Citizen Participation and Public Petitions Committee [Draft]

Meeting date: Wednesday, May 1, 2024

Official Report 698KB pdf

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Continued Petitions

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Strategic Lawsuits against Public Participation (PE1975)

Agenda item 2 is consideration of continued petitions. The first of those is PE1975, which is on reforming the law relating to strategic lawsuits against public participation—commonly referred to as SLAPPs. The petition was lodged by Roger Mullin and it calls on the Scottish Parliament to urge the Scottish Government to review and amend the law to prevent the use of strategic lawsuits against public participation.

We last considered the petition at our meeting on 17 April 2024. At that point, we heard evidence from Professor Justin Borg-Barthet, Graeme Johnston, Roger Mullin and Ahsan Mustafa. I again thank our witnesses from that session for their evidence.

This morning, after our various considerations, I am pleased to welcome Siobhian Brown MSP, who is the Minister for Victims and Community Safety; Martin Brown, who is a solicitor with the Scottish Government’s legal directorate; and Michael Paparakis, who is the policy and bill programme manager at the Scottish Government’s private law unit.

I understand that, before we move to questions, the minister wants to make a short statement.

Good morning. Thank you, convener, for the opportunity to talk about strategic lawsuits against public participation—often referred to as SLAPPs. I would like to thank the petitioner, Roger Mullin, for his tireless campaigning work on this matter.

The petition raises important issues and it is helpful to have them discussed in such a forum. The committee will be aware that the Scottish Government recently introduced reforms to our law of defamation, which took steps towards further protecting freedom of expression.

Although SLAPPs are typically framed as defamation cases brought by wealthy individuals or corporations to evade scrutiny in the public interest, they can occur across a broad spectrum of issues, including data protection, privacy and environmental law.

Since Parliament considered the law of defamation, significant steps have been taken elsewhere in the United Kingdom and in the European Union. In England and Wales, the UK Government has given its support to a private member’s bill that will widen the scope of the limited anti-SLAPP legislation that is already in place. At EU level there is a recent directive, and the Council of Europe has recently adopted a recommendation on countering SLAPPs.

For those reasons, it is important that we make progress on the issue. I am pleased to say that we will consult on SLAPPs later this year. It seems to me to be both timely and sensible to consult on the issue of SLAPPs specifically in the context of Scots law. My officials have already had helpful engagement with stakeholders, and I will ensure that that continues throughout the consultation process.

I welcome any questions that you or other committee members might have.

Thank you, minister. That is encouraging. If I look over your shoulder, I can see the petitioner, who is in the public gallery this morning and will, no doubt, be pleased to hear that, too.

I was trying to understand the pathway. At our last meeting, having read the previous submissions that we had received, I noted an understanding that, given that Scots law is rooted in different traditions and precedents to law elsewhere in the UK, the assumption underpinning the petition—that there would be tourist destination travel to Scotland for such litigation—was perhaps more of a theory than a determined outcome. The Scottish Government’s thought process at that point was that it would prefer to be in a slightly reactive position if that happened rather than in a proactive position simply because it might happen, given everything else that the Government has to consider. Was that part of the thinking? Has the fact that action has now been taken in other jurisdictions compounded the potential risk—which might otherwise have been theoretically less likely but is now potentially more likely—that such litigation could occur, meaning that the Government perhaps feels that it needs to take more decisive and direct action on the matter, proactively rather than reactively?

Yes, absolutely. When my predecessor in post originally wrote to the committee, and when the petition was first lodged, the legislation was under review. However, as I said in my opening statement, there has been quite a significant development in the past couple of months, which is why we think that it is quite timely that we move forward with consultation.

Thank you. Given that that is the case, our questions might be quite focused and to the point. I do not think that we are pushing a stone up a hill, in the sense that the Government appears to have accepted the argument. However, it would be interesting to explore some of the issues underpinning the need for all of this.

Good morning to the minister and her colleagues. Will the minister outline what discussions have been had at meetings of the UK-wide SLAPPs task force on co-ordinating non-legislative action against SLAPPs?

The task force includes representatives from the UK Government and the EU, and I know that Scottish officials are part of it, too. By itself, legislation would not address all the potential issues that SLAPPs raise. There needs to be more of a holistic approach, which is why we are working with the task force.

What wider monitoring has been carried out of the impact of the use of SLAPPs in Scotland?

I will bring in Michael Paparakis to answer that question.

