals and the League Against Cruel Sports.

    5 December: Macaulay Land Use Research Institute, Borders Foundation for Rural Sustainability, the Minister for Rural Affairs and a representative (to be identified) of land management interests.

The Committee agreed that each organisation should provide one representative to give evidence and, if they wish, provide written summaries of no more than two pages to illustrate their main points. It was agreed that additional research requirements be investigated and that consideration of the need for fact-finding visits be continued at a later meeting.

RURAL AFFAIRS COMMITTEE

EXTRACT OF MINUTES

30th Meeting, 2000 (Session 1)

Tuesday 14 November 2000

Present:

Mrs Rhoda Grant
Alex Fergusson

Richard Lochhead
John Munro

Alex Johnstone (Convener)

Fergus Ewing (Deputy Convener)

Des McNulty
Mrs Cathy Peattie

Mr Mike Rumbles
Dr Elaine Murray

Also Present: Mike Watson and Tricia Marwick

Protection of Wild Mammals (Scotland) Bill: The Committee took evidence from Bill Swann, Les Ward and Douglas Batchelor from the Scottish Campaign against Hunting with Dogs, Allan Murray, Simon Hart and Peter Watson from the Scottish Countryside Alliance, and Mike Watson MSP and Tricia Marwick MSP.

Protection of Wild Mammals (Scotland) Bill - Discussion of evidence: The Committee agreed to continue consideration of their conclusions of the evidence heard at the meeting.

Protection of Wild Mammals (Scotland) Bill - fact finding visits: The Committee agreed to accept an invitation from the Scottish Gamekeepers Association to undertake a fact-finding visit in Braemar and also agreed that the fourth evidence session on this Bill should be held in Dumfries, in early December.

RURAL AFFAIRS COMMITTEE

EXTRACT OF MINUTES

32nd Meeting, 2000 (Session 1)

Tuesday 21 November 2000

Present:

Mrs Rhoda Grant
Alex Fergusson

Richard Lochhead
Duncan Hamilton

Alex Johnstone (Convener)

Fergus Ewing (Deputy Convener)

Des McNulty
Mrs Cathy Peattie

Mr Mike Rumbles

Also Present: Jamie McGrigor

Protection of Wild Mammals (Scotland) Bill (in private): The Committee discussed possible lines of questioning for item 2.

Protection of Wild Mammals (Scotland) Bill: The Committee took evidence from Dr Gill Hartley of the Scottish Agricultural Science Agency, Mr Ian McCall, Director Scotland of the Game Conservancy Trust and James Morris of the Scottish Society for the Prevention of Cruelty to Animals.

The Committee took evidence from Andrew Knowles-Brown of the Scottish Hawk Board, Mrs Ann Taylor and Dr Seumus Caine of the Deerhound Coursing Club and John Gilmour, Master of Foxhounds Association.

Protection of Wild Mammals (Scotland) Bill: The Committee considered their conclusions from the evidence heard at the meeting, agreed to view video evidence of hare coursing and to request certain additional information.

RURAL AFFAIRS COMMITTEE

EXTRACT OF MINUTES

33rd Meeting, 2000 (Session 1)

Tuesday 28 November 2000

Present:

Mrs Rhoda Grant
Alex Fergusson

Richard Lochhead
Duncan Hamilton

Alex Johnstone (Convener)

Fergus Ewing (Deputy Convener)

Des McNulty
Mrs Cathy Peattie
John Munro

Mr Mike Rumbles
Dr Elaine Murray

Also Present: Jamie Stone

Protection of Wild Mammals (Scotland) Bill: The Committee took evidence from Barry Wade of the National Working Terrier Federation, Robbie Rowantree of the Scottish Hill Packs Association, Alex Hogg of the Scottish Gamekeepers Association, Colin Shedden of the British Association for Shooting and Conservation, David Coulthread of the League against Cruel Sports and James Morris of the Scottish Society for the Prevention of Cruelty to Animals.

Protection of Wild Mammals (Scotland) Bill: The Committee considered their conclusions from the evidence heard at the meeting.

RURAL AFFAIRS COMMITTEE

EXTRACT OF MINUTES

35th Meeting, 2000 (Session 1)

Friday 8 December 2000

Present:

Fergus Ewing (Deputy Convener)
Mrs Rhoda Grant

Alex Fergusson
Alex Johnstone (Convener)

Richard Lochhead

Dr Elaine Murray

Mr Mike Rumbles
Also Present: David Mundell

 

Protection of Wild Mammals (Scotland) Bill: The Committee took evidence from-

    The Earl of Dalhousie - Scottish Landowners' Federation

    Mr Ian Melrose - National Farmers' Union of Scotland

    Ralph Cobham - Borders' Foundation for Rural Sustainability

    Dr Bob Crabtree on behalf of the Macaulay Land Use Research Institute.

