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Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill

Overview

The Bill amends various animal welfare and wildlife crime legislation.

It aims to increase penalties for serious animal welfare and health offences. It will also increase penalties for wildlife crime. 

It will: 

  • introduce fixed penalties animal welfare and health offences
  • hold anyone accountable who deliberately causes harm to a service animal
  • increase fines and/or custodial sentences in relation to certain wildlife offences

Inspectors and constables will be able to act on animal welfare issues. An offence does not need to have taken place. They will not need to wait for a court order. This will allow them to ease the suffering of animals.

This means they can:

  • administer treatment to sick or injured animals
  • transfer to animal welfare facilities
  • euthanise animals 
  • rehome animals

You can find out more in the Explanatory Notes document that explains the Bill.

Why the Bill was created

In recent years there have been some extreme animal cruelty cases which have caused public upset. The public support the courts having more options to make the punishment fit the crime. 

Fixed penalty notices can deal with minor animal welfare offences. These are quicker and less costly to administer than going to court. This could also be a deterrent against committing these crimes. 

Sometimes animal inspectors/constables need to remove an animal to protect their welfare. They will not need court permission to remove an animal. This avoids delays which could affect the welfare of these animals. 

Anyone who injures a service animal will be accountable for their actions. This follows a campaign called Finn's Law. 

 

You can find out more in the Policy Memorandum document that explains the Bill.

Where do laws come from?

The Scottish Parliament can make decisions about many things like:

  • agriculture and fisheries
  • education and training
  • environment
  • health and social services
  • housing
  • justice and policing
  • local government
  • some aspects of tax and social security

These are 'devolved matters'.

Laws that are decided by the Scottish Parliament come from:

Bill stage timeline

The Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill became an Act on 21 July 2020

Becomes an Act

Introduced

The Scottish Government sends the Bill and related documents to the Parliament.

Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill as introduced

Scottish Parliament research on the Bill 

Financial Resolution 

The Presiding Officer has decided under Rule 9.12 of Standing Orders that a financial resolution is not required for this Bill.

Stage 1 - General principles

Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.

Have your say

The deadline for sharing your views on this Bill has passed. Read the views that were given. 

Committees involved in this Bill

Who examined the Bill

Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.

It looks at everything to do with the Bill.

Other committees may look at certain parts of the Bill if it covers subjects they deal with.

Who spoke to the lead committee about the Bill

Video Thumbnail Preview PNG

First meeting transcript

The Convener (Gillian Martin)

Welcome to the Environment, Climate Change and Land Reform Committee’s 28th meeting in 2019. I remind everyone to switch off their mobile phones or put them on silent as they may affect the broadcasting system.

Under agenda item 1, we will hear from Scottish Government officials on the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill. I am delighted to welcome Leia Fitzgerald, wildlife management team leader, wildlife management and biodiversity unit; Grant McLarty, solicitor, animal health and welfare branch, directorate for legal services; Hazel Reilly, solicitor, forestry, natural resources and climate change, directorate for legal services; and Andrew Voas, veterinary head of animal welfare, animal welfare branch. Thank you for coming in. Will one of you set out the context for the reforms that are proposed in the bill and provide an overview of the scale of the challenge relating to animal welfare offences?

Andrew Voas (Scottish Government)

On animal welfare offences, we include information in the financial memorandum about convictions over the past 10 years. During that time, there have been 773 convictions for animal cruelty or animal fighting offences, with 41 custodial sentences and 147 community sentences; the remaining convictions resulted in fines.

We should bear it in mind that convictions are not necessarily a direct measure of offending behaviour, but they give an indication of it. To give the issue perspective, with 41 custodial sentences over 10 years, you could say that, on average, every year there are four very serious animal cruelty or animal fighting offences that have resulted in custodial sentences. Obviously, those offences have raised a lot of public concern because of their very serious nature. There have been sickening examples of sadistic or depraved behaviour. Unfortunately, we have seen cases involving animals such as dogs being tied to a tree, covered in petrol and set on fire. There have been more recent cases involving puppy farming or animal fighting that have been truly appalling. Such offences are relatively rare, but they create a lot of understandable public concern.

On the overall direction of travel, we are concerned about some new developments, such as in the puppy trade. That has gone on for a while, but we are aware that it is a serious problem and that organised crime groups are involved in importing animals.

The Convener

Do you think that such things have escalated because the penalties have been too low?

Andrew Voas

I would not necessarily say that there is a direct cause-and-effect relationship, but that is possibly true. We have heard reports that, because of the penalties involved, organised crime groups might consider things such as illegal puppy dealing or puppy importing to be relatively low risk compared with other criminal activities, such as dealing in drugs or firearms. That view has certainly been expressed.

The Convener

Okay. The bill is about penalties, not new offences. Is that correct?

Andrew Voas

Yes, that is correct. The bill is focused on increasing penalties for existing offences, introducing fixed-penalty notices and looking at powers for enforcement authorities relating to taking animals into possession. It is about penalties and powers; it is not about creating any new offences or any new areas of responsibility.

The Convener

Powers will also be given to people who recover animals. Currently, animals have to be kept for the duration of any court proceedings. There is a change there.

Andrew Voas

Yes. The powers in the Animal Health and Welfare (Scotland) Act 2006 allow enforcement authorities to take animals into possession if they are suffering or are likely to suffer. Currently, a court order is required to allow those animals to be moved out of their possession. The bill proposes a new procedure that will remove the need for that court order, so the procedure should be more straightforward and swifter.

The Convener

So animals could be rehomed or sold on.

Andrew Voas

Yes. They could be more swiftly rehomed or sold on.

Finlay Carson (Galloway and West Dumfries) (Con)

On the fines for puppy trafficking, you mentioned puppy trafficking not being regarded as being in the same group as drug dealing, for example. However, a litter of puppies could be worth £10,000, £15,000 or £20,000. I know that we are looking at potentially unlimited fines, but what are the maximum fines that have been imposed until now? Is it likely that the fines that are imposed as a result of the bill will be substantially greater?

Andrew Voas

The fines that are imposed will, of course, be a matter for the courts. The bill’s purpose is to give the courts the flexibility and additional powers that, in some cases, they have asked for to deal with the most serious offences. Currently, a potential fine for unnecessary suffering is £10,000. That will be changed to an unlimited fine for the worst cases of animal cruelty. [Interruption.] I am sorry: the figure is £20,000. I have been corrected.

The Convener

I am sorry, but would you say that again?

Andrew Voas

The existing maximum available fine for section 19 offences is £20,000.

The Convener

That could become unlimited.

Andrew Voas

It would become unlimited.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

An issue arose there. I presume that the Proceeds of Crime Act 2002 would enable the state to recover the profits that large dealers made.

Andrew Voas

Yes. The Proceeds of Crime Act 2002 certainly applies, and it has been used.

Stewart Stevenson

That is fine. I simply wanted to put that on the record. Thank you.

My interest is in how fixed-penalty notices work. It might be useful to hear from Grant McLarty—I am not sure; it is up to you guys—about whether the acceptance of a fixed-penalty notice creates a criminal record. What would happen to the person? That is a general question about fixed-penalty notices. Are there any differences in that regard with the fixed-penalty notices that are proposed in the bill?

Andrew Voas

Let me deal with that question in general terms; Grant McLarty can give more information if necessary. The bill is intended to create the powers to enable fixed-penalty regimes of different types to be introduced in future regulations. At this stage, we are not getting into detail about exactly which FPN regime will be appropriate in individual circumstances. The bill asks for powers that are sufficiently flexible to allow us to introduce in future regulations FPN regimes of different types for different circumstances.

Stewart Stevenson

We are talking about fixed penalties for minor and technical offences. I can sort of understand “technical”, but what might “minor” mean in this context? You might need to give the committee an example.

Andrew Voas

It will be a requirement that FPN regimes apply only to offences that have a maximum penalty of up to six months’ imprisonment and a fine at level 5 on the standard scale, which is currently £5,000. They will certainly not apply to offences for which there are higher penalties.

In practical terms, we see the need for FPN regimes in relation to, for example, offences that do not necessarily involve harm to individual animals, in the context of our attempts to improve overall compliance with legislation to benefit animal health and welfare more widely. For example, we are planning to introduce legislation to require licensing of animal sanctuaries and rehoming centres and to modernise licensing for dog breeding and pet sales, and there might be paperwork offences, such as not applying for a licence or not holding one, which would not necessarily involve an animal being harmed. It is important that overall compliance with the regulations is achieved.

Stewart Stevenson

I understand that, up to now, fixed-penalty notices have, in essence, been levied on individuals. The example that you gave suggests that it might be possible to levy an FPN on a corporate entity. Some animal sanctuaries are all about an individual, but many of the larger ones are corporate entities and charities. Is it envisaged that fixed-penalty notices will be levied on such bodies?

Andrew Voas

As I said, at this point we are interested in getting the powers to introduce appropriate FPN regimes in future. In future, we will be able to consider the detailed, technical questions of how FPN regimes will operate and on whom penalties could be levied. I think that, in principle, FPNs could be levied on corporate bodies and legal persons as well as on individuals.

Stewart Stevenson

The consultation on animal health is still open, but you have brought forward proposals in that regard. I accept that proposals will be implemented via secondary legislation, but the approach seems slightly unusual. Are you anticipating the results of the consultation? Will you use the results to amend the bill at stage 2?

Andrew Voas

This is partly about the timing of the consultation on animal health. There have been initial discussions with local authorities, primarily about the principle of fixed-penalty notices for animal health offences, and there is a clear desire to introduce FPN regimes for animal health offences, and a need to have the ability to do so. That is why there is provision for animal health FPNs in the bill.

The purpose of the consultation is really to go into a bit more detail about what sort of FPN regimes would be appropriate for animal health. As local authorities will be involved in administering such regimes, a lot of the arguments and considerations in that regard are probably similar to the ones about FPN regimes for animal welfare. That is why we thought that it was justifiable to include in the bill a general provision, which could be refined after the results of the consultation are known. The consultation will close on 23 December and we hope that an analysis of the results will be available early next year.

The Convener

A bill such as this one is about preventing cruelty or harm to animals. That is what we want to achieve. Has there been any analysis of how crimes of the type that you mentioned have reduced as a result of penalties like those that are envisaged in the bill? For example, have you looked at other countries that have done something similar? What reduction do you anticipate?

10:00  



Andrew Voas

We are increasing the penalties to give the courts the powers to deal with the most serious offences in an appropriate way. The bill is about giving the courts extra powers to deal with offences appropriately.

The Convener

But it should be a deterrent as well.

Andrew Voas

We have looked at the situation in other countries. There are quite complicated arguments about deterrence. We have to balance the seriousness of the penalty with the probability of someone being detected or apprehended. Deterrence may work better with crimes that have more consideration and pre-planning. For example, there may be greater deterrence with crimes such as animal fighting, which might require a fair degree of preparation and planning, than with crimes in which somebody acts violently and abusively towards an animal on the spur of the moment.

Primarily, we see the bill as giving the courts the powers to award appropriate sentences that reflect the seriousness of the crimes that are committed.

Mark Ruskell (Mid Scotland and Fife) (Green)

Alongside fixed-penalty notices and custodial sentences, are there other approaches that can work to re-educate people effectively? I am thinking about awareness courses or sanctions such as banning people from keeping animals. Do you have evidence on the effectiveness of those measures and are they covered by the bill in some way?

Andrew Voas

It should be remembered that various options are available to enforcement authorities before they reach the point of referring a case to the procurator fiscal. Enforcement authorities give a lot of general advice and issue warnings, and some issue care notices under the 2006 act. When a case is put to the procurator fiscal, the fiscal also has non-court options such as warning letters or fiscal fines.