As, I think, the committee heard a couple of weeks ago, SLAPPs are difficult things to measure. I understand that academics at the University of Aberdeen are undertaking survey work to understand the wider picture, but most evidence tends to be anecdotal rather than quantitative data.

We are aware of the issues that stakeholders have raised both here, at the committee, and generally. Some cases were presented at an anti-SLAPP conference in Scotland in the middle of February, so we are certainly aware of instances that stakeholders would suggest are SLAPPs. That is another reason why the Scottish Government has decided to consult on the issue. There is a perception that such action is currently happening in Scotland and that we should move things forward.

Thank you. I have no further questions.

If I might pursue the theme of that last question, convener, is it not the case that there is no doubt whatsoever that SLAPPs are a huge problem and that the number of SLAPPs raised or threatened is enormous? We have heard that time and time again in evidence from lawyers who practise in that area. Earlier this morning, I was reading Graeme Henderson’s submission to the Scottish Law Commission from some years ago. It referred to the huge number of interdict cases that never come anywhere near court because the pursuer—or, more often, the petitioner, because such cases are usually heard in the Court of Session—is financially so much less strong than the defender that they have not a cat’s chance in hell of affording the litigation. That is the whole point.

The Government must surely accept that that is a serious problem, which it cannot measure simply by counting the number of cases that go to court. You must know that, like an iceberg, most of the picture is submerged. You cannot measure it exactly, because there is no record of cases such as those of an oligarch who owns a Russian oil company or a mine owner from Kazakhstan—to pick two of the litigations that are quite prominent in the history of SLAPPs. I just want to establish, minister, that you accept that this is a very serious problem.

Will you answer a further question? It is good news that you have agreed to consult. We all recognise that. However, this is an ancient petition—it is becoming the pensioner of petitions. I am a pensioner myself, so I should not be rude about them, but it is not acceptable that these matters just go on and on. My questions to you are these. Can you say that the Government is supportive of taking action and not just that you will conduct a consultation? Can you say when the consultation paper will be issued? What is your target date? Is it July? Alternatively, is the answer a vague one—“sometime never”—in which case, we might be back here in a year, perhaps with another minister?

Yes, we do take it seriously. Globally and historically, there has been evidence that SLAPPs have been an issue. As I said, we have seen action being taken in Europe and the rest of the UK, so it is time for the Scottish Government to act on the matter. I take your point that this is an old petition, but we are moving forward. Consultation will happen this autumn, but I cannot give a specific date at this time. It will run for 12 weeks, and then we will look at the responses and take it from there. I cannot predict what the Cabinet might suggest regarding legislation.

Convener, that reply is as much as I could reasonably ask of any minister, so I am grateful for it. Minister, if you want a useful form of words to ensure that you are never really on any particular hook as to the timescale within which you do something, the legal terminology is, “We will do it on or around between X.”

Thank you.

That is just some free advice. [Laughter.]

09:45  

All of which is noted.

I point out that the petition was launched in September 2022, which makes it something of a teenager in our schedule of petitions. If that is a pensioner petition then, by that definition, some of our petitions are out of the Jurassic period.

You are endowed with greater quantities of patience than me.

That remains to be seen. Thank you, Mr Ewing.

Do any other colleagues wish to come in?

I am interested in the motivation behind the consultation. Is that a result of this petition or of the Scottish Government’s policy of ensuring continuity with EU law? Can you explain that?

The petitioner was there when my predecessor wrote to the committee to say that the petition was under consideration. We have seen definite progress being made in the EU and in the UK in recent months, and in the private member’s bill going through. That is why we decided to take action. We will go out to consultation in the autumn.

Is the minister concerned about the potential time lag between developments elsewhere and those in Scotland and about how that could expose Scotland to SLAPPs?

Not at the moment. I will keep the committee updated on that. I know that that is still in the early stages of going through the EU and through the UK Parliament. It has not passed yet or gone to the House of Lords, so I have no concerns at this stage.

Do you have ideas about the scope and form of the consultation? Do you know what you intend to bring forward or how will mirror what has been done by other jurisdictions that have introduced such legislation?

We will engage with all the jurisdictions that have introduced legislation and will work with stakeholders.

Michael Paparakis may want to add something.

At this stage, there is no set information about what the consultation will contain.

As the minister said, there is UK legislation, an EU directive and other items that might suggest possible questions for the consultation.