Protection of Wild Mammals (Scotland) Bill: The Committee concluded that there should be a further day of oral evidence, when the Minister for Rural Development would be called to present factual evidence before the Committee completes its Stage 1 report. It was also agreed that a review of various research papers presented on the economic impact of the Bill should be undertaken by SPICe, and that there would be a review of the various calls for additional evidence made to date at the next meeting of the Committee.

RURAL AFFAIRS COMMITTEE

EXTRACT OF MINUTES

36th Meeting, 2000 (Session 1)

Tuesday 12 December 2000

Present:

Fergus Ewing (Deputy Convener)
Mrs Rhoda Grant

Alex Fergusson
Duncan Hamilton

Alex Johnstone (Convener)
Des McNulty

Richard Lochhead
John Munro

Dr Elaine Murray
Mr Mike Rumbles

Mrs Cathy Peattie

Protection of Wild Mammals (Scotland) Bill: The Committee considered additional evidence required for consideration of this Bill and, in affirming the decision of 8 December, agreed that the additional evidence be considered on 23 January 2001.

RURAL AFFAIRS COMMITTEE

EXTRACT OF MINUTES

1st Meeting, 2001 (Session 1)

Tuesday 16 January 2001

Present:

Fergus Ewing (Deputy Convener)
Alex Fergusson

Margaret Ewing
Mrs Rhoda Grant

Cathy Jamieson

Alex Johnstone (Convener)

Richard Lochhead
Dr Elaine Murray

Mary Mulligan
Mr Mike Rumbles

Jamie Stone

Protection of Wild Mammals (Scotland) Bill: The Committee considered additional evidence as requested and agreed to publish these submissions on the web page. The Committee divided on a proposal to take additional oral evidence which was not agreed to (For: 4 Against: 6 Abstentions: 1). It was agreed that remaining questions be resolved by correspondence.

RURAL AFFAIRS COMMITTEE

EXTRACT OF MINUTES

3rd Meeting, 2001 (Session 1)

Tuesday 6 February 2001

Present:

Fergus Ewing (Deputy Convener)
Alex Fergusson

Margaret Ewing
Mrs Rhoda Grant

Cathy Jamieson

Alex Johnstone (Convener)

Richard Lochhead
Dr Elaine Murray

Mary Mulligan
Mr Mike Rumbles

Items in Private: It was agreed to consider draft stage 1 reports on the Protection of Wild Mammals (Scotland) Bill in private both at this and future meetings.

Protection of Wild Mammals (Scotland) Bill (in private): The Committee considered a draft report.

RURAL AFFAIRS COMMITTEE

EXTRACT OF MINUTES

4th Meeting, 2001 (Session 1)

Tuesday 13 February 2001

Present:

Fergus Ewing (Deputy Convener)
Alex Fergusson

Margaret Ewing
Mrs Rhoda Grant

Cathy Jamieson

Alex Johnstone (Convener)

Richard Lochhead
Dr Elaine Murray

Mary Mulligan
Mr Mike Rumbles

Jamie Stone

Protection of Wild Mammals (Scotland) Bill (in private): The Committee considered a draft report.

RURAL AFFAIRS COMMITTEE

EXTRACT OF MINUTES

5th Meeting, 2001 (Session 1)

Tuesday 27 February 2001

Present:

Fergus Ewing (Deputy Convener)
Cathy Jamieson

Mrs Rhoda Grant
Alex Johnstone (Convener)

Mary Mulligan

Dr Elaine Murray

Mr Mike Rumbles

 

Petitions relating to the Protection of Wild Mammals (Scotland) Bill: The Committee agreed to defer consideration of these petitions until the next meeting.

Protection of Wild Mammals (Scotland) Bill draft Stage 1 Report (in private): The Committee agreed to defer consideration of this matter until the next meeting.

RURAL AFFAIRS COMMITTEE

EXTRACT OF MINUTES

6th Meeting, 2001 (Session 1)

Tuesday 6 March 2001

Present:

Fergus Ewing (Deputy Convener)
Mrs Rhoda Grant

Alex Fergusson
Cathy Jamieson

Alex Johnstone (Convener)

Richard Lochhead

Mrs Mary Mulligan
Mr Mike Rumbles

Dr Elaine Murray
Jamie Stone

Petitions relating to the Protection of Wild Mammals (Scotland) Bill: The Committee agreed to note petitions 211 and 215 and make reference to them in the stage 1 report. The Committee agreed to note and conclude consideration of petitions 131, 141, 142, 150, 151, 152, 157 and 158, on the basis that sufficient evidence had been gathered on the bill at this stage.