I see the attraction of awareness courses and that sort of thing for convicted offenders, but we have to remember that the number of convictions is relatively small and that, to provide that sort of awareness course, we would need somebody to operate it. Currently, community payback orders require local authorities to set up training or awareness courses so that people who have committed offences can be sent on them. If we were to do something like that—

Mark Ruskell

Can you envisage a community payback order being applied to, for example, a gamekeeper who is convicted of a wildlife crime? What would be a suitable community payback order for such a person?

Andrew Voas

We have considered that in general terms, but we have to be aware of the practicalities. That approach would require suitable courses to be set up and operated so that convicted people could be sent on them.

Mark Ruskell

The bill does not extend the powers of the Scottish Society for the Prevention of Cruelty to Animals in relation to wildlife crime. There is a mismatch between the Scottish SPCA’s current powers in relation to domestic animals and its ability to detect and help to bring people to prosecution for wildlife crimes. Why does the bill not extend the Scottish SPCA’s powers? The organisation is a uniformed service that does effective work with domestic animals. What is holding us back from extending its powers to include wildlife crime?

Andrew Voas

As I understand it, the issue was addressed in a letter to the committee in May 2017, which explained that, with wildlife crime, it was considered more appropriate for police constables to use the full range of powers and facilities that the police have available. That led to an increase in the number of wildlife crime officers. It was decided to go down that route back in May 2017. I know that the issue has been raised with the committee recently. As far as we know, the Scottish SPCA made an offer, which was considered, and the reasons why that offer was not taken up fully were explained in the letter in May 2017.

Mark Ruskell

That letter to the committee outlined a range of actions, one of which was the establishment of special constables on a trial basis to deal with wildlife crime in the Monadhliath area. Why can we not see the evidence and outcomes from that trial to allow us to know whether supplementing the work of wildlife crime officers is a more effective route to tackling wildlife crime than the Scottish SPCA? I am left without knowing the outcome of the process and whether it was effective.

Leia Fitzgerald (Scottish Government)

Along with the police and the Cairngorms authorities, we are carrying out an assessment of the effectiveness of that pilot. We are actively working on that, but it is at an early stage. We are happy to provide the committee with more details, once the assessment has been advanced.

Mark Ruskell

Will that come under our scrutiny of the bill?

Leia Fitzgerald

I do not have timescales, but we will look into that, and I hope that we can get back to you with an indication of when we will complete the assessment process.

The Convener

We would be grateful if you could write to give us an indication of that.

Claudia Beamish (South Scotland) (Lab)

Having been on the previous committee during the previous session of Parliament when the idea of extending the Scottish SPCA’s powers to wildlife crime was raised, I find it puzzling that it is not thought appropriate for the Scottish SPCA to be able to offer additional support to the prosecution of wildlife crime. I do not understand that decision, given that Police Scotland is up against it in terms of resources. I appreciate that there is a pilot in the Cairngorms—we are interested in that—but it would be helpful for the committee to understand the reasons why it is not thought appropriate to extend the Scottish SPCA’s powers. If not now, perhaps you could give us that information in writing. The process has gone on for a long time.

The Convener

We can ask the cabinet secretary the reasons behind that.

Claudia Beamish

Yes, but it might inform developments if the bill team could let us know that—if that is appropriate.

Leia Fitzgerald

We can certainly provide more information in writing, if that would be helpful. As Andrew Voas said, this matter was looked at at the time, since when Police Scotland has increased the number of wildlife crime officers so that there is now one in every division. There is extensive training so that people in Police Scotland more widely are trained. The situation—

Claudia Beamish

With respect, from evidence that I have heard and from going out with people who are on the ground, I know that in South Scotland, the police—with the best will in the world—sometimes take a considerable amount of time to respond. Incidents happen in remote areas, where evidence can be damaged by the weather and must not be touched, and other such issues come up. I still do not understand why that extra support is not possible, when the police are up against it. I am highlighting the issue now.

Angus MacDonald (Falkirk East) (SNP)

Continuing the fixed-penalty notices theme, when do you envisage the Government bringing forward regulations on FPNs? Are they likely to be affirmative, and who will manage the use of FPNs?

Andrew Voas

We do not have any immediate plans for individual FPN regimes but, as I mentioned, the licensing legislation that is being introduced might be where we seek to introduce the first FPN regimes relating to animal welfare.

The regulations will certainly be affirmative, as is the case for all regulations that are made under the 2006 act, and they will come before Parliament. They will probably come to this committee or possibly, in the case of animal health or farm animal-related regulations, the Rural Economy and Connectivity Committee. There will obviously be a requirement for due consultation before those regulations are put forward.

Primarily, it will be local authorities that will administer the FPN regimes, and they will be responsible for the licensing work that we mentioned. A lot of the animal welfare enforcement is done by local authorities. Depending on the exact situation and the purpose of the FPN regime that is developed, other bodies such as the Animal and Plant Health Agency or Food Standards Scotland may be involved.

Angus MacDonald

Do you envisage any capacity issues for local authorities? We always get that feedback from them.

Andrew Voas

We are interested in introducing regulations that will assist local authorities. We know that local authorities are keen on the idea of FPNs in other areas, and we have been discussing with local authorities what future FPN regimes might look like for animal health and welfare enforcement. Generally, local authorities are welcoming of that. Although, inevitably, it is possible that there will be an additional task, there is the opportunity to recover some of the costs of enforcement through the FPN regime. However, those are all details that will be developed in due course when we bring forward the regulations.

Finlay Carson

To tidy up on fixed-penalty notices and other sanctions, is there a possibility in the bill to use the income that is generated from fixed-penalty notices to assist in promoting good animal welfare more widely? If not, are there significant barriers that prevent that possibility?

Andrew Voas

As I mentioned, the basic purpose of the bill is to provide the overall power to introduce FPN regimes of different types and for slightly different purposes in future welfare or health legislation. The focus of the bill is on providing the suitably flexible power that will allow us to do that. As those future FPN regulations are introduced, we can consider exactly how the income should be channelled, who it should go to and what purposes it could be used for. In principle, there is nothing that would necessarily prevent income from being used for particular purposes. However, that is not really the purpose of the bill.

Finlay Carson

Is there potential for the increased use of powers to ban people from keeping animals—whether domestically or for commercial farming—or to require offenders to undertake training to allow them to keep animals in the future?

Andrew Voas

The 2006 act already contains the power for courts to give disqualification orders when an offender is convicted. Those disqualification orders can prevent people from keeping, working with or—basically—having anything to do with animals. When people are convicted of an offence, the courts already have a range of powers. We do not anticipate that changing as a result of the bill, as those powers already exist.

Finlay Carson

I will move on to the issue of animals that are taken into possession to protect their welfare. Over the past 13 years, court orders have been used only 40 times to allow local authorities to take animals away for their welfare, either to be rehomed or to be destroyed. The Government said:

“it has not been possible to produce a reliable figure for the total number of animals”.

Why is that the case? Should it raise concerns, particularly given that the bill would allow animals to be taken into care without the requirement of a court order?

Andrew Voas

To correct Finlay Carson slightly, the enforcement authorities have the power, through the 2006 act, to take animals into possession. The court order comes in when they need to deal with the animals after they have been taken into possession.

We asked all 32 local authorities in Scotland for as much information as they could provide on the times when they had taken animals into possession and then sought court orders. However, it should be remembered that we were asking them to give information covering the past 12 years and that there was no formal requirement to record information in any particular format, so local authorities had dealt with it in a variety of ways. Some of the information will be in case files that are several years old. We got a lot of useful information from several local authorities, but we could not honestly say that we had a complete picture, which is why we said that we could not provide reliable information overall. We should also bear in mind that cases can involve varying numbers of animals; there could be one or two animals or, in the case of farm animals, several hundred. There is wide variation in the numbers of animals that have been taken into possession and in the outcomes for animals in terms of court orders and being sold on or rehomed.

Finlay Carson

Are there specific provisions in the bill for councils to recover the cost of caring for commercial animals that have been seized, or do the provisions address more general issues?

10:15  



Andrew Voas

Do you mean in relation to the arrangements for taking animals into possession?

Finlay Carson

Yes.

Andrew Voas

The existing arrangements for cost recovery allow local authorities to recover their costs from the proceeds of animal sales and from the animal owner. There are often practical difficulties in doing so, particularly if large numbers of animals are in their possession for a long time. The purpose of the new process is to allow councils to make proper arrangements for animals more quickly, which would minimise the cost—that is really what it is about.

We are doing this to improve animal welfare and avoid suffering by animals that have been taken into possession by allowing proper arrangements to be made reasonably swiftly. We are thinking primarily of commercial situations involving dog breeders or farm livestock, which are probably the most problematic situations, or potentially the animal hoarder scenario, in which somebody has acquired a large number of animals that need to be dealt with properly.

The provisions will allow animals in those situations that have been taken into possession to be dealt with swiftly and efficiently to benefit their welfare. I hope that they will also allow a smoother process, so that local enforcement authorities can use the powers in the 2006 act—which were a major improvement at the time, allowing animals to be taken into possession to prevent future suffering—effectively, as was originally anticipated.

Finlay Carson

Where is such a decision taken? For example, if a member of the public reports what they see as a potential animal welfare issue, at what level is the decision taken to seize puppies or dairy cows, for example, and process them quickly? In the case of puppies, it may be that they should be rehomed within six weeks. Where does the burden of that decision fall? Once there are been a court case, is compensation considered if no prosecution is delivered?

Andrew Voas

Currently, enforcement regarding puppies and companion animals is largely done by the Scottish SPCA, which takes the animals into possession to protect their welfare. It has that power under the existing 2006 act provisions if it considers that the animals are suffering or are likely to suffer in future and it can get a vet to certify that.

Local authorities tend to take on cases involving farm animals. They reach a point when they decide that the appropriate way to deal with a case is to take possession of the animals; they usually take them away from the farm to be cared for somewhere else. The decision to take animals away is up to the enforcement authority, which will be the local authority or the Scottish SPCA.

You asked about compensation. Under the current arrangements, animals—it is usually farm animals—can be sold on and the proceeds will belong to their owner. The enforcement authority can deduct reasonable expenses from the value. Because we are seeking a swifter resolution under the new arrangements, the owner can be compensated, with the important proviso that the compensation can be deferred if there is a related on-going criminal case. Ultimately, a court will be able to order that compensation is not paid to the owner, if it thinks that that is appropriate after due process and a conviction—that is an important safeguard.

The Convener

We move on to questions about attacks on service animals.

Angus MacDonald

I want to look at the Scottish Finn’s law provisions of the bill. The Scottish Government has told the committee that attacks on service animals are more likely to be prosecuted as malicious mischief or vandalism than they are to be prosecuted under the Animal Health and Welfare (Scotland) Act 2006, which the bill will amend in order to strengthen the provisions in respect of such attacks. Why is that? Why are the amendments to the 2006 act considered to be needed?

Andrew Voas

How offences are dealt with are primarily matters for the police and the Crown Office and Procurator Fiscal Service. We have discussed the issue with the police. My understanding is that, in the past, some attacks have been dealt with as part of wider public order offences, such as breach of the peace, and assaults on police officers. In those situations, the police and COPFS have considered the overall pattern of behaviour when deciding what the appropriate offence has been.

The change that we are trying to introduce—it is known as Finn’s law, as you said—is to make it easier for offences that involve causing unnecessary suffering to police animals to be prosecuted under the 2006 act. That would require courts to disregard whether an action was committed for the purpose of defending the offender, another person or another animal. Currently, courts are required to have regard to that in deciding whether suffering was unnecessary. When we make the changes, courts will be required to disregard the fact that an action was committed to defend a person or a property in relation to attacks on service animals—that is police dogs or police horses. That should make it easier for such attacks to be successfully prosecuted under the 2006 act.

The proposal recognises the fact that service animals should be regarded as sentient and capable of suffering in their own right, rather than as police property or something that can be vandalised. That is the principle behind the provision.