Is it likely that the issue of public education about SLAPPs will be included in the consultation? Can you tell the committee about that?

It is worthy of consideration.

I am pretty sure that the minister has studied the previous evidence session. Mr Mullen and others made the point that, in its response to the petitioner’s arguments, the Scottish Government has mostly referred to the Defamation and Malicious Publication (Scotland) Act 2021. However, as Mr Mullen pointed out, that is not the only type of SLAPP. SLAPPs can cover other types of action, and it would therefore be wrong to assume that only the law of defamation is in play. That is probably the main topic, but it is not the only one. Can the minister confirm that the consultation will fully cover that?

Yes, we will cover every aspect.

I have one last question. One of your predecessors made a reference that I thought was really not apt, which was that it does not really matter because the cost of pursuing an action in the sheriff court is only £25,000. Argument A is that that is £25,000 more than most people have got to pay for a court action and that most people therefore cannot afford that amount, so the idea that people would be able to afford such a sum is ludicrous. Argument B is that almost all of those actions will be raised by way of an interdict in the Court of Session anyway, so it is completely irrelevant to look at the cost of the sheriff court.

I do not raise that to be smart or to criticise anyone, but does the Government accept that that argument should be pushed to one side? The cost of action in the Court of Session is colossal. We are talking about hundreds of thousands of pounds, and no individual, unless they are a millionaire or a multi-millionaire, will go to court. Having practised law for 20 years, I know that. People will not go to court even if they think that they have a cast-iron defence. That is the whole point. It does not really matter whether brilliant defences are set out, as was the case in the Defamation and Malicious Publication (Scotland) Act 2021. That was a good piece of legislation in that regard, as it created a range of defences and protections, but they are not good enough to protect against the real mischief here, which Mr Mullin and his colleagues have clearly pointed out.

I just put that thesis to the minister to get some reassurance for the petitioner that the consultation paper will not duck those questions and that it certainly will not repeat that particular argument.

Absolutely. I saw the correspondence that mentioned the figure of £25,000. I think that, when I spoke to my officials about that, it was in the context of UK-wide litigation.

I have looked at legal aid and, as you know, it can be considered on a case-to-case basis if anyone wants to pursue in that way. However, I totally accept your point and your comments on that issue.

I think that I agree with the first part of that. On the second part, there is no legal aid for defamation.

I have been told that the board can consider it on a case-by-case basis.

Can they can consider it? If so, I stand corrected.

I can double-check that.

I thought that the chap from the Law Society in our last meeting said there was no legal aid.

Legal aid is available on a case-by-case basis and according to circumstances.

Well, it is still pretty dubious. Most people will not get legal aid if they have even a relatively small amount of capital tied up.

In any event, I think that your answer is satisfactory—thank you, minister. I have not said that for a while.

We can agree on that point.

Minister, thank you very much. We do not need detain you any longer. I think that the petitioner’s aims are potentially in hand and can be resolved. I am grateful to you for that and for joining us with your colleagues this morning.

Thank you. I am happy to keep the committee updated as we progress.

I would be very grateful for that.

09:51 Meeting suspended.  

09:53 On resuming—  

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Cohabiting Couples (Division of Assets on Separation) (PE1973)

Welcome back. We continue our consideration of existing petitions. PE1973, on ending the use of sheriffs’ discretion when ruling on civil cases and providing clear legal guidance on the division of assets, was lodged by Sandy Izatt. The petition calls on the Scottish Parliament to urge the Scottish Government to review the Family Law (Scotland) Act 2006 and to provide greater clarity on the division of assets in cases of cohabiting couples who are separating by removing the use of sheriffs’ discretion rulings in civil cases; providing clear legal guidance to the Law Society of Scotland on the division of assets for cohabiting couples; allowing appeals to be heard when it is determined that a sheriff has the rule of law wrong but has used their discretion to prevent an appeal, at no cost to the appellant; and publishing information on what resources have been allocated to provide clear legal guidance.

We last considered the petition on 6 September 2023, when we agreed to write to the Scottish Government. We have received a response from the Minister for Victims and Community Safety—who was just with us—in which she wrote that she was “unable to provide” an anticipated timescale for introducing a bill on cohabitation. The minister confirmed that Scottish Government officials were beginning “detailed work” on the Scottish Law Commission report on cohabitation, including an assessment of whether it would be helpful for the Government to consult on the commission’s recommendations.