Protection of Wild Mammals (Scotland) Bill (in private): The Committee agreed to defer consideration of this item until 3 April 2001.

RURAL AFFAIRS COMMITTEE

EXTRACT OF MINUTES

12th Meeting, 2001 (Session 1)

Tuesday 1 May 2001

Present:

Fergus Ewing
Alex Fergusson
Cathy Jamieson
George Lyon

Mrs Margaret Ewing
Rhoda Grant
Alex Johnstone (Convener)
Richard Lochhead

Dr Elaine Murray

Mr Mike Rumbles

Protection of Wild Mammals (Scotland) Bill (in private): The Committee considered a draft report, agreed a number of changes and agreed to continue consideration of the report on 22 May.

Record of Decisions in Private:

The Committee agreed to consider the options for the conclusion to the report before resuming consideration of the detailed report.

The Convener put to the Committee the question: That it agrees to make a recommendation to the Parliament. This was agreed to by division: For 5, Against 5, Abstentions 0; agreed to on the Convener's casting vote.

For:

Against:

Fergus Ewing

Mrs Margaret Ewing

Alex Fergusson

Rhoda Grant

Alex Johnstone

Cathy Jamieson

George Lyon

Richard Lochhead

Mr Mike Rumbles

Dr Elaine Murray

The Convenor then put the question of whether members, in principle, preferred option 1 (that the general principles of the Bill should not be agreed to), the alternative being option 3 (that the general principles of the Bill should be agreed to).

Option 1 was agreed to by division: For 6, Against 3, Abstain 1.

For:

Against:

Abstain:

Fergus Ewing

Rhoda Grant

Dr Elaine Murray

Mrs Margaret Ewing

Cathy Jamieson

 

Alex Fergusson

Richard Lochhead

 

Alex Johnstone

   

George Lyon

   

Mr Mike Rumbles

   

It was agreed that the record of divisions be kept private until publication of the report.

RURAL AFFAIRS COMMITTEE

EXTRACT OF MINUTES

14th Meeting, 2001 (Session 1)

Tuesday 22 May 2001

Present:

Fergus Ewing
Alex Fergusson
Cathy Jamieson
Richard Lochhead
Dr Elaine Murray

Mrs Margaret Ewing
Rhoda Grant
Alex Johnstone (Convener)
George Lyon
Mr Mike Rumbles

Protection of Wild Mammals (Scotland) Bill (in private): The Committee continued consideration of a draft report.

RURAL AFFAIRS COMMITTEE

EXTRACT OF MINUTES

15th Meeting, 2001 (Session 1)

Tuesday 12 June 2001

Present:

Fergus Ewing
Alex Fergusson
Cathy Jamieson
Richard Lochhead
Dr Elaine Murray

Mrs Margaret Ewing
Rhoda Grant
Alex Johnstone (Convener)
George Lyon
Mr Mike Rumbles

Elaine Smith

 

Protection of Wild Mammals (Scotland) Bill (in private): The Committee considered its draft stage 1 report and agreed to continue discussion on 19th June.

Record of Decisions in Private:

    The Committee considered arrangements for publication and agreed-

    (i) to make no decision on the date for publication of the report until discussion of the text was complete,

    (ii) that all written evidence be published on the committee web page

    (iii) that the 3 economic impact studies should be not be printed in the report but instead the full SPICe research note RN 01/60 should be reproduced in the report, and

    (iii) that all other written evidence which is directly referred to in the report should be printed.

    The Committee then discussed various amendments to the text of the report.

RURAL AFFAIRS COMMITTEE

EXTRACT OF MINUTES

16th Meeting, 2001 (Session 1)

Tuesday 19 June 2001

Present:

Fergus Ewing
Alex Fergusson
Cathy Jamieson
Richard Lochhead
Mr Mike Rumbles

Mrs Margaret Ewing
Rhoda Grant
Alex Johnstone (Convener)
Dr Elaine Murray
Elaine Smith

Apologies: George Lyon

Protection of Wild Mammals (Scotland) Bill (in private): The Committee discussed its draft stage 1 report and agreed to consider the report, as then amended, on 26 June.

Record of Decisions in Private:

The Committee agreed to amendments made as a result of previous discussions, and to further amendments.

The Committee divided on a proposal by Rhoda Grant: That in Paragraph 92 (Conclusion on Hare Coursing) the words "The Committee was divided on whether the form of hare coursing considered by us is cruel.", be deleted and replaced with "A majority of the Committee felt that Hare Coursing is cruel".