Mark Ruskell

We are talking about service animals. Will there be a wider applicability to Finn’s law? What if, for example, someone beat a racing greyhound at a track and, in their defence, said, “I was trying to ensure that this greyhound wasn’t going to attack another animal or damage the property of another person”? I am trying to get it clear in my mind why the provision applies to service animals but not to other working animals.

Andrew Voas

It is for practical purposes. We have to remember that police service animals are put in positions in which they are trying to apprehend individuals or maybe control the movement of crowds. They are particularly vulnerable to incidents in which someone attacks them and, potentially, argues that they did so to defend other individuals. Those are the circumstances in which the possibility of talking about the use of self-defence in relation to police dogs and horses might arise.

Mark Ruskell

Do you not see racing greyhounds as being in a similar position? They can be in a very vulnerable position and can be attacked by handlers.

Andrew Voas

It would be harder for a handler to say that they were beating a greyhound in order to defend themselves, because a greyhound is obviously not being used to control the handler or in a way that poses the handler any danger. The provision is really about the practicalities of how the arguments about whether the action was committed in self-defence would arise.

The Convener

We move on to the Poustie review recommendations.

Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

The Poustie review recommendations were broadly accepted by the Government at the time of its publication. I am interested in the impact statements.

The Government, after conversations with COPFS and Police Scotland, accepted that the current system works, and that, where the conservation, ecological and animal welfare impact statements are requested, they work well.

It is therefore considered unnecessary to legislate further. Was it the reassurance from Police Scotland and the Crown Office and Procurator Fiscal Service that led the Government not to accept the Poustie review recommendations in that regard?

Leia Fitzgerald

We spoke to stakeholders, who confirmed that they use statements where they feel that that is necessary and helpful. They already have the power to do that, so there is no need to put the matter on a statutory basis. That would be legislating just for the sake of it, because those statements are already being used. There are circumstances in which an impact statement might not be required or helpful, so we do not want to create an unnecessary burden to produce a statement if it is decided that one is not required in a specific case.

Rachael Hamilton

Are you saying that the statements are not requested as a matter of course?

Leia Fitzgerald

A decision is made in individual cases as to whether an impact statement is required. That is how the process works at the moment. Stakeholders feel that it is working well and that they have sufficient ability to use the statements when needed.

Rachael Hamilton

Poustie also recommended that forfeiture penalties should be extended and made consistent across wildlife legislation. What forfeiture and other alternative penalties were considered as part of the background to the bill and why were those alternatives dismissed?

Leia Fitzgerald

Forfeiture penalties are already available under existing legislation, including the proceeds of crime legislation. We are considering the possibility of introducing fixed-penalty notices as an alternative form of penalty. We have already had discussions with stakeholders on that and we intend to consult on it. That is one of the alternative provisions that we are considering.

Rachael Hamilton

Sorry, but can you repeat that last bit?

Leia Fitzgerald

In terms of alternative provisions, we are looking at fixed-penalty notices, as have been looked at for animal welfare and health offences.

Rachael Hamilton

Just to be clear, why were the alternatives that were recommended dismissed?

Leia Fitzgerald

Fixed-penalty notices are one of the alternatives that we are looking at.

Rachael Hamilton

My next question is about firearms legislation, which is reserved to the United Kingdom Government. What discussions is the Scottish Government having with the UK Government with regard to the recommendation that there should be a power to withdraw shotgun certificates in wildlife crime cases? What plans do you know of to amend the existing UK legislation?

Leia Fitzgerald

I am not aware of any such plans at the moment. We have spoken to our justice colleagues, who lead on firearms legislation. The Scottish Government would like amendments in a number of areas relating to firearms, and not just wildlife crime. Justice colleagues have regular discussions with the Home Office about that. As far as we are aware, the Home Office has no plans to introduce new legislation, but we will certainly continue to have those discussions with justice colleagues and, if an opportunity presents itself, we will consider that.

Rachael Hamilton

Mark Ruskell touched on a preventative strategy for wildlife crime. The Poustie review recommended that empathy training be given. Do you have any comment on awareness courses, which might be a bit like rehabilitation courses for people who have committed speeding or other driving offences? Those could be brought in as part of a preventative strategy for wildlife crimes.

Leia Fitzgerald

There are powers already, but no specific courses of that kind are being run or developed in Scotland. If the court was to make that provision, there would need to be a suitable course. However, as Andrew Voas said, thankfully, the number of cases is quite low. There are practicalities about having suitably qualified people to deliver the courses and having sufficient numbers of people on them. We have not ruled that out, but there is no obvious course available at the moment that we could use. If such a course were to be developed by stakeholders or others, we would certainly look at it to see whether it was appropriate.

10:30  



The Convener

Mark Ruskell has some questions on vicarious liability.

Mark Ruskell

I understand that only two vicarious liability restrictions have been put in place in the past seven years. There are questions about whether the current extent of the use of vicarious liability is effective in tackling wildlife crime. What representations have you had on the topic in relation to the bill? What consideration have you given to extending vicarious liability in the bill?

Leia Fitzgerald

We have not had any specific recommendations about extending vicarious liability. We know from speaking to the police and the prosecution service that it is something that they will always consider and, if they deem it appropriate and there is sufficient evidence, they will seek to bring charges.

In his review of the Protection of Wild Mammals (Scotland) Act 2002, Lord Bonomy recommended introducing vicarious liability for offences relating to hunting with dogs. We are looking at that and, when we introduce proposed legislation on fox hunting, we will consider whether it would be appropriate to implement that recommendation.

Mark Ruskell

Okay, but you have no plans to extend vicarious liability in the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill.

Leia Fitzgerald

The bill is about increasing the penalties for existing wildlife offences; it does not seek to create any new wildlife offences.

Claudia Beamish

I seek clarification whether, when it is alleged that a crime has been committed but no one has been directly prosecuted for it, it would still be possible for there to be a vicarious liability prosecution. Would court action be considered even in the absence of the perpetrator being convicted? It would be helpful to have that clarified, because there is concern about that issue, which, to a degree, relates to the bill.

Leia Fitzgerald

In order for a charge of vicarious liability to be brought, it is not necessary for somebody to have been convicted of the underlying offence. Often, a charge of vicarious liability will be brought when somebody has been convicted of the underlying offence, but it can still be considered if someone has not been convicted. However, the Crown would have to be content that there was sufficient evidence that it could bring such a charge.

The Convener

Claudia, would you like to ask your questions about evidence gathering?

Claudia Beamish

Yes—I want to turn to wildlife crime investigations and video surveillance. Given the nature of wildlife crime—it has already been highlighted that it is committed in remote areas, that the weather can affect the gathering of evidence and that evidence can be removed—the likelihood of perpetrators being apprehended is clearly an important factor in the context of the bill, as is the deterrent effect of sentencing. How will the bill impact the ability of authorities to investigate and gather evidence of serious wildlife crime?

Leia Fitzgerald

One of the things that the bill is doing is increasing the time limit for prosecutions to be brought. We have spoken to the police, the Crown and stakeholders, and they have all said that there have been cases that they have not been able to pursue because of the time limit, for the reasons that you alluded to. In addition, quite a lot of complex forensic testing sometimes needs to be undertaken. Stakeholders feel that the proposed increase in the time limit will be helpful, because it will give them more time to investigate. As I said, the police, the Crown and stakeholders were all able to give examples of cases that had fallen under the time bar, whereas if the time bar had been longer, they might very well have been able to bring a charge.

Claudia Beamish

That was helpful.

As you will know, the committee has heard previously that video surveillance could be important in gathering evidence and thereby enabling the prosecution of wildlife crime. However, there has been some debate about the admissibility of such evidence in court. Will the bill shift the debate in this area? Do you think that it is more likely that evidence that is gathered through video surveillance will be admissible as a result of wildlife crime being treated as serious crime?

Leia Fitzgerald

The increase in the penalties will mean that there will be opportunities for police-sanctioned surveillance, providing that it is considered that that would be appropriate and all the requirements for carrying out that surveillance are undertaken. That will help in that regard.

On the issue of evidence that has been gathered from third parties, the bill seeks to make no changes to the processes or procedures under which wildlife crime is investigated or prosecuted. At the moment, the rules governing the admissibility of evidence are not specific to wildlife crime, the use of closed-circuit television or video evidence. The Crown is able to consider such evidence and it will do so. However, it has to make decisions on a case-by-case basis about whether a piece of evidence is admissible. There will be various reasons that are considered in that regard, some of which will be legal reasons.

Claudia Beamish

That is helpful. Particularly with regard to third parties, has article 1 protocol 1 of the European convention on human rights, which concerns private property, been considered in relation to future developments? I am thinking about the issue in view of where we started with regard to the remoteness issue and the importance of recognising that wildlife crime is now being said to be a serious crime.

Leia Fitzgerald

It is not being looked at in relation to the bill, as the bill is concerned with the penalties rather than those wider areas. As I said, a decision would have to be made about whether video evidence could be used—that will continue to be the case. There have been cases where it has been deemed to be admissible.

The Convener

Just to clarify, am I correct in thinking that the legal issues around the use of video evidence relate to any crime and are not specific to wildlife crime? That is, there is a threshold that has to be met in order for the police to embark on any kind of video surveillance of a situation. Is that correct?

Leia Fitzgerald

There are rules governing when police surveillance can be used and there are, obviously, operational decisions that Police Scotland has to make. There are rules governing the admissibility of any kind of evidence. In May 2017, Sarah Shaw wrote to the committee with information that covered all the rules around what the Crown takes into consideration when determining whether evidence is admissible.

Finlay Carson

The bill includes the ability to increase sentences and make unlimited fines. Will that increase the possibility of video evidence being used in a case?

Leia Fitzgerald

No. The police have certain criteria under which they can authorise surveillance. Increasing the maximum penalties that are available for some of the crimes might make them fall under some of the categories in those criteria, but there would still be case-by-case decisions for the police to make about whether, based on all the criteria, it would be appropriate to authorise surveillance.

There will be no impact on the use of video evidence from third parties. It will still be for the Crown to determine whether that can be used, under the current rules and regulations.

Finlay Carson

But, potentially, the police will have more scope to consider using video evidence, because the limits involve whether something is a serious crime, a crime that might result in a sentence of three years or more and so on.

Leia Fitzgerald

Yes.

The Convener

I will conclude the questioning by asking about the Werritty review. It was expected to report in the summer, but it did not. Do you have any idea when it might report?

Leia Fitzgerald

The review was delayed for reasons that were outwith the control of the review group. It is an independent review. We do not have a definite date, but we have been advised that the group hopes to present a report to Government shortly.

The Convener

Thank you very much. I thank everyone for their time this morning.

10:40 Meeting suspended.  



11:01 On resuming—  



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Second meeting transcript

The Convener (Gillian Martin)

Welcome to the Environment, Climate Change and Land Reform Committee’s 33rd meeting in 2019. I remind everyone to switch off their mobile phones or put them on silent, as they might otherwise affect the broadcasting system.

Agenda item 1 is to take evidence at stage 1 on the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill. The first of two panels today will focus on the legislative framework in the bill. I am delighted to welcome: Mike Radford, who is a reader at the University of Aberdeen; Gillian Mawdsley, who is secretary to the criminal law committee of the Law Society of Scotland; and Scott Blair, who is an advocate for the UK Centre for Animal Law. Good morning to you all, and thank you for coming to the meeting.

I want to kick off with questions on the proposed increase in maximum sentences for animal welfare offences. Will you outline the evidence base and the rationale for the proposed increases in penalties in the bill, including current trends for the specified offences and the rationale for specific maximum penalties?

Mike Radford (University of Aberdeen)

The rationale is that the maximum penalty is not appropriate for the most serious offences. It is as simple as that. The number of cases that would be involved is relatively small, but they are the most serious. In particular, there has long been an argument that offences that involve either a large number of animals or unnecessary suffering being caused for money or for pleasure are more serious and the current maximum penalties for such offences are inappropriate.