We have also received a submission from the petitioner, who expressed his concern about the vagueness of the information that we have received on the issue and highlighted his continued concern about the use of sheriffs’ discretion in preventing appeals.

In the light of what we have heard about the petition’s progress—the Government will move forward but does not know when it will do so, and the petitioner feels that matters remain a little vague—what are committee members’ views?

In the light of the Scottish Government’s response, I wonder whether the committee would consider closing the petition under rule 15.7 of standing orders on the basis that Scottish Government officials have begun detailed work on the Scottish Law Commission’s report on cohabitation, which will include an assessment of whether it would be helpful for the Scottish Government to consult on the commission’s recommendations in that area. The petitioner could always bring the petition back if he was not happy with the findings.

I agree with Mr Torrance’s recommendation. I reassure the petitioner that the point that he has raised is an extremely valid one. Given that we will be closing the petition today, I repeat for his benefit what I might have said in a previous meeting. I played a part in proceedings on the bill that became the Family Law (Scotland) Act 2006. The act is extremely vague about the division of property between unmarried couples who live together, in effect, as man and wife, because it does not incorporate the very detailed provisions in the Family Law (Scotland) Act 1985 that apply for divorce. Those very detailed rules contrast markedly with the complete vacuum of rules in the 2006 act. To be fair to me, I made a speech to that effect at stage 3 in which I said that we did not really know what we were doing, and we did not provide sufficient clarity.

Any petitioner whose petition is closed will always feel a bit disappointed, but the petitioner has done a good job in raising an important topic. I feel slightly uneasy that the Government has not given a clearer commitment, and I hope that it will bear that in mind. Perhaps we could write to the Government to say that we feel that that is the case. There needs to be clarity, with the Government being more specific about when the corrective work will be done, whether that is through one of the devices that Mr Izatt mentioned or through primary legislation, which I suspect will probably be necessary.

Thank you very much for that, Mr Ewing. I think that that is correct.

It is open to us to write to the Government to say that we are closing the petition on the basis of good faith, given that the Government has said that it will progress the issue. It would be helpful to try to tie it down to a more specific timeline.

I thank Mr Izatt very much for bringing an important petition before the committee. In the event that no progress is made, it would be open to him to lodge a fresh petition. As matters stand, the committee has taken the issue as far forward as we can, given the Government’s response and assurance. Are members content to proceed on that basis?

Members indicated agreement.

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A890 (Adoption as Trunk Road) (PE1974)

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A832 (Adoption as Trunk Road) (PE1980)

Our next petitions, which were lodged by Derek Noble, are coupled. PE1974 calls on the Scottish Parliament to urge the Scottish Government to adopt the A890 as a trunk road and to resolve the safety problems associated with the Stromeferry bypass, and PE1980 calls on the Scottish Parliament to urge the Scottish Government to adopt the A832 between Achnasheen and Gorstan as a trunk road, thereby connecting that route to the existing trunk road network.

We last considered the petitions at our meeting on 6 September 2023, when we agreed to write to the Minister for Transport, who is now the Cabinet Secretary for Transport. The cabinet secretary has responded to our request for clarity by stating that the strategic transport projects review 2

“considered local roads to be ‘out of scope’ unless they provided direct access to a major port or airport; linked to a nationally significant National Planning Framework 4 (NPF4) development site; or where a local road intersected a trunk road where bus priority or active travel measures were proposed.”

The cabinet secretary has said that it was considered that

“neither the A890 or A832 met these criteria for consideration as part of the strategic transport network and were duly not included as part of the appraisal or STPR2 final recommendations.”

We have been joined by Rhoda Grant. The committee is wrestling with a fairly direct response to the aims of the petitions from the cabinet secretary, but we would be happy to hear anything that you might like to say.

10:00  

I am grateful to the committee for giving me the opportunity to speak, and I am grateful to Derek Noble for pursuing PE1974.

I share the committee’s disappointment at the cabinet secretary’s response, because it repeats what has been said before. It takes no notice of the fact that residents on the other side of the Stromeferry bypass need to cross the bypass for hospital care and secondary education and to support the economy of the area. That is a major issue on the road. The alternative route takes six hours, and that cuts off the area’s economy. It means that someone would get to Glasgow and Edinburgh sooner than they would get to their local hospital. It is a 130-mile detour. You have to go all the way back to the east coast to come back west again. The Scottish Government’s response is so disappointing, because it just seems to be saying no, despite the evidence, and there is no right of appeal.