The Committee agreed to the proposal by division: For 5, Against 3, Abstentions 2-

For

Against

Abstain

Rhoda Grant

Fergus Ewing

Margaret Ewing

Cathy Jamieson

Alex Fergusson

Mike Rumbles

Richard Lochhead

Alex Johnstone

 

Elaine Murray

   

Elaine Smith

   

RURAL AFFAIRS COMMITTEE

EXTRACT OF MINUTES

17th Meeting, 2001 (Session 1)

Tuesday 26 June 2001

Present:

Fergus Ewing
Alex Fergusson
Alex Johnstone (Convener)
George Lyon
Mr Mike Rumbles

Mrs Margaret Ewing
Rhoda Grant
Richard Lochhead
Dr Elaine Murray
Elaine Smith

Protection of Wild Mammals (Scotland) Bill (in private): The Committee agreed its report for publication, subject to minor changes.

ANNEX B

JUSTICE & HOME AFFAIRS COMMITTEE REPORT

CONTENTS

Introduction and background The criminal offence Exceptions to the offence Powers of arrest, search and seizure Other aspects of enforceability Burden of proof on the person charged with the offence Penalties and disqualification Resource implications for the criminal justice system Conclusion

ANNEX B: REPORT BY THE JUSTICE AND HOME AFFAIRS COMMITTEE

Introduction and Background

1. When the Parliament agreed on 16 March 2000 that the Rural Affairs Committee should be the lead committee in considering the Protection of Wild Mammals (Scotland) Bill at Stage 1, it also invited the Justice and Home Affairs Committee to consider the Bill. A few days later, the Presiding Officer wrote to the then Convener making clear that "the referral is seeking your committee's view on the Bill only in as much as the Bill will create a new criminal offence".

2. The Committee has therefore considered the Bill only in respect of its implications for law enforcement. In particular, it has not taken evidence on the general issue of the proposed ban on hunting with dogs, and does not express any overall view in this report on the merits of the Bill, or whether the general principles should be agreed to at the conclusion of Stage 1.

3. The Committee took oral evidence at its meeting on 19 September from the Scottish Campaign against /Hunting with Dogs (SCAHD), supported by representatives of the Scottish Society for the Prevention of Cruelty to Animals (SSPCA) and the Royal Society for the Prevention of Cruelty to Animals (RSPCA), and from the Association of Chief Police Officers' in Scotland (ACPOS). On 27 September, we took evidence from the Scottish Countryside Alliance. We have also received written evidence from these organisations and from the Law Society of Scotland, the Scottish Gamekeepers' Association and Ann Taylor. We also had sight of relevant written evidence submitted to the Rural Affairs Committee.

The criminal offence

4. The criminal offences created by the Bill are set out in section 1. Subsection (1) provides that "a person must not hunt a wild mammal with a dog", and subsection (2) of that section makes contravention of that prohibition a criminal offence. In addition, under subsections (3) to (5), a person commits an offence if he or she allows someone to enter or use their land to hunt, allows someone to use their dog or keeps dogs intending them to be to used to hunt. The penalties that attach to commission of an offence under the Bill are set out in section 5, and are considered below.

5. The Scottish Executive pointed out that "the creation of a new criminal offence is a serious matter, and generally one of resort where legislation initiated by the state is concerned" (submission to Rural Affairs Committee). The Executive's view, in other words, appears to be that it is inappropriate for a non-Executive Bill to include provisions creating a criminal offence. The Committee recognises that, for good practical reasons, the procedural mechanism available to individual MSPs to initiate legislation is most appropriately used to propose relatively modest changes to the law. However, we see no reason in principle why a Member's Bill should not create new offences. On the other hand, we do acknowledge the point made by the Scottish Countryside Alliance that, when considering legislation that "makes criminal activities that have been lawful for a long time, the Parliament should be scrupulous in ensuring that the scope and extent of the criminal conduct is as tightly defined as possible" (col 1787).

6. In that context, we are aware of concerns that the definitions in the Bill are too vague and could lead to confusion about precisely what activities will be criminalised. The Alliance argued that the offence was "poorly defined" and was a "catch-all provision". Indeed, they doubted whether it was "possible to define hunting in a way that achieves the aim of the promoters of the bill" (col 1794). The Scottish Gamekeepers' Association (SGA paragraph 6) argued that section 1(5) might result in any person owning a terrier or hound being regarded as a suspected criminal.

7. Not surprisingly, the Bill's supporters disagreed. According to SCAHD, the Bill would not apply to the flushing-out of foxes but would criminalise behaviour where dogs are "used specifically to pursue, capture and kill animals", for example some kinds of terrier work (col 1706).

8. Assistant Chief Constable Gordon (ACPOS) also found the definition of the prohibited activity problematic. The definition was, in his view, "lax" and would require to be clarified by court decisions. Although he understood the Bill's purpose as being to ban hunting for sport but not for pest control, the terms of the Bill made it difficult to distinguish the two. This would make it difficult for him to brief police officers on how to enforce the new law (cols 1729-30).