Finlay Carson (Galloway and West Dumfries) (Con)

Does the scope of the bill go far enough? We are looking at the maximum penalties being increased for some animal cruelty issues, but that is not happening in relation to other offences under the Animal Health and Welfare (Scotland) Act 2006, such as those in section 20, “Mutilation”, section 21, “Cruel operations”, section 22, “Administration of poisons etc”, and section 24, “Ensuring welfare of animals”. Those offences will not be subject to an increase in the maximum fine or sentence, although they could involve serious animal welfare issues. Why are they not included in the new legislation?

Mike Radford

Those are old offences. They existed before the 2006 act. In fact, most of them go back to the Protection of Animals (Scotland) Act 1912. Few of them, with the possible exception of the poison offence, are brought. All such cases could also be covered by the welfare or unnecessary suffering offences.

Finlay Carson

I want to ask about what is excluded from the scope of the bill. It does not cover licensing of animal breeding, pet sales or sanctuaries. Further, there is currently on-going consultation on a bill on sheep worrying. Would it be better to have one piece of legislation that covered all those issues, rather than little bits of legislation that might lead, in the long term, to improvements in animal welfare?

Mike Radford

The 2006 act is an umbrella piece of legislation. It relates to all protected animals—that is, vertebrates other than man that meet one of three conditions, which are that they must be of a kind that is commonly domesticated in the British islands, under the permanent or temporary control of man or not living in a wild state.

On licensing, the Scottish Government has had a consultation on bringing in new legislation on the licensing regime. England did that last year. The licensing regime is an administrative regulatory regime. Nothing will prevent somebody who is in breach of any new licensing regulations from also being prosecuted for a welfare offence or an unnecessary suffering offence under the 2006 act. The new regulations will be complementary rather than in opposition to existing legislation.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

I wonder whether you might be able to point us towards any academic research on a particular issue that touches on this discussion. Sentences are about penalising the guilty—and, to some extent, in the case of a fine, they are about compensating the criminal justice system for the cost of the prosecution. However, it is also said that they constitute deterrents. Is there any academic research that shows us the balance in the criminal’s mind between the deterrence that comes from the thought that they might get caught and the deterrence that comes from the punishment that follows being convicted? That is a debate that can be had more generally, but, since we are talking about increasing sentences today, I think that it would be appropriate to seek some clarity from academic research.

Mike Radford

There is no such academic research from the United Kingdom that I can point you to. However, it is important to understand that, when it comes to unnecessary suffering—what used to be called cruelty—the vast majority of prosecutions arise from negligence. In other words, the suffering is unintentional—essentially, it involves people not looking after their animals properly.

Clearly, matters are serious if a lot of animals are involved, but such offences are of a completely different nature from those that arise out of deliberate cruelty and unnecessary suffering where a large number of animals are involved or where people are making significant amounts of money—the committee will be aware of the issue of puppy smuggling and puppy farming—in relation to which the penalty clearly does not fit the crime and the potential benefit that people are getting from it.

It is also important to view how the legislation works as a whole. The 2006 act includes provisions on care notices. The difference between the welfare offence and the unnecessary suffering offence is that the latter occurs only after the animal has suffered. The welfare offence can be a protective provision, in that it allows enforcement authorities to intervene at an early stage, either to get the animal out of the situation or to put the situation right. Those who are appointed under the 2006 act can issue a care notice, which identifies the problem, tells the person how long they have got to put things right and what they have got to do. In Scotland, unlike in England, a failure to comply with a care notice is an offence in itself.

The bill would make the system more flexible at both ends. At one end, it would increase the maximum sentences for the most serious offences; at the other end, the proposal to introduce fixed penalty notices would allow a sanction short of prosecution where there is a failure to comply with the care notice.

Gillian Mawdsley (Law Society of Scotland)

I am not sure that this is necessarily the point that you are asking about but, taking a broader view and speaking from a criminal law perspective, I make the point that deterrence is a major factor and an increase in the sentencing available will offer the judiciary greater powers over what the sentence is.

It is important always to think of deterrence in the context of the sentence that is pronounced in any case that is successfully prosecuted, and to look at the factors that come into that. I highlight in that respect the importance of sentencing being appropriate and commensurate in the overall criminal scheme; any sentence is about setting an appropriate tariff and that tariff being known about. That is as much about education and training as it is about the judiciary. I see that as the role of the Scottish Sentencing Council, which is committed to producing sentencing guidelines. That is very important. There are sentencing guidelines in England and, in my experience, they do a lot to educate the judiciary, who might deal with only one case from time to time, to get a sentence right and make it appropriate and in line with the response to other serious criminal offending.

When we consider deterrence, we need to take a step back and look at other factors in the bigger criminal picture. The sentence should be appropriate, but it should also carry sufficient penalty for deterrence.

Mr Radford talked about money being made from crime. Clearly the legislation has a role in relation to the proceeds of crime. Confiscating the proceeds of crime is an important deterrent because, frequently—this is my experience—criminals are concerned not about the conviction affecting them and their being put in prison but about the impact on the family picture and the wider profitability and affluence that has come from the criminal activity.

That might not be the answer to your question about deterrence, but such factors have to be looked at, as does the opportunity that the bill provides to increase sentences and give a range of options, so that a judge is not restricted to imposing a summary sentence and so on.

Scott Blair (UK Centre for Animal Law)

I will make two brief comments on what has been said. On the previous point about sentencing, one of the points that the UK Centre for Animal Law made in its submission to the committee is that there appears to be a view, if not a basis in evidence, that prosecution, detection and conviction in relation to wildlife offences is particularly difficult.

09:15  



If the penalties are set relatively low, we get into a somewhat circular situation where the crimes are difficult to investigate and prosecute and the penalties are not very high, so from the prosecutor’s perspective there is not much incentive to go forward. Conversely, for those who commit offences against wildlife, that means that there is not much of a deterrent. We therefore welcome the proposal to increase maximum sentences for wildlife offences, because that seems to reflect the concerns about the difficulties that arise.

As a practising lawyer, I can understand the attraction to consolidating all the animal legislation into one statute. Having all your law in one place makes it a lot easier to find. As Mike Radford said, the difficulty with that is that the purposes of our various regimes are different. Some are criminal law regimes and some are protective welfare regimes. Licensing is a particular interest of mine and I have recently been involved in some of the work on a form of dog breeding law, puppy farming law and Lucy’s law, so I hope that I am fairly well versed in that distinct area of administrative law, over which a local authority should more properly have control.

It would be difficult to have the one statute, or even a couple of statutes, to cover all those areas. It is far better if they are seen as different but complementary. One example that comes to mind from licensing law is the Civic Government (Scotland) Act 1982—I am sure members will be familiar with that to some extent—which covers areas such as taxi licensing. A breach of the licensing provisions under that act is also a criminal offence and can be prosecuted under criminal law. That system has worked well for years. Likewise, and in so far as we are also looking at reforming our animal licensing law, a system whereby licensing offences are civil matters for the licensing authority and criminal matters for the fiscal is a well-established and understandable model.

Mark Ruskell (Mid Scotland and Fife) (Green)

I am interested in that point, because the bill does not seek to extend sentences for licensing breaches but covers other areas.

The bill could have updated the definition of animal sentience. Do you have any thoughts on that? Is the bill the appropriate place to put that, or are there other ways of updating the definition?

Mike Radford

That requires separate legislation. I gave evidence to the Westminster Environment, Food and Rural Affairs Committee a couple of years ago when the Department for Environment, Food and Rural Affairs produced its ill-fated sentience provision. The issue needs a separate piece of legislation.

Leaving aside what sentience means, which animals it applies to and so on, the issue is still alive as far as DEFRA is concerned. The provision would have made a significant difference in the sense that, until now, animal welfare legislation has focused on those who are directly responsible for animals. The proposed provision would have imposed a duty on the Government. If we are going forward in that way—as I hope that we will do—it would require a materially different sort of provision.

I want to follow up on what Scott Blair was saying about licensing. There is the fallback of prosecuting for failure to adhere to licensing provisions. However, in practice, the majority of issues are dealt with administratively by changing licence conditions or revoking licences. That is the point of the licensing system: it can be regulated and enforced administratively rather than under criminal law.

Finlay Carson

Your answers have been useful, but they have led me to want more information about other types of penalty.

You talked about different penalties. In practice, how effective are the community payback orders and disqualification orders that are currently available? Will the bill tighten up their use?

What are your thoughts on automatic bans? At the moment, someone can be banned from keeping animals, but there does not appear to be much consistency on the part of the courts in making banning orders. Should there be an automatic ban on keeping animals for people who are convicted of the most serious animal welfare crimes?

Gillian Mawdsley

Community payback orders have been available for some time. They are perhaps particularly important in the context of the presumption against short sentences that was legislated for recently, which, as you know, means that it is unlikely that a sentence of under 12 months will be imposed.

The advantage of a community payback order is that some of the offences that we are talking about are such that unpaid work in the community might well be a payback. That is not a light sentence, given the commitment that is required from people who might have to fit the activity around work. I am not sure where community payback orders have been imposed, but I think that if they are imposed appropriately they can be effective and are in line with the policies that the Government is promoting.

An automatic ban could be appropriate and effective, as part of a sentencing regime. My only reservation is that it would of course always be subject to the appropriate appeal mechanisms, which are clearly laid out. My two colleagues can probably say more about when the sanction of disqualification is appropriate. A sanction that in effect takes away someone’s livelihood seems to me to be appropriate on occasion.

Scott Blair

I endorse that final point. Anyone who immerses themselves in the wealth of material that shows just how cruel people can be towards vulnerable creatures will feel a real sense of repugnance—that is the feeling in my mind and I am sure it is the feeling in members’ minds. There is certainly scope for a system of automatic bans, to reflect society’s view that some things are simply beyond the pale.

This might not be a very good parallel, but I will draw it anyway. We have a system of protection of children in our country, in which the ultimate sanction is that a person’s children are taken away from them and perhaps freed up for adoption. That might be to do with parenting skills or cruelty—every case is different. When we are dealing with cases of plain cruelty, intentional abuse of animals or just reckless disregard for animals’ interests, it is difficult to escape the view that automatic bans have a role to play and would be broadly supported by most members of society.

Mike Radford

It is unfortunate that disqualification orders are not in the bill. The bill’s title includes the word “penalties”, and a disqualification order is clearly a penalty. It is not a punishment, and it is not to be confused with any other sanction that is imposed on a person. Imprisonment, fines and other sanctions that are available to the court are punishments, whereas disqualification orders are intended to protect animals and are, in my view, a penalty, not a punishment. It is unfortunate that the bill says nothing about them.

Disqualification orders predate the 2006 act, but the 2006 act makes available a much greater range of orders. If a compulsory disqualification order were to be imposed, we would need to know precisely what was being disqualified. The idea behind the inclusion in the 2006 act of a lot of variations on the disqualification order was that there would be more flexibility for an order to fit the offence, whatever it was.

The problem is that a court already has to give reasons for not imposing a disqualification order. For the more serious offences, if it is not compulsory to impose such an order, there should—at the very least—be a very strong presumption in favour of it. The problem with compulsory orders is always that, in difficult cases, they could end up being disproportionate, particularly if somebody’s livelihood is affected. However, there should be a very strong presumption that there will be a disqualification order. In addition, if the court decides not to impose one, it should be under a duty to give a reasoned and thorough opinion on that, which should be appealable.

It is also important that there is a register of those orders. At the moment, there is no collective view of orders, so we do not know who is getting them, and we cannot look at the consistency between courts. It used to be said that people would know about disqualification orders because neighbours would know, and because they would be reported in the local press, which was full of court cases. Populations are much more mobile now, so neighbours probably will not know, and there is not a local press in the way that there used to be. As such, there is simply not an informed view of when disqualification orders are being imposed, what is being imposed and who gets them.