In a way, the response adds insult to injury by talking about priority bus routes and cycle lanes, because there are no buses other than the school buses, and a cycle lane would take up the total width of the road. There is no option to put those things in place. Money is available for that, but there is no money available for the very basics.

I have some figures from 2017. The costs varied from £37 million to £129 million. Using the Scottish Parliament information centre’s inflator, I note that those costs would now be £46 million to £159 million, but we know that the costs of roads and inflation are much greater than that. Even if we took the figure of £159 million, Highland Council received £33.6 million of capital funding this year. How many years using its full capital budget allocation would it take for it to fix the road? It is absolutely not feasible.

The Scottish Government’s response has basically said to those communities that it is tough, that Highland Council cannot afford to do the work because the Government does not fund it adequately and that it is washing its hands of the whole situation. That is not a sustainable position.

I ask the committee not to close the petition but to look at another option to appeal to the Scottish Government to work with Highland Council to try to find a funding option that would allow the road to be improved. It will take the Scottish Government to provide Highland Council with that funding or ways of accessing it.

The Government might also want to involve Network Rail. We are talking about the road, but the rail line is just beside the road. The road saved the rail line, to an extent, after the most recent major rockfalls. In fact, the rail line was used as a temporary road to avoid the long detour. However, if the Government is washing its hands of this, it is only a matter of time. When there is a big rockfall, the road will close and there will be nothing to protect the rail line. We could lose both the road and the rail connection. I do not know whether the committee has spoken to Network Rail to see whether it has similar concerns. Could that help with some of the capital funding?

Highland Council provides some capital funding. I know that it is struggling at the moment, but all three bodies could look at the problem. If we are looking to Highland Council to sort it out, it would take its capital funding for the best part of a decade. That is just not going to happen.

Thank you. You make a very powerful case in respect of the petitioner and the aims of his petitions. The issue that the committee must wrestle with is the—as you have said, profoundly disappointing—closed door that was presented to us by the Scottish Government.

Mr Ewing, are you indicating that you have thoughts on the matter?

I do not think that there is anything further that we can do. I have much sympathy with the points that Rhoda Grant made about the practical difficulties that Highland people face in general. There has been no suggestion of a solution. I am not sure that Network Rail is likely to provide an answer, although I am sure that Rhoda Grant can take that up. Our experience in writing to Network Rail is that you do so more in hope than expectation, simply because its budget is committed for a long period in advance in respect of existing programmes, as is the roads budget.

I do not see that there is much more that the committee can do, other than to close the petitions under rule 15.7 of standing orders, on the basis that the Scottish Government has said that there are no current plans to undertake a formal review of the trunk road network. The Scottish Government does not consider that the A890 and the A832

“meet the criteria to be incorporated into the strategic motorway and trunk road network”.

The Scottish Government has said that local roads are considered to be out of scope

“unless they provided direct access to a major ... airport; linked to a nationally significant National Planning Framework 4 (NPF4) development site; or where a local road intersected a trunk road where bus priority or active travel measures were proposed.”

It is the Government’s view that the

“Principal A Class roads are best managed locally rather than centrally”

and that the A890 and A832 belong in that category

“as main roads which distribute traffic to and from the strategic trunk road network.”

I am merely stating the Scottish Government’s position. My view is that we need to do far more, as Rhoda Grant has rightly said, and that other methods of funding should be considered. I agree with that.

My last comment, perhaps in the light of the departure of two ministers from office last week, is that, with regard to overall priorities, we could spend more of the £60 billion of expenditure that we have in Scotland on upgrading roads. After all, unless you are a Tour de France cyclist, active travel on a bike is not really much use for the situations that Rhoda Grant described. However, that is perhaps a topic for another day.

That was a powerful presentation from Rhoda Grant. Can we ask the Scottish Government whether it will work with local authorities, because so many hours are involved? Could we suggest a visit to the area by the committee?

I was going to suggest that, if we take forward Mr Ewing’s proposal to close the petitions, we couple that with writing to the Scottish Government to, as well as confirm our decision, summarise the practical consequences that Rhoda Grant detailed quite accurately and encourage the Government to consider the option of bringing together parties to advance a bespoke solution, rather than simply, as it has done, refusing to entertain further consideration of the idea.

I do not think that there is any dramatic action that we can take, but we could embrace Rhoda Grant’s suggestion by writing to the Government at the same time. Does that meet the committee’s approval?