9. The Committee did not reach a unanimous view on this point. Some felt the extent of the prohibition was sufficiently clear, while others remain concerned that, particularly in respect of the term "to hunt", it is too vague to be appropriately and consistently enforceable.

Exceptions to the offence

10. Sections 2 and 3 set out exceptions to the prohibition created by section 1. Section 2(1) exempts activity conducted under a licence granted in accordance with subsections (2) to (6) of that section. Such licences are to be granted to specified individuals on application to the Executive, and only in the interests of controlling species numbers or protecting livestock from predation. Section 2(7) and (8) exempts the use of a single dog "under close control" to hunt rabbits or rodents, or to stalk or flush from cover foxes or hares where this is to protect livestock, crops etc. or to take rabbits or hares for food. Section 3 exempts from the prohibition using a dog to retrieve a rabbit or hare that has been shot or to locate any wild mammal that has escaped or been released from captivity, or is injured.

11. A number of witnesses expressed doubts about the licensing provisions. The Executive, which would be required to administer the scheme, questioned whether it was best placed to do so. It also pointed out a number of respects in which the Bill leaves undefined how the Executive should fulfil its obligations under the scheme - for example in deciding whether an applicant for a licence is "suitable" or whether he or she has "appropriate marksmanship or other skills" (submission to Rural Affairs Committee). The National Farmers' Union said the licensing scheme involved "unnecessary and expensive bureaucracy" and was "overly prescriptive" (submission to Rural Affairs Committee); the Scottish Landowners Federation (SLF), on the other hand, said it was "appalled by the lack of definition" in the scheme (submission to Rural Affairs Committee).

12. For ACPOS, the advantage of licensing was that it could provide certainty to the officer on the ground: "an officer can question whether [dogs] should be there, and the owner can produce a piece of paper to prove that they should be". But the police would also be expected to determine the character of people applying for licences, and Assistant Chief Constable Gordon had "no idea" how the police could reasonably establish whether someone was a good marksman (col 1730).

13. The Committee understands that Mike Watson intends to lodge amendments at Stage 2 to replace the licensing provisions with further definitions of activity exempted from the prohibition (col 1713). However, the Scottish Countryside Alliance was not convinced this would solve the problem: "The licensing scheme was regarded as an integral and essential ingredient in the legislation ... What will replace it remains a little obscure ... We believe that there will be considerable difficulties in defining in the Bill the permitted and lawful activities" (col 1785).

14. The Committee recognises that, in principle, a licensing scheme could provide a useful mechanism to allow the police to establish whether a person is entitled to act in ways that would otherwise be against the law. However, we doubt the scheme set out in the Bill would achieve this in practice, since there would remain practical difficulties for the police in deciding whether a person in possession of a licence was acting wholly within the limits of what the licence authorises. For example, someone might obtain a licence to conduct a cull of a particular mammal on a particular estate, but under section 2(2)(a) the licence would entitle them only to stalk or flush such a mammal "in order to safeguard the welfare" of that species. It remains unclear how a police officer could establish at what point such activity goes beyond what is necessary to achieve that purpose.

15. There are other practical difficulties with the scheme. Section 2(2)(b) does not appear to allow a livestock farmer to obtain a licence as a general precaution against attack by wild mammals, since the licence must identify the place and the kind of mammal; but if the farmer waits until a particular attack takes place, the damage is likely to be done by the time any application has been processed.

16. For these reasons, we think it is preferable to remove the licensing provisions, as Mike Watson proposes. In any case, the Bill only provides for licenses to be issued in respect of some, and not all, of the activities that are exempted from the prohibition in section 1(1). So the underlying difficulty, of enforcing on the ground a prohibition that relies on a complex definition of prohibited activities, remains. These difficulties, while they must be acknowledged, are not necessarily so great as to render the Bill unenforceable.

Powers of arrest, search and seizure

17. Section 4 sets out the powers of the police to enforce the prohibition on hunting, including powers of arrest, powers to stop and search people and to search or seize their vehicles, animals or possessions.

18. According to SCAHD, these powers are "familiar" and were, in most respects, those "habitually appearing in legislation creating offences" (paragraph 4). The Executive agreed that the police powers were typical of those found in other legislation (submission to Rural Affairs Committee).

19. Other witnesses disagreed. The Scottish Landowners' Federation regarded them as "alarming", saying the policing would be impractical and the powers did not "equate with possible offences" (submission to Rural Affairs Committee). The Scottish Countryside Alliance thought the powers "wide reaching and unnecessary" and doubted whether the police wished to have them (col 1787).