Claudia Beamish (South Scotland) (Lab)

Although I have a substantive question, I will first ask Mr Radford about something that he just said. If I heard correctly, he said that negligence was an “unintentional” issue. From my layperson’s perspective, if a person—-an adult who has responsibilities—treats an animal in a negligent way, I do not understand why the word “unintentional” comes in. I have read about a lot of the cases that came forward in evidence, which were very disturbing. Will Mr Radford briefly say more about that?

Mike Radford

Yes. In the criminal law, there are strict liability offences—such as parking and speeding—whereby the person’s state of mind at the time is irrelevant. More serious offences divide into two types, whereby there is either an objective mental element, which is about the reasonable person test, or a subjective one, which is about the intention of the person. For example, the conduct and result of manslaughter and murder are the same; the difference between the offences is the mental element.

Around the world, a lot of cruelty, or unnecessary suffering, offences are restricted to where it can be shown beyond reasonable doubt that the person intended the animal to suffer, which—clearly—is a high threshold. The vast majority of prosecutions for unnecessary suffering do not arise from cases involving people who intend to cause it—rather, those people do not look after their animal properly and, generally, its condition deteriorates over a period of time. That may happen because of ignorance, and, in many cases, it is not just the animal who is not being looked after properly; the lives of those people are in some chaos and they are, in fact, not looking after themselves properly either. It is probably not appropriate that such people be sent to prison. Those offences are much fewer now, because of the welfare offence.

The problem prior to 2006 was that an offence arose only after the animal had suffered. That did not actually protect the animal; it simply made the person accountable after the event. The beauty of the welfare offence is that, along with the care notices, it allows for intervention before the animal has reached the point of suffering. For example, if somebody is not feeding their dog properly, its condition will deteriorate over a period of time, and, if they do not take advice from enforcement authorities, steps can now be taken to get the animal away from that situation. That is a very different situation from that of a person who is deliberately causing unnecessary suffering.

Claudia Beamish

Thank you. That is helpful. I am keenly conscious of the time.

The Convener

Can you keep your questions short, because we have only 15 minutes?

09:30  



Claudia Beamish

Do the panellists have any comments on the need for any further interventions to support the application of appropriate penalties or to support broader compliance with the law, such as sentencing guidelines, enforcement, public awareness interventions or changes to the powers of agencies such as the Scottish SPCA? In light of the time that we have, not all the panellists have to answer that question, but if they wish to comment, that would be most welcome.

Gillian Mawdsley

I will pick up the first part of the question and leave the issue of changes to powers.

I refer to the answer that I gave earlier. All changes to criminal sentencing are part of the awareness of the judiciary—the Crown Office and the defence—of what the likely sentence should be and are about pitching that within the criminal framework. As was discussed earlier, we are very reliant on organisations and people who really understand animals making that known. There is also the obligation of education of all those parties, which is part of legal education.

As I highlighted in our response to the Judicial Institute for Scotland, there is a definite need for sentencing guidelines—I referred to that earlier—because they set out parameters. Obviously, judges do not need to observe them, but having such guidelines would make things very clear. That is an area of our law that needs education, training and awareness, and that involves publicity for cases that have been successfully prosecuted. It is about education generally, the education of children, and respecting animals. A number of organisations that are interested in animal welfare have a role in that and, once the bill is passed, we will all have a role in making people aware and ensuring that information is out there. There is no point in increasing penalties unless people are aware that they will be applied when appropriate.

Scott Blair

I will pick up a point that Gillian Mawdsley made. I know that this theme is close to A-Law’s heart. There is an increasing amount of international research that demonstrates links between cruelty towards humans and cruelty towards animals and that shows that behaviours that are learned very early in life can carry through to later life. All of us can probably remember things going on in our own school days, such as someone pulling the legs off spiders in the schoolyard. We look back on such things with horror and think, “How could that have happened?” That was the culture—I hope that it is not the culture anymore.

We also have the paradoxical view of animals being fluffy, Disney-like creatures. Children are fed a lot of wrong information about animals, and they need to understand that animals are sentient and can suffer, and that they can enjoy pleasure and experience pain like the rest of us. If those messages are implanted in children early on, the criminal law will have a lesser role to play because some of the more concerning acts of cruelty that we see may simply not take place.

In that wider context, another area that is perhaps worth exploring is joined-up thinking about people who have been convicted of animal cruelty offences and the extent to which that might be a risk factor for the authorities to consider in relation to what else is going on in those people’s lives and homes.

I will give a brief example. In some American states, if an animal is brought to a vet for treatment and the injuries are unexplained, the vet has a duty to contact the local social services department to put that on record with a view to perhaps triggering further inquiry into the person’s circumstances.

As Mr Radford said, part of the problem can be that people are in difficulty. If they are in difficulty in their own life, that might impact on others, including children and vulnerable people as well as animals. Perhaps there is an opportunity to have joined-up thinking, with education at an early stage and agencies that have become aware of criminal animal cruelty reporting to other agencies that may have a relevant interest.

Mike Radford

The SSPCA could give the committee more information about that when the committee takes evidence from it, because it has been at the forefront of that issue.

The Convener

We need to move on. I want to pick up on the aspect of the bill about rehoming without a court order. Will you outline why that is necessary and what the impacts are likely to be on welfare, perhaps making a distinction between agricultural livestock and domestic pets?

Mike Radford

The answer to that follows on directly from what Mr Blair said about the nature of animals. The offences that we are talking about are not just another criminal offence; they involve living, feeling creatures. The problem is twofold. In the context of agricultural animals, large numbers of animals can be involved. Who is responsible for them and where can they be kept? It may well be that they are coming up to slaughter weight and need to be disposed of as quickly as possible for economic reasons.

With companion animals and the like, by the nature of such cases, the animals have had an unfortunate experience and have been looked after poorly. At present, if an owner does not voluntarily give up ownership of the animal, it has to be held by an agency, which is most commonly the SSPCA. The agency has to pay for that, and it blocks up kennels so that other animals cannot be brought in. That situation can often worsen already inherent behavioural and other problems that have arisen from the way in which an animal has been treated.

The Convener

There is a real issue with puppies, for example.

Mike Radford

Absolutely.

The Convener

They might have to be kept in that situation until they are adult dogs, so they will not have socialisation. Is that another reason for the measure?

Scott Blair

Absolutely. I am a dog owner and I suspect that some members may have a dog or certainly experience of dogs. If, like me, you have had experience of raising a dog from puppyhood, you will know that the early stage in their life is absolutely crucial in two ways. We often hear people saying, “My dog isn’t good with other dogs,” which is usually indicative of the fact that the dog has not been properly socialised with other dogs. That is a classic issue in puppy farming scenarios, where breeding bitches are kept in cages without contact with other dogs.

It is equally important for a puppy in the early stages of life to be handled appropriately by humans to encourage the inherent bond between canines and humans. If that is not done, you end up with a dog that is aggressive towards people. In the scenario in which a puppy farm is raided and dogs are recovered—including adults used for breeding and puppies—they might have to sit in some kind of limbo for months and months. I readily accept that the SSPCA does what it can in that scenario, but there is nothing better than a proper new home, particularly for a puppy, because some of the damage that might have been done can be mitigated or steps can be taken to bring on the puppy and socialise it appropriately.

We can benefit society if we stem the problems that arise from problem dogs—although I would say that the problem is the owners—that have not been socialised properly early on in life. If we simply hold them in the limbo of the legal system until the owner agrees to the transfer—or perhaps does not and the case ends up in an appeal process—the wider public benefit is simply lost. We may have rescued a puppy, but we have not given it the life that it deserves.

The Convener

There is a question about both sides of the issue. How do we balance the rights of the animal with the rights of the owner in such situations? There is an issue of the process of the law. We could have a situation in which an owner is not prosecuted but loses a herd of cows or animals that they were rearing to sell.

Mike Radford

The bill addresses that issue, in that the animals can be disposed of only if the owner does not seek to have the notice overturned. There is protection, in that animals will not simply be disposed of without the owner being made aware of that. The owner has a limited period of three weeks to do that, which seems to me to be entirely appropriate.

They have to be informed of what is intended, and the provisions of the notice in the bill are pretty detailed.

It seems to me that, in addition to the practical issues that Mr Blair has identified, there is an issue of principle here. The role of the law and the courts is to protect the vulnerable. By definition, if an animal’s condition is so poor that it has been taken into possession, the principle should be that it is put into the best position possible as soon as possible. That should not automatically override the owner’s rights, but it should be given priority. The onus should be on the owner to argue against that—the current position is that the cards are stacked in the owner’s favour.

The Convener

We have to move on. Stewart Stevenson, could you deal with the two themes that you wanted to ask about in the one go?

Stewart Stevenson

I will seek to do that.

On compensation, section 11 of the bill inserts new section 32H into the 2006 act. Proposed new section 32H(3) sets out that the value of the compensation will be the greater of the value at the point at which the animal was taken away from its owner and the value at the end of the process of determining compensation. I wonder why that second provision exists at all, given that interventions such as veterinary treatment would increase the value of the animal. Why should the compensation value not simply be the value of the animal in the condition that it is in when it is taken away from the owner, however poor that might be, bearing in mind that it is being taken away for welfare reasons? I make the observation that that amount should be less any expenses, but that is a separate issue. The expenses could be substantially less than the increase in value; in fact, in some circumstances, the value could be close to nil.

Mike Radford

You make a very good point.

Stewart Stevenson

That is an adequate answer for my purposes. I always read the words in the bill.

The other issue is that the compensation is determined before any criminal justice case might have begun its formal process. Should compensation be paid to someone who is going to go into the criminal justice system? When the animal exists purely because of the criminal actions of the individual, should that individual get any compensation whatsoever? In other words, should the decision about compensation not follow the completion of any criminal justice process and potentially be determined to be zero, regardless of what the bill, as it is currently drafted, says?

Mike Radford

You make a second very good point.

Stewart Stevenson

In that case, let us move on to fixed-penalty notices, because I know that we are short of time.

I have seen fixed-penalty notices being used very effectively to deal with low-level street crime, such as drunkenness on a Saturday night. In relation to what the bill says about fixed-penalty notices, I am unclear—perhaps because I have not read the relevant part of the bill thoroughly enough—whether the SSPCA can administer them or whether a constable has to do that. Should both options be possible? Given that the SSPCA has powers to take animals into possession, is the way in which the bill is constructed sensible and a good addition to the law?

Mike Radford

Yes, it is a good addition to the law. A person who has been appointed under the 2006 act can administer fixed-penalty notices, and I understand that most SSPCA inspectors have been granted powers under that act.

As I said earlier, the proposed arrangement makes the regime much more flexible at both ends—the serious end and the less serious end. I see fixed-penalty notices being particularly valuable when somebody is not complying with a care notice but it would be disproportionate to prosecute them. However, a record must be kept of who has been given such notices.

09:45  



Angus MacDonald (Falkirk East) (SNP)

We saw broad support in our consultation for the introduction of a Scottish Finn’s law. It is perhaps worth noting that a small number of respondents suggested that the bill should go further and mandate harsher penalties for attacks on service animals. One respondent suggested that there is a case for introducing a new offence of intentionally or recklessly causing injury to a service animal. Do the proposals in the bill for a Scottish Finn’s law represent an appropriate mechanism for increasing protection for service animals? What are the implications of the change?

Scott Blair

I drafted the A-Law response on this point and what struck me when I embarked on this was the level of violence that is out there towards service animals, including horses, which I find extraordinary. I ride myself, I am around horses, and the idea of anyone hitting or punching a horse strikes me as bizarre, but it goes on and there are many examples of it. The issue relates to more than just dogs and affects any type of service animal, so there has to be a clear recognition of what we are talking about.