If we close the petitions, we will be saying to the Government that the matter is closed. We will not be giving the Government the option to look at the possibility of working with the council or to come up with other solutions.

The Government has given a clear direction on its position. As a committee, we have to be satisfied that we have a realistic opportunity to advance matters. I am not persuaded that we have, but Rhoda Grant’s testimony on the consequences will be on the official record of the Parliament. The committee is prepared to summarise that view unanimously and express it to the Government, with the hope that it might take further action. That is not our normal way of doing things, but we would be putting in place, by exception, a consequential action.

I do not find that easy but, given the volume of petitions that we have to consider, we have to be satisfied that there is a real prospect of advancing matters. We have other petitions that Rhoda Grant is concerned with and for which there might be greater prospects.

The circumstances are appalling, but I thank Derek Noble for bringing the petitions before us. Obviously, we will see whether anything at all comes from our action, but, regrettably, I feel that that is the position that we are in.

Do members agree to take that approach?

Members indicated agreement.

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Holiday Let Accommodation (Rates Relief) (PE2019)

PE2019, which was lodged by Alan McLeod, calls on the Parliament to urge the Scottish Government to prevent all owners of self-catering holiday accommodation from obtaining rates relief under the small business bonus scheme. We last considered the petition on 28 June last year, when we agreed to write to the Scottish Assessors Association, the Holiday Home Association, the Association of Scotland’s Self-Caterers and the Scottish Government.

We asked the Scottish Government whether it would consider adding self-catering holiday accommodation to the list of properties that are unable to qualify for the small business bonus scheme. Its response outlines the current arrangements for self-catering holiday accommodation but does not provide any indication of its position on the petition. Its submission notes that a consultation on council tax for second and empty homes invited views on the thresholds that apply for self-catering accommodation to be liable for non-domestic rates, and that the responses were being analysed at the time of the submission.

I am very disappointed in the Government’s response. What is the point of sending us a response that is almost like a public information leaflet but does not address in any way, either positively or negatively, the ask of the petition and the question that we put? I would therefore like to go back to the Government in a direct way and say that the committee does not at all appreciate receiving a statement that we could reasonably have downloaded from the internet; we are asking about an instrument of future policy relating to the ask of the petition; and we would appreciate the Government’s views on the petition as put.

I endorse everything that you have said. There is nothing in that submission to say whether the Government is for or against the petition. We are left in limbo. We should definitely go back to the Government and ask it whether it supports the petition and, if not, why not.

We would much prefer that to a cut and paste from the internet.

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Fertility Treatment (Single Women) (PE2020)

PE2020, which was lodged by Anne-Marie Morrison, calls on the Scottish Parliament to urge the Scottish Government to provide the same fertility treatment to single women as is offered to couples on the national health service for the chance to have a family. We last considered the petition at our meeting on 28 June 2023—several petitions have come back from that date—when we agreed to write to the Fertility Network Scotland, the British Fertility Society, Fertility Scotland and the national fertility group.

The national fertility group responded to the committee in October, informing us that, at its most recent meeting, which took place in late August 2023, it received an update from Public Health Scotland on the modelling work that it is carrying out to help the group better understand the capacity implications of any future expansion of NHS in vitro fertilisation treatment for single people. At the time of the group’s submission, specific timetables could not be given for the completion of that modelling work or subsequent consideration.

The petitioner has provided a written submission, in which she highlights the support for petitions like hers across the UK. She describes the inability of a single person to access fertility treatment on the NHS in Scotland as biased and discriminatory.

Do members have any comments or suggestions for action?

In light of the evidence that we have received, I wonder whether the committee would consider writing to the national fertility group to seek a further update on its consideration of the capacity implications of any future expansion of access to NHS IVF for single women, and to ask how it might consider expanding the criteria for in vitro insemination to single people.

I agree. We could also write to Public Health Scotland to seek an update on its modelling work on the timescales that it anticipates for completion.

We should keep the petition open and seek further explanation of what progress is being made in that regard. It all looks a bit piecemeal and of secondary consideration, but women in Scotland should not feel that they are subjected to bias or discriminated against compared with those elsewhere in the United Kingdom. Are colleagues content to proceed on that basis?

Members indicated agreement.

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St Kilda Sheep (PE2021)

My voice has been a little shaky today and I now have a lot to say about sheep. Please bear with me.