20. According to Assistant Chief Constable Gordon, however, the policing implications of the Bill were comparable to those of the Wildlife and Countryside Act 1981 - which had proved difficult to enforce by its failure to make appropriate provisions about arrest and seizure. "The fact that invariably crimes against wildlife occur in remote areas make it absolutely essential that an unconditional power of arrest is available to the police" (paragraph 3).

21. A number of witnesses expressed particular concern that the Bill allows the police to exercise their powers under section 4(1) not just where they suspect that a person has committed or is committing an offence, but where they suspect the person is "about to commit an offence". For the Scottish Countryside Alliance, giving the police such powers "through vague language about an offence that is about to be committed, is draconian" and would be unprecedented for modern wildlife legislation (col 1789-90). The phrase "about to commit an offence" was "vague, imprecise and liable to lead to practical difficulties" (col 1794).

22. The Law Society of Scotland agreed, describing it as "a radical departure from the standard provisions of Scots criminal law, which entitle a constable to act only where there are reasonable grounds for suspecting that the commission of a crime has taken place or is in the course of taking place". The Society recommended the deletion of the relevant words, suggesting that the Bill could simply rely on the existing law (specifically, section 294 of the Criminal Procedure (Scotland) Act 1995) which makes an attempt to commit a crime itself an offence (paragraph 6).

23. SCAHD acknowledged the novelty of the provision, but believed there was "an overwhelming policy case" for giving the police powers to "prevent an offence from being committed. Once a dog has been released to hunt, the fate of the quarry is in practice sealed" (paragraph 6). However, they acknowledged that the provision went further than was necessary to achieve that intention, and further than comparable provision in existing legislation: "We accept that the formulation in the Bill as it stands is inappropriate and that it will be removed" (col 1711).

24. SCAHD referred, by means of comparison, to section 24 of the Deer (Scotland) Act 1996, according to which a person commits an offence if he or she "attempts to commit or does any act preparatory to the commission of an offence". For the Scottish Countryside Alliance, that formulation was more precise and satisfactory than that used in the Bill.

25. The Committee accepts the consensus among witnesses both for and against the Bill that extending the police powers to situations where someone is "about to commit" an offence is unnecessary and inappropriate. We therefore welcome Mike Watson's reported intention to lodge an amendment to address the point. Should the Bill proceed to Stage 2, the Rural Affairs Committee might consider whether, rather than simply omitting the relevant words, it might be preferable to replace them with wording modelled on that used in the Deer (Scotland) Act 1996 or other comparable wildlife legislation.

26. More generally, we recognise that the powers established in section 4 of the Bill are probably the minimum that would be required to allow the police properly to enforce the legislation. At the same time, however, we recognise that these remain substantial powers. Some Committee members question whether it is appropriate to legislate in relation to activities of this sort if, in order to ensure that the legislation can achieve its purpose, the police must be given such powers.

Other aspects of enforceability

27. A general problem for ACPOS was that the police relied a great deal on maintaining good informal relations with the public in relation to wildlife and countryside matters. "The bulk of people in the countryside are against the taking of birds' eggs and badger digging, so those are regularly reported. The countryside appears to be split in relation to this Bill, with the majority probably being in favour of some of the activities that this Bill seeks to stop. They will therefore be reluctant to pass on information about those activities". Such reduced information would not only make enforcing the Bill more difficult, it might also undermine good relations between police and public in rural areas more generally, making it more difficult for the police to combat other rural crime (cols 1727-8). For example, the most effective method for the police to combat illegal pest control was to work co-operatively with the gamekeepers who might otherwise be involved in such activity, including encouraging them to adopt lawful methods. If this Bill became law, the police "might suddenly be asked to prosecute them, or investigate them, for what is currently legal pest control that we help them with. That will make it difficult to work with those people" (col 1729).

28. Other witnesses echoed these concerns. The Scottish Gamekeepers' Association said that "relationships between police and gamekeepers/rural communities are generally constructive ... [but] if this Bill is enacted and surveillance teams descend on rural areas, these contacts will deteriorate and the police will inevitably be viewed with suspicion" (paragraph 10). Similarly, the Scottish Countryside Alliance thought the Bill would create an impossible working atmosphere between police and public because "the best police work in the country is done with consent and community spirit" (col 1786). The SSPCA also acknowledged the extent to which it relied on information supplied by the public in relation to animal welfare legislation (col 1706).

29. The Committee acknowledges the evidence that there might be reduced co-operation between some residents of rural areas and the police, but we are not in a position to assess the extent to which this might have an adverse impact on the ability of the police to tackle existing wildlife and countryside offences.