There is a large body of material from England about attacks on service animals and, in particular, about public order offences where horses or dogs are deployed. There is a paradox, I think, whereby a person can be committing an offence, such as breach of the peace, disorderly behaviour or assaulting a police officer, but if a service animal becomes engaged with them, they are entitled to say, “The suffering was necessary because I was defending myself”. That is simply incoherent, in my view, so the bill is a valuable way of addressing the current anomaly in Scotland.

You asked about the impact of the change. I think that there has to be appropriate sentencing. If someone commits this offence in the context of public disorder, for example, there might be an issue as to whether it is an aggravating factor in the overall circumstances of the public order offence. In any event, there is merit in having an independent penalty to make it clear that animals have rights—in a sense; this is a controversial area—or at least that we have duties towards them, and that that includes those who assault animals in the course of their behaviour. It is simply not appropriate.

As for making the offence wider, the difficulty that one always has is the question of why we single out certain members of society for particular treatment. In the last days of the death penalty, the sentence of death was handed out only to those who killed police or prison officers and so on. That was one of the anomalies that people brought forward to say, “This is another reason why we cannot support this; it produces arbitrary distinctions.”

My view—it is very much a personal view—is that there is an argument for a higher penalty for attacks on service animals, simply because of the deterrence element. I am not aware of any widespread body of evidence or opinion out there that reflects that view at this time, but there is certainly a clear body of opinion and evidence that supports something resembling Finn’s law, and the model in the bill very much reflects that body of opinion.

Mike Radford

I support Finn’s law. Like Mr Blair, I think that it should go beyond dogs and include any service animal that has been trained and is being used in the service of the public.

I invite the committee to consider taking the approach further to include assistance animals. There is a particular issue in that regard—we are talking mostly about attacks on dogs—because the nature of a person’s disability might mean that they are unable to see or be aware of the danger and take avoiding action, as a normal dog walker could. Secondly, the nature of such an attack can result in the dog not being fit to carry on their role, and clearly that has implications for the dog and for the person whom the dog is assisting. It is a really serious issue, and though there are relatively few such instances, the number does not lessen their importance.

The Convener

I apologise to members who wanted to come in on the back of that answer, but we are running out of time. We will move on to wildlife crime.

Claudia Beamish

The panel has already looked at the increase in penalties. Are there any comments about serious wildlife crime? I am interested in the implications for the investigation of wildlife crime of changes in the bill such as the change in statutory time limits and the potential ability of the police to authorise covert video surveillance.

I am making all my points at once, because we are short of time—I apologise; we are always told to ask one question at a time. To achieve the aim of increasing deterrence, might other work or measures be required, such as the use of vicarious liability, resources for investigations and enforcement or other recommendations of the Poustie review? I have thrown a lot in, but answers on any of those issues will be most valued.

Scott Blair

I have a comment on vicarious liability. With wildlife crime, one is typically dealing with large areas of land that are under the management of an entity such as a company or trust that employs stalkers, keepers and other persons to manage the land. That is an industrial activity, albeit one that is carried out in the rural environment, and there are parallels in other areas of the law where persons who employ other persons to perform a role in the context of a business are often vicariously liable, both civilly and criminally—this used to be the case under the Factories Act 1961 and it is the case under the Health and Safety at Work etc Act 1974.

My view is that there is no distinction in principle to justify maintaining the view—if there ever was this view—that vicarious responsibility has no role or a limited role in the rural environment. That strikes me as anomalous. The issue has been seen against the background of a time when people who worked the land were independent contractors who came in and provided services to the landowner. That might have had some validity in the days of the Victorian estates, but it does not have validity any more with regard to large estates that are managed either as a means of producing game for the table or as sporting estates, where there is much money to be made. My respectful submission is that, if there is much money to be made, there has to be vicarious responsibility on the part of the people who are in overall management of the site, as is the case with regard to industrial matters.

Of course, that must be subject to the usual defences of reasonable diligence and due diligence being taken, to cover situations in which members of the estate break the law despite the best efforts of the estate management team to ensure that that does not happen.

There are so many parallels in our laws, from liquor licensing through to health and safety legislation, where vicarious liability applies. It is anomalous that the proposition is not accepted in a general sense in the area of law that we are talking about.

Claudia Beamish

Is it your view that there would have to be a direct prosecution of the alleged perpetrator, or would evidence of an alleged crime be sufficient?

Scott Blair

Yes, evidence of an alleged crime would be sufficient. There are precedents with regard to alcohol licensing, which is an area of my practice. Provisions in the Licensing (Scotland) Act 2005 make clear that if, for example, a shop assistant has sold alcohol to a child, one can go against the shop owner, not necessarily the assistant; the real issue would be with the owner, not the assistant. Our law has precedents that already work on that basis.

Claudia Beamish

That is helpful; thank you.

The Convener

Are there any other comments before we wrap up? We have only a couple of minutes.

Gillian Mawdsley

I want to make a point about vicarious liability in the criminal context. A common driving offence is that of causing or permitting the uninsured use of a vehicle, which is a contravention of section 143 of the Road Traffic Act 1988. The issue of vicarious liability is involved when the person who is the owner of the car is the one with the insurance but the person who is driving does not have insurance. That is quite a successful prosecution method, because of the issue of whose fault it is that there is no insurance.

The Convener

Mark Ruskell has a final question.

Mark Ruskell

Earlier, Claudia Beamish asked about the powers of the SSPCA. Do you see a mismatch between the SSPCA’s powers in relation to domestic animals and its lack of powers in relation to gathering evidence on wildlife crime?

Mike Radford

There is an issue there, and I am sure that the SSPCA will be happy to give you evidence on that.

Mark Ruskell

What is your view?

Mike Radford

My view is that the SSPCA should be given more powers and that it should be treated as a public body, so that it would be subject to judicial review in the same way as other public bodies are.

The Convener

I thank our witnesses for their evidence. It has been helpful. I am sorry that we have run out of time.

We will suspend briefly to allow for a change of witnesses.

09:55 Meeting suspended.  



10:01 On resuming—  



The Convener

The round-table evidence session that we are about to embark on focuses on animal welfare issues in the bill. Before we begin, I remind people that there is no need to mention individual cases or names of people. Please speak in general terms, in case we get ourselves into bother. I am sure that everyone knows that; it is just a friendly reminder.

I welcome Libby Anderson, policy adviser at OneKind; Runa Hanaghan, deputy veterinary director at the Dogs Trust; Howard Bridges, chief executive officer of the Edinburgh Dog and Cat Home; Robbie Marsland, director of the Scotland branch of the League Against Cruel Sports; and Penny Middleton, policy manager for animal health and welfare with NFU Scotland.

I will start by asking for general views on the rationale for the increases to penalties in the bill, and I invite witnesses to chime in on why the provisions in the bill are necessary.

Libby Anderson (OneKind)

I am always happy to kick off.

First, I think that the case has been made over several years that the penalties have fallen behind those in other countries and particularly other European countries. There was also a strong view that the punishment element of sentencing—I note that Stewart Stevenson referred earlier to the different elements of sentencing—was very much a public focus. OneKind’s view is that there is a role for that, and that we should have equivalence with other jurisdictions. We are also pleased that the penalties for wildlife offences are coming up to the same level as those for offences relating to the welfare of domestic animals. We think that that is important.

I stress that OneKind’s view is that efficacy of sentencing is important, and that we should not focus only on punishment and revenge, as it were. We want justice, but we also want prevention of offences and protection for animals.

The Convener

I presume that you also want there to be the right mix of approaches to give courts the flexibility to decide on the efficacy of the things that can be deployed—I am mixing up my words, but I mean that courts should have a suite of options.

Libby Anderson

Yes. The fact is that, with judicial policy and the available penalties, community payback orders are much more commonly used in relation to the offences that we are talking about. Those orders have been recognised as a useful tool, but there is an issue about the measures that are attached to them. Unpaid work, which Gillian Mawdsley referred to, is the most common measure that is attached, but there are several. Another one is supervision by a social worker. Of course, a skilled criminal justice social worker with knowledge of animal welfare issues would probably be able to help an offender to consider their behaviour. Another potential measure is to require a convicted person to attend various programmes that are similar to domestic violence programmes such as the Caledonian men’s programme.

As you know from our submission, we believe that retraining and teaching people empathy and understanding for animals could have longer-term and more far-reaching effects in changing people’s behaviour. The committee might like to come back to that later.

The Convener

At the other end of the scale is the organised crime element and serious crimes that require the flexibility of custodial sentences.

Libby Anderson

I could not agree more, which is why we support the higher penalties.

Runa Hanaghan (Dogs Trust)

I echo Libby Anderson’s thoughts on higher penalties. The presumption against 12-month sentences means that the current penalties might not deter people from doing something again.

I also agree with Libby Anderson that we need to be able to reach for support and assistance for people who are struggling. We have heard evidence previously about people whose cases were brought due to negligence and how education and understanding can be accessed and brought through the system.

On organised crime, our organisation is close to that issue and understands the effects of puppy smuggling and puppy farming. The seriousness of what the animals endure during the process that they go through for profit is appalling. We want sentencing to be brought up to a level that reflects the seriousness of the crimes that people are committing.

Finlay Carson

I declare an interest as a member of the National Farmers Union Scotland. I do so because I want to direct my question to Penny Middleton. It is about other types of penalty. We have heard about other methods of punishment. In relation to animal welfare issues, what is your opinion of how effective the use of community payback orders and disqualification orders is in agriculture? Does the bill go far enough with that sort of penalty?

Penny Middleton (NFU Scotland)

For some of the more serious cases, the use of disqualification orders would be appropriate and effective.

On the level of penalties, we need appropriate penalties to deter people, but the first port of call for a farmer who commits an animal welfare offence would be to penalise them under the cross-compliance system. That is a much simpler system, because there is no burden of proof. Some of the fines that people get through the cross-compliance system are significantly higher than some of the penalties that we are talking about under the bill. I see that as a bigger deterrent on the farming side.

Finlay Carson

What are the other witnesses’ thoughts on community payback and disqualification orders?

Runa Hanaghan

Disqualification orders are important, because there are people who might not learn or be empathic towards animals, the processes that can happen and how some animals can suffer.

With disqualification orders, it would be valuable to have a recognised body that holds the information and can share it across various elements of society so that the legislation can be better enforced and upheld.

Libby Anderson

As was mentioned in the discussion with the previous panel, there is room for a register of disqualification orders, because it is hard for enforcement agencies to know whether they already exist.

We expect disqualification orders to be considered as part of the process after conviction, because the 2006 act already requires that. However, there is no open understanding of the reasons why a disqualification order is not given. In our submission, we suggest that an explanation should be given in open court. There might be reasons why disqualification is not necessary, but the presumption should be that that must be considered. Perhaps there should be an automatic ban, but cases will vary. There should certainly be automatic consideration of disqualification and then, if such an order is not given, there should be an explanation of why that is.

Mark Ruskell

The bill is about sentencing, but I want to ask about what we need alongside that to ensure that there are successful prosecutions. Is there a need for sentencing guidelines? Are there issues with resourcing certain bodies? Should the functions of certain bodies, such as the SSPCA, be extended? Are there issues with the process that the Crown Office goes through in deciding whether to take forward a case?

Robbie Marsland (League Against Cruel Sports)

I would like to pick up on the admissibility of video evidence from non-governmental organisations, because I am afraid that I do not understand it. I have been looking at the issue for the past five years. The League Against Cruel Sports first looked at it in relation to fox hunting, but it is relevant to many of the issues that we are looking at. It was explained to me that NGO video evidence is not admissible in a Scottish court, and I know that RSPB Scotland has had difficulties on that front. Notwithstanding that, the league has successfully submitted video evidence to two courts in Scotland, and I was pleased that that evidence was admissible in those cases. I have had an explanation of why that was the case, but I still do not understand it. I am quite close to the matter, and I think that there are others who do not quite understand the system.