Our next continued petition, PE2021, on ensuring that the definition of protected animals in the Animal Health and Welfare (Scotland) Act 2006 applies to the sheep on St Kilda, was lodged by David Peter Buckland and Graham Charlesworth. The petition calls on the Scottish Parliament to urge the Scottish Government to clarify the definition of protected animals, as contained in the Animal Health and Welfare (Scotland) Act 2006 and the associated guidance, to ensure that the feral sheep on St Kilda are covered by that legislation, enabling interventions to reduce the risk of winter starvation and the consequential suffering of the sheep.

We last considered the petition at our meeting on 28 June 2023, when we agreed to write to the National Trust for Scotland, the St Kilda Soay sheep research project, NatureScot and OneKind. I am pleased to say that we have received responses from all those organisations, copies of which are included in our papers for today’s meeting.

The animal welfare charity OneKind expressed concern about the welfare of the sheep on St Kilda and suggested that it is necessary to clarify the status of the sheep in order to establish what level of protection they should be afforded, and by whom. OneKind’s response also suggests that, given that there is no option for the sheep population to disperse, there is a moral obligation to address the high levels of winter starvation but cautions that any proposals to reduce levels of winter starvation should be subject to animal welfare impact assessments.

Researchers from the Soay sheep research project state that there is no clear biological evidence that the sheep are meaningfully different from other wild mammal populations and go on to note that wild animals often die in large numbers as a result of natural processes, including starvation and exposure to harsh weather, but that, in most cases, those deaths are unseen. The researchers also suggest that measures to manage winter mortality, for example through a large-scale regular cull, could have welfare implications for the remaining sheep.

The response from the National Trust for Scotland highlights the fact that the retention of wild traits in the Soay sheep population has allowed for their survival in the often harsh conditions of the archipelago. The trust follows Scottish Government advice that the sheep should be regarded in the same way as unowned and unmanaged animal populations such as wild deer. Although there is a presumption against intervention, the trust notes that it might consider intervention in exceptional circumstances in response to animal welfare needs.

Although NatureScot’s remit does not specifically cover animal welfare, its response notes that any change to the guidance on the Animal Health and Welfare (Scotland) Act 2006 would be likely also to apply to feral goats and feral cats, potentially leading to unintended consequences if landowners decided to remove populations of feral livestock from their land rather than taking on the burden of their welfare.

Those are the responses from the organisations to which we wrote.

We have also received two submissions from the petitioners, the first of which addresses the responses that we have received—and to which I have just referred—and notes the importance of clarifying whether the Soay sheep are to be considered wild or feral. The petitioners also make a comparison with the winter starvation of cattle and horses in Oostvaardersplassen in the Netherlands, where, similar to the situation on St Kilda, the feral animals have no predators and cannot disperse or migrate. In that case, images of starving animals led to public outrage and welfare interventions were rapidly introduced.

The petitioners’ most recent submission disputes the validity of the information that has been provided by the National Trust for Scotland and invites us to request sight of the correspondence between the trust and the Scottish Government in relation to the status of the Soay sheep.

We have also received a submission from Dr Mary Harman, offering further information on the history of the sheep on St Kilda, noting accounts by the archipelago’s inhabitants of the sheep being used for food and suggesting that a number of ram lambs would have been castrated to reduce fighting and to limit the population.

We have a fairly comprehensive set of responses, including two challenging additional responses from the petitioners, on an issue of major concern about wildlife conservation on St Kilda. In the light of all that, do members have any comments or suggestions for action?

I wonder whether the committee would consider keeping the petition open and writing to the Scottish Government to highlight the evidence that the committee has received and to ask whether it will review the existing legislation and guidance and consider using the provisions in the Animal Health and Welfare (Scotland) Act 2006 to introduce regulations and updated guidance to ensure the welfare of the unique sheep population on St Kilda. We could also request that the Scottish Government provides the full text of its June 2009 communication with the National Trust for Scotland or that it clearly sets out the reasons for not releasing that correspondence in full.

That seems very sensible and consistent with the suggestions that have been made by the petitioners. Are committee members content to keep the petition open and proceed with it on that basis?

Members indicated agreement.

I am not sure whether one of the petitioners is with us today—I wondered whether I recognised him. Yes, he is in the gallery. Forgive my eyesight—you are as far away from me as it is possible to be, but I thought that you might be here. I hope that you are pleased that we have decided to keep the petition open. In the light of your responses, we will pursue the actions that you have suggested.