Burden of proof on the person charged with the offence

30. Section 5(6) imposes on the person charged with contravening the prohibition on hunting in section 1(1) the burden of proving that one of the exceptions to that prohibition applies. That burden would require to be discharged on the balance of probabilities (which is generally the burden applicable in civil cases); the prosecution would still require to prove beyond reasonable doubt that an offence had been committed.

31. The Scottish Countryside Alliance saw "no justification for departing from the basic principle of Scots law that it is for the prosecution to establish and bring home guilt on every aspect of a charge" (col 1789). The Scottish Gamekeepers' Association objected to the mention made by SCAHD of a parallel provision in the Misuse of Drugs Act 1971 (col 1714), saying "There is no parallel between those who misuse or sell drugs and the work of the professional gamekeeper. The SCAHD has failed to show why a `crime' that the police concede does not fulfil the criteria of a `serious crime', should be classified as one that requires such harsh measures" (paragraph 9).

32. SCAHD acknowledged these concerns, and recognised that "effective enforcement of the provisions would not be compromised seriously if some or all of the exceptions in the Bill were subject to a lesser onus. In other words, it would be possible simply to raise an excuse to create a reasonable doubt" (col 1708). The Campaign accepted that "this aspect of the bill could profitably be reviewed at Stage 2" (col 1708).

33. The Committee believes section 5(6) is draconian and represents a greater compromise of the rights of an accused person than is justified in this context. There is a case for saying that section 2(1) - the exception for licensed activities - is the one exception in the Bill for which such a reversed burden of proof would be appropriate. However, on the assumption that the licensing scheme is to be removed by amendment, it would also be appropriate to remove in its entirety section 5(6).

Penalties and disqualification

34. Under section 5(1), the maximum penalty for a person convicted, on summary procedure, of an offence under the Bill is imprisonment for up to 6 months or a fine of up to level 5 on the standard scale (currently £5,000) or both. That section also provides that an individual, a partnership and a body corporate can be prosecuted for an offence under the Bill.

35. According to SCAHD, the penalties are "in line with other contemporary animal welfare legislation" (paragraph 9). The Executive agreed with that assessment (submission to Rural Affairs Committee).

36. Section 6 enables the court to make a disqualification order against a convicted person, contravention of which would be an offence. Such an order would disqualify an offender from having custody of a dog and could require the offender to pay for the upkeep of the dog by a third party.

37. The penalties appear to be comparable to those in other wildlife protection legislation (for example, section 5(1) of the Wild Mammals (Scotland) Act 1996). As with other legislation, we imagine the courts would normally impose the maximum penalty available only in special cases, including repeat offences or those involving exceptional cruelty. We believe the disqualification provisions are reasonable, in the context of the Bill as a whole. We recognise, in particular, that disqualification is not mandatory and is presumably intended to be used where there would otherwise be a reasonable likelihood of repeat offending.

Resource implications for the criminal justice system

38. According to the Bill's Financial Memorandum, resources devoted to the detection, investigation and prosecution of offences would be "matters for the judgement of the relevant chief constable and the procurator fiscal in the ordinary way, within existing budgets. The Bill envisages no overall increase in central or local funding for those functions ... The Bill may produce a modest saving in relation to policing. At present some resources are devoted to preservation of order between supporters and opponents of mounted hunts, a problem likely to fall away once the prohibition takes effect" (paragraphs 47, 49).

39. The Executive pointed out, however, that any significant demand on the police and "consequent downstream effects on the prosecution service and the courts" would have an impact on existing criminal justice priorities (submission to Rural Affairs Committee).

40. For ACPOS, enforcement of the Bill "might well sit quite low in the level of policing activity when compared with other more pressing demands ... it would require a large amount of resources to enforce it fully. I would not expect chief constables to see it is a major priority at this time." (cols 1725-6).

41. It seems likely that the Bill would have some short-term impact on police and other criminal justice resources. However, we do not regard that as a substantial objection to the Bill.

Conclusion

42. The law enforcement aspects of this Bill are clearly important to the wider question of whether the general principles of the Bill should be agreed to. There is no point in legislating to ban hunting unless that ban can be enforced effectively, fairly and without imposing burdens on the police or the courts that are disproportionate to the benefits the ban is intended to achieve. It is clear from the evidence we have received that there are problems with these aspects of the Bill as it currently stands, although we acknowledge the willingness of the Bill's supporters to address these problems at Stage 2. The majority of the Committee is of the view that those problems are not sufficiently serious to compromise the workability of the Bill as a whole. Although it is beyond our remit in this report to say whether the Bill should proceed in principle, the Committee hopes that this report will be of assistance to the Rural Affairs Committee.