Mark Ruskell

Will the bill change the position on admissibility, given that we would be looking at higher sentences?

Robbie Marsland

It seems to me that it is a decision for the fiscal. As I said, I have never really understood why one decision differs from another. There are ways in which it has been explained to me, but I cannot see how the explanation relates back to the law.

Mark Ruskell

Are there other points on what changes need to be made in the bill to bring about successful prosecutions?

Libby Anderson

On admissibility, as I understand it, the police would be able to use surveillance techniques, because the increased sentences would mean that the standards under the Regulation of Investigatory Powers (Scotland) Act 2000 would be met. However, I did not get the impression that the provisions would be extended to NGOs. Like Robbie Marsland’s organisation, OneKind has experience of observing what appeared to us to be offences, but the video footage was not found to be admissible. It was all bound up with issues relating to access to land and whether we were conducting surveillance. It is still a very murky area.

On the other part of Mark Ruskell’s questions, a number of people have mentioned the extension of the SSPCA’s powers to investigate wildlife offences, which we support whole-heartedly. It has 60 trained inspectors who are very knowledgeable about gathering evidence and about all the legislation, and that resource should be harnessed. I understand that the offer is still open.

Runa Hanaghan

We feel that the SSPCA should have more powers to assist with cases, but people from that organisation will be best placed to answer questions on that.

Claudia Beamish

It has been highlighted to me that there could be a conflict of interest in relation to the SSPCA. I make that point in a completely neutral way. We will be taking evidence from the SSPCA next week, but are there any quick comments on that? What would be the purpose of that?

Howard Bridges (Edinburgh Dog and Cat Home)

What would be the conflict?

Claudia Beamish

I ask the question because, in the previous parliamentary session, some people said that it could be seen as a conflict of interest. I do not understand why, and I have never managed to tease that out. I see that nobody has any comments.

The Convener

We could ask the SSPCA if it has heard those views.

Claudia Beamish

Okay.

The Convener

Stewart Stevenson has a quick question.

10:15  



Stewart Stevenson

We are talking about sentencing and I immediately thought about fixed-penalty notices, particularly in relation to what Libby Anderson and Runa Hanaghan said. Libby made the point that community sentences can often be useful in helping people to reset their attitudes and behaviour towards animals. Does that lead to any worry about FPNs, which are, of course, short of criminal sentences? Are there any issues, given that FPNs are offered and have to be accepted before they can be applied? Might we be allowing some people who need assistance towards better behaviours to drop out of the system because we offer them FPNs? I am not expressing a personal view; I think that they are of use, but I want to test whether that is correct in light of what Libby and Runa said on the sentencing issue.

Libby Anderson

The bill allows for regulations to be made to create the fixed-penalty notice regime and those will need to be scrutinised carefully when they are brought forward. Our unequivocal position is that FPNs must be used only for minor technical offences. They would not be appropriate if there is any suggestion or belief that an animal has suffered unnecessarily. That said, in terms of the wider regime and the burdens on local authorities, who will have a major role in using FPNs—I believe that they are very much in favour of them—if their use increases enforcement overall and makes people more mindful of their obligations, we definitely support that. However, FPNs are certainly not applicable to the more serious offences in which an animal has suffered.

Stewart Stevenson

So your view is that FPNs would be appropriate only where there is a welfare issue that has not yet led to an adverse outcome.

Libby Anderson

I am sorry, but that is not exactly our view.

Stewart Stevenson

That is why I am teasing out the matter to see where you stand. I want us all to be clear. Equally, did I hear you suggest that when the regulations for FPNs are drawn up the penalty offered need not be financial? It might be a penalty of another character.

Libby Anderson

That had not occurred to me, but it is an interesting suggestion. If there is a welfare issue, the care notice is the route to go. Mike Radford described very clearly how those operate. I cannot see FPNs being appropriate for welfare offences, but I will let others comment.

Runa Hanaghan

I absolutely agree. I like Stewart Stevenson’s point that FPNs do not always give people access to interventions that might help to support them and manage a future problem. As has been pointed out, FPNs should be held on a register so that they can be viewed and understood if the situation escalates. Those would be really valuable things to have in the system.

Finlay Carson

I want to go back to the penalties under the Animal Health and Welfare (Scotland) Act 2006 and ask whether the current penalties are appropriate for animal offences other than those that are included in the bill. As I mentioned to the previous panel, we are talking about mutilation, poisoning, abandonment and so on.

On the scope of the animals that are included, what are your thoughts on how the 2006 act deals with fish and other marine animals? Is the scope in the bill wide enough and appropriate?

Runa Hanaghan

From a professional veterinary perspective, it is quite a scope when we think about all the different species that we are talking about. The Dogs Trust has raised the issue of the other elements contained in the 2006 act and making sure that things such as mutilation, cruel operations and poisons are brought under the umbrella of the bill. It is important that the sentencing guidelines for such behaviours come within the area of welfare and unnecessary suffering that we are discussing today and that they are brought up to the same level.

Finlay Carson

What about widening the scope and including other animals? We all immediately think of dogs and cats, but what about fish, for example?

Libby Anderson

First, I will comment on the issue of offences. I originally thought that the abandonment offence should be an offence of unnecessary suffering rather than a welfare offence as set out in the 2006 act. That is still my view, because abandonment can lead to severe unnecessary suffering, although I acknowledge that, as was said earlier, section 19 of the 2006 act would be applicable. However, you make a good point.

The scope of the bill covers fish, because they are vertebrates. OneKind suggests that the scope should be extended to cover decapod crustaceans, which would include lobsters, crabs and prawns, and cephalopods, which would include octopuses and squids. The 2006 act probably came a little bit too early for the evidence of their sentience and ability to suffer to be established in everybody’s mind, but there has been a great deal of research that shows that they have such capacity. They need protection, because they are used in restaurants, the food trade, zoos and aquariums. Therefore, we welcome consideration of extending the scope. There is provision to do that by regulation under section 16 of the 2006 act, but this is a good time to air the issue.

The Convener

I will move on to the part of the bill about rehoming without a court order, which I asked the previous panellists about. At the moment, a court order is required in order to rehome animals, but the bill proposes a power to rehome or sell off animals without a court order.

On the one hand, we have the rights of the owners of the animals; on the other hand, we have the rights of the animals involved. Does anyone have views on striking the right balance between those rights?

Runa Hanaghan

From the stance of an organisation that has kennels and shelters and that rehomes animals, I think that the three-week timeframe is appropriate. It would be lovely if it was not as long as that, but the guidelines that have been set out allow for the human element, so that people can appeal and manage the situation.

It seems that, at this stage of the process, animals are seen as property and are held while people wait for a trial. Actually, they are sentient beings and it is very important that we consider their welfare through the process. Allowing them to move forwards, be rehomed and managed better so that they are not hanging on in a shelter environment for a lengthy time until the court convenes and decides on sentencing is an important factor in this.

The Convener

We have talked about the socialisation of animals, particularly puppies, as a big area of concern while the animals are in limbo. I certainly know of a case that has lasted two years. What are the views of the Edinburgh Dog and Cat Home and the Dogs Trust of the impact on animals of being in limbo?

Howard Bridges

There is obviously a cost involved to the charity, but the welfare of the animals is put at great risk because of the length of time involved. In some cases, they can be kept in kennels for up to one or two years. We would prefer to rehome dogs and cats as quickly as possible—that is the only way forward as far as we are concerned.

We support the three-week timescale and we agree with Runa Hanaghan that shortening that would be all well and good. There is certainly an impact on animals and the staff who have to care for them day to day.

Runa Hanaghan

The point about younger animals, including puppies, is important. If they are brought into a kennel environment early, they could be waiting a year or so before sentencing occurs, and dogs have a huge socialisation period in the first four months of their lives. That is being restricted and the dogs will be institutionalised in a kennel environment instead of understanding the wider world in a better way.

The Convener

Obviously, the provision would have an impact from an agricultural point of view. Would Penny Middleton like to comment?

Penny Middleton

Any decision to seize farm animals is a very big one to take. It is not as easy to care for and kennel agricultural animals, and you could be talking about large numbers of animals. The issue of what you are actually going to do with those animals, should you seize them, can be an extremely difficult barrier. If you have to hold them for long periods of time, the limbo period can make it even more difficult. There may be animals that are coming to the age at which they should be going to slaughter or at which various management practices are required.

You need to have a clear plan in your head as to what you are going to do with farm animals when you seize them. It is important to know your pathway, and to have a quick resolution. The only slight concern that we have is the fact that, when there are serious welfare problems on a farm, a mental health aspect in relation to the farmer is often behind them. As such, it is about making sure that the farmer understands what is happening and is given the opportunity to properly engage with what happens to those animals.

The Convener

You have all mentioned the financial impact of caring for animals on charities, which could be using that income in other ways. However, there is also a financial impact on local authorities if they have to care for agricultural animals in a limbo situation.

Penny Middleton

Yes. Obviously, there is a huge cost involved in taking over and caring for farm animals. Although local authorities often try to do it in situ, they still have to pay somebody to come in and feed and care for the animals. If the owner is not co-operative, that might put them in a difficult situation. There tends to be a very difficult, big and brave decision before you are talking about actually seizing farm animals. However, it helps if you have a clear pathway of how you will handle those animals.

The Convener

Before I move to questions from Finlay Carson on this theme, I will bring in the compensation element. Stewart Stevenson brought it up with the previous panel; he may want to revise some of the questions that he asked in order to get a view from this panel.

Stewart Stevenson

Yes—we will also try to get as concise a set of answers. The key question is whether it is appropriate to allow the increase in the value of an animal, post its being seized from its current keeper, to be included in the calculation of the compensation. That was the fundamental question to which I got an unambiguous answer from the previous panel.

Let me also relate that to a more general question from another domain of criminal justice. Heroin is a legal drug; however, almost all heroin is held illegally. We do not compensate heroin dealers, and so why should we compensate people who have animals illegally? Why should we do it at all?

The Convener

Would anyone like to answer, on any of those points?

Runa Hanaghan

I heard Stewart Stevenson’s point about the compensation value, before and after, at the earlier session, and I appreciate it. From a charitable perspective, when we are involved in such cases, a lot of resource is placed into the animals that come into our care. As such, if you consider the value as the outcome, it may well be that the animals have increased in value at the end of a period of care, rather than their having had that value at the beginning of that period. It is a hard question to answer. We understand Stewart Stevenson’s point—which was well made—that the value at the beginning of the process of three weeks, and at the end of the process of three weeks, can be very different.

The Convener

It comes back to the issue of a person being innocent until proven guilty, particularly if they are in a situation in which they have livestock and there is a process so that those animals are not kept in a situation in which there are welfare issues. If a person is not convicted at the end of the process, it has to be taken into account that their business has not gone down the tubes meanwhile, does it not?

Libby Anderson

In fairness, compensation for commercial animals ought to cover that adequately. Of course, it is legal to keep animals. The mischief that is being addressed is when things go wrong, rather than the keeping of the animals in the first place, which is to be encouraged.

10:30  



However, for me, the question throws up the tension between commercial animals that are bred and reared to be sold and therefore have a clear commercial value, and domestic animals that are kept as pets. As far as I can see, the bill will cover all pets. We might say that, as a matter of principle, being able to remove them is desirable, and in many circumstances, we want to extend the protection to all animals. However, a difficult dynamic is involved when we are talking about a relationship of love, care and companionship with a pet, which, arguably, cannot be compensated for. Even bad owners very often love their pets—they just make mistakes or are careless.

I understand that the intention is for the bill to be primarily used for commercial situations involving livestock and traded or trafficked puppies—those are the examples that are normally given. In those cases, it will be possible to manage the compensation in order to achieve an appropriate level and ensure that people are not rewarded for their carelessness. However, if the provision is used for domestic pets, it would be very difficult to estimate the compensation.