ANNEX C

ORAL EVIDENCE

7th Meeting, 21 March 2000 (Session 1 (2000))

9th Meeting, 4 April 2000 (Session 1 (2000))

23rd Meeting, 5 September 2000 (Session 1 (2000))

25th Meeting, 19 September 2000 (Session 1 (2000))

27th Meeting, 3 October 2000 (Session 1 (2000))

30th Meeting, 14 November 2000 (Session 1 (2000))

32nd Meeting, 21 November 2000 (Session 1 (2000))

33rd Meeting, 28 November 2000 (Session 1 (2000))

35th Meeting, 8 December 2000 (Session 1 (2000))

36th Meeting, 12 December 2000 (Session 1 (2000))

1st Meeting, 16 January 2001 (Session 1 (2001))

5th Meeting, 27 February 2001 (Session 1 (2001))

6th Meeting, 6 March 2001 (Session 1 (2001))

1 Note: The above remit was changed by resolution of the Parliament on 13 December 2000, with effect from 8 January 2001.

2 A Scottish Parliament Information Centre (SPICe) information note on relevant legislation is included in volume 2

3 Official Report Column 604

4 Macaulay Land Use Research Institute (2000), Economic Impacts of a Ban on Hunting with Dogs in Scotland, ISBN 0-7480- 8979-9

5 This is attached to the letter from The Scottish Executive Rural Affairs Department dated 4 December 2000

6 Burns Committee of Inquiry into Hunting with Dogs in England and Wales, June 2000

7 National Farmers Union for Scotland, written submission

8 In written evidence, NFUS quote figures showing that a normal hill farm lamb production may be reduced from 75-80% to 50% where fox predation is bad; whereas the LACS quote losses of lambs to predation by foxes and dogs as being between 3% and 5% of all lamb deaths

9 International Fund for Animal Welfare submission

10 Macaulay Land Use Research Institute (2000) Report

11 Mike Watson's estimate [Official Report column 603]; but note that the International Fund for Animal Welfare suggest that approximately 50,000 foxes die each year including those from natural causes and road accidents [International Fund for Animal Welfare submission, page 11]

12 SSPCA original evidence, paragraph 3(ii)

13 League Against Cruel Sports written evidence

14 Official Report column 1733

15 Official Report column 1374

16 The Protection of Animals (Scotland) Act 1912, Section 1,

17 A SPICe information note on relevant legislation is included in volume 2

18 The Scottish Agricultural Science Agency note of 15 November 2000 outlined the limitations on digging out foxes from rocky, forested and built up areas, and the danger of shooting in built up areas.

19 SSPCA letter 15 January 2001

20 SSPCA letter 15 January 2001

21 SPICe research note RN 01/60

22 See table 8.1 in Macaulay Land Use Research Institute (2000)

23 See paragraph 7.7 of The Borders Foundation for Rural Sustainability Written Submission

24 see chapter 5 of Macaulay Land Use Research Institute (2000)

25 This group met the Committee informally when it visited Dumfries. Its members included a Hotelier, Veterinary Surgeon, Livery Yard owner, Groom, Farrier, Feed Merchant, Agricultural Engineer,and a Chartered Surveyor.

26 SPICe Research Paper 00/04, Protection of Wild Mammals (Scotland) Billwww.scottish.parliament.uk/business/research/pdf_res_papers/rp00-04.pdf, Page 9

27 Letter dated 24 January 2001 from the Scottish Executive Rural Affairs Department

28 Official Report Column 1380

29 League Against Cruel Sports written submission

30 Official Report Column 1494

31 Official Report Column 1378

32 Official Report column 1334

29 MLURI reported that 7 of the hunts remove fallen stock from farmers as a free service, and as feed for hounds (p.15 of Macaulay Land Use Research Institute Report (2000)

34 Macaulay Land Use Research Institute Report (2000)

35 Official Report column 1410

36 Official Report column 1409

37 Official Report column 1346

38 Official Report column 1413

39 Official Report column 1320

40 Official Report column 1416

41 Official Report coumn 1320

42 Official Report column 1320

43 Official Report column 1411

44 Official Report column 1384 - column 1386

45 The Protection of Animals (Scotland) Act 1912, Section 13

46 The Wild Mammals Protection Act(1996), Section 1

47 Protection of Badgers Act (1992), Section 3

48 Protection of Animals (Scotland) Act (1912), Section 13 (b)

49 Supplementary Note from SSPCA (January 2001)

50 Official Report column 1471

51 Official Report column 1450

52 Official Report column 599

53 Scottish Hill Packs Association, written submission, Page 8

54 Official Report column 603

55 Official Report column 1447

56 Official Report column 1407

57 Official Report column 1401 - column 1402

58 Official Report column 1405

59 Official Report column 1402

60 The Committee divided at its meeting on 19th June 2001, see Annex A

61 The Committee divided at its meeting on 1st May 2001, see Annex A
 

 
   
Contents