Stewart Stevenson

Of course, the bill says that the court can determine that no compensation be paid in any event.

Libby Anderson

Indeed.

Penny Middleton

As has been suggested, the question relates more to livestock. Obviously, if someone takes in poor-quality livestock and feeds them up, they will be of higher value at the end of that. Our position is that it probably should be the value of the animal at the time of seizure that is compensated for. There are costs associated with improving the standard of the animals. I suppose that that could fall under the provision about the “reasonable costs” of keeping the animals and could be taken into account in valuing the animal at the end of the process—more could be taken off to account for the expense involved in getting the animal to a higher value. However, the simplest and fairest approach would probably be to use the value at the time of seizure.

Claudia Beamish

I think that Runa Hanaghan said that animals are sentient beings and not property. That is an interesting remark, and I am simply trying to understand it. It connects to Stewart Stevenson’s question about whether compensation is really appropriate for a puppy farmer. That has not been answered, although I understand that there are many reasons why it would not be. A drug dealer is not compensated for their property, because it is illegal property, and surely puppy farming is illegal. I would like to tease out those issues a bit further.

Finlay Carson

Puppy farming is not illegal.

Claudia Beamish

Okay, but it will be when Christine Grahame has done her member’s bill on that.

Stewart Stevenson

It is illegal if it is unlicensed.

Finlay Carson

Not necessarily.

Claudia Beamish

I understood that it was, but I stand corrected.

Runa Hanaghan

To clarify, I am not legally trained so, when I talk about property, I suppose that I am trying to marry up the idea of an object that is seized from a house and that can be kept until a court convenes to provide sentencing, with the idea of an animal that is seized. That is a very different piece of property, if that is what we are talking about. An animal is a sentient being, and holding it for a lengthy period can create welfare problems. In essence, the bill is trying to address the welfare of the animals and how they are managed.

I take Claudia Beamish’s point. Puppy farming is a very challenging area to address. It is not illegal to have a dog but, given the effects of puppy farming on the dogs that are in the care of certain people who are perhaps related to organised crime and other areas in society, and that the profits far outweigh the value of any animals that are seized, we must consider more closely the penalties to address the issue. That goes back to the penalty element, rather than the compensation element.

I feel that within the parameters of what we are discussing, it is very important to take welfare into account. If people are actively negligent—not doing it unknowingly—then that is puppy farming and it is something we need to define within what the bill introduces. That concern comes through in your questions in the last couple of hours. You are looking at where we are making these decisions. I agree with the point about guidelines around sentencing, because I think that helps us to weigh up where each of these areas is positioned.

The Convener

Libby, do you want to come in on that?

Libby Anderson

On compensation, I want to briefly reiterate, because what Stewart Stevenson raised is important, that compensation would be forfeited. The bill says that,

“Subject to any order of a convicting court ... the relevant owner’s right to compensation is forfeited (in whole or in part)”.

The court could provide for that: I think that it is unlikely that compensation would lead to anyone profiting by their negligence or cruelty.

The Convener

Finlay Carson has a quick question before we move on to look at Finn’s law.

Finlay Carson

It is clear that there is a range of implications of the proposals for different types of animals, whether they are commercial animals, companion animals or whatever. We want to ensure that a robust process is in place so that selling or rehoming is done safely and appropriately. However, is the panel content that the agencies that would be in receipt of the new powers in the bill are sufficiently accountable and otherwise equipped to use those powers effectively and fairly?

The Convener

Does anyone want to take that on?

Libby Anderson

Yes.

The Convener

That is just a yes.

Runa Hanaghan

I presume that you mean the SSPCA and the ability of its staff. I agree.

The Convener

Any other views on that?

Robbie Marsland

Yes, I agree.

Mark Ruskell

I want to look again at the scope of the bill, because it extends the potential for maximum sentences for crimes where there is unnecessary suffering and fighting, but excludes some other areas. What are your thoughts on that? It does not include poisoning, for example. How appropriate is that catch-all of “unnecessary suffering” and are there other areas? For example, if I poisoned a greyhound, would that be unnecessary suffering, or would it be poisoning?

Libby Anderson

Are you talking specifically about the animal health and welfare section, or are we moving into the wildlife side as well?

Mark Ruskell

Across both those areas.

Libby Anderson

As Mike Radford said, it would be covered by section 19 of the 2006 act, on unnecessary suffering, but it is a fair point. If the poisoning section were used, it would be a lesser penalty, which would be a matter of concern. The other thing that we noticed in the wildlife section is that the possession of pesticides remains an offence at the lower end of sentencing, although the welfare implications and the public safety and health implications of possessing pesticides are potentially very serious. We think that that sort of penalty needs to be reviewed.

Mark Ruskell

Would that include the conservation impact of using a pesticide or digging out a badger sett, for example? There is an animal welfare implication, but there are wider implications for the environment. I am interested to know whether you think that the provisions in the bill capture those wider impacts and the severity of crimes.

Libby Anderson

The new penalties proposed under the Protection of Badgers Act 1992 and the Wildlife and Countryside Act 1981 are considerably increased, so that the highest sentences will be a five-year maximum sentence and an unlimited fine. It is very varied, as you know, for different categories of offences, but the higher level, which I think would include the digging out of a badger sett, would attract a much higher sentence.

Robbie Marsland

I reiterate what Libby Anderson said about possession of pesticides and the level of sentence that that gets. In our experience, it is not unusual to find caches of pesticides hidden on estates. If those are used in the way that we suspect, it leads to not only a high animal welfare impact but the illegal targeting of protected species. It would be worth considering the level of sentence for possession of pesticides.

Angus MacDonald

The panel will have heard me ask the previous panel a similar question. We saw broad support in the consultation for the introduction of a Scottish Finn’s law. It is worth noting that a small number of respondents suggested that the bill should go further and require harsher penalties for attacks on service animals. One respondent suggested that there is a case for introducing a new offence of intentionally or recklessly causing injury to a service animal. Are the proposals in the bill for a Scottish Finn’s law an appropriate mechanism for increasing protection for service animals? What implications could the change have?

Howard Bridges

I fully support Finn’s law. I suggest that, as well as service dogs and other service animals—we talked about horses earlier—assistance dogs such as guide dogs should be included.

The Convener

The previous panel mentioned that.

Angus MacDonald

I think that Runa Hanaghan’s submission on behalf of the Dogs Trust mentioned extending the law to assistance animals.

Runa Hanaghan

Yes, we fully support that. The point was clearly made by the earlier panel about the huge impact of an incident not only on the person but on the animal, and about the fact that a person cannot always appreciate that there is danger in the area where they are standing with their assistance dog. It is very important to increase the scope of a Scottish Finn’s law to consider guide dogs and other assistance animals.

Libby Anderson

Our position is that any animal that is made to suffer by humans deserves equal access to justice. The bill will remove the anomaly whereby service animals were not receiving the same justice.

We are slightly concerned that the definition is too narrow. It is based on the custodian—the police or prison officer—and therefore applies only to police dogs and police horses. I fully support the view that the legislation should be extended to other assistance dogs, which have to put themselves in a position of protecting their owners.

It has been said in some quarters that there should be a more severe penalty for attacking a service or assistance dog. In principle, we believe that the suffering of the animal is the same, whether or not it is a service animal. However, if that view persisted, it would be possible to create a statutory aggravation, so that the penalty for the cruelty to the animal would be the same but with the addition of an applicable statutory aggravation, as there is for a racially motivated crime. That would be one way of addressing public disapproval about attacks on service animals.

10:45  



Stewart Stevenson

I wonder whether the test is something slightly different, in that the likelihood of suffering is increased in service animals compared to animals of the same type that are not service animals. We, as humans, are training those animals and putting them in positions of increased danger by our choice rather than the choice of the animal. Although the outcomes might be the same, the animals are not volunteers. They are exposed by human action to the likelihood of increased suffering, and it is that exposure that we as humans choose to make that justifies providing additional protection to those animals. If the bill said something of that character, it would relieve us of considering whether it is the owner or the person in control of the animal that defines whether the animal should be treated in a differential way in respect of sentencing. That occurred to me on the hoof as I was listening and it is probably an incomplete analysis, but what do you think about it?

Libby Anderson

I think that your point is that society owes animals that assist us a greater duty of care, so our care for them must be reflected in the available penalties. That is why the offence could be considered to be an aggravated offence.

Runa Hanaghan

I support Stewart Stevenson’s view on that. That is an important point to make.

The Convener

Let us move on to talk about wildlife crime.

Claudia Beamish

From an animal welfare perspective, what are the implications of the proposed increases to penalties for wildlife crime offences?

Robbie Marsland

The key word for me is “deterrent”. It comes down to how wildlife crimes are considered by society in general and by our courts and how wildlife is considered by our society. Words such as “pest” are used. Particular animals are described using language that makes things easier and, seemingly, less thought has to be used about controlling those animals than others.

The League Against Cruel Sports is moving into looking at the reform of grouse moors in Scotland, and that has taken us into the issue of the use of general licences. It seems to us that, with the use of fairly low levels of corroboration in evidence, vast swathes of animals are killed because they are deemed to be pests. The word “pest” is used because the animal endangers another animal. Very often, that other animal is a red grouse. The reason why red grouse are protected is to ensure that there are more red grouse to shoot for entertainment. As members can imagine, an organisation that is called the League Against Cruel Sports is not best pleased by that situation. The success of a grouse shooting estate is measured by the number of grouse that are shot on it. That means that it needs to have more grouse, which means that grouse need to be protected from so-called pests.

The League Against Cruel Sports recognises that general licences are permissible under the law, but there are grey areas. A professional whose job is to ensure that there are as many red grouse as possible might look at using methods that go beyond the general licence and become illegal. We welcome any extension of the penalties because of the deterrent effect.

Vicarious liability is also very important. We heard earlier about a shop assistant selling alcohol to a minor, in which case it is the owner of the off-licence who can be found guilty of an offence. There is a world in which the owner of the off-licence demands that the shop assistant sells alcohol to minors because that can bring in more money. I do not think that that happens in this context. I have seen many examples of successful prosecutions of countryside professionals whose job is to make sure that there are more grouse, but the levels of sanction are not a deterrent. In a recent case, which I will not name, I was particularly struck by the proceedings and by the reaction of the individual and the reaction of the media. It became quite a media circus. An individual had been prosecuted for a number of wildlife crime offences, and there was a big media turnout on the day of the sentencing. The question was, “Will he go to jail?” because the range of offences was hideous; they were broad and nasty and covered the gamut of wildlife crimes that are possible in that situation.

Two things happened on that day. First, the sheriff made it clear that he felt that he should have been able to give a custodial sentence but could not. He felt that the community order did not reflect the scale of the crime that was committed. Secondly, there was a media hoo-ha outside the court because the media wanted to get a photograph of the individual concerned. The media mistakenly all went around to the back of the court and, when the individual who had just been sentenced came out the front, he danced a jig of relief and satisfaction. I watched him do it. He ran down the road and was followed by the media, and the picture that was published was of the individual putting two fingers up to the photographers.

As somebody working in the world of animal and wildlife welfare, I stood there thinking about what that says about the level of acceptance of deliberate acts of cruelty to animals that are carried out to ensure that there are more of another animal that can be shot for entertainment. I went away that day thinking that that is not right. There should be a deterrent. There should be a feeling that, if I do something wrong in this way, I will go to jail, and if I make my staff do something like that, I should also be at risk of going to jail.

That is why I can only commend the bill for its deterrence impact. I like the flexibility in the bill. It recognises that animal welfare can be affected by negligence. That is a different world, in which we are talking about re-education and learning about socialisation with animals and the way in which we relate to animals. However, if it is your job to kill as many animals as possible, I do not think that we can do much in the way of rehabilitation.

As I say, we welcome the bill more or less as it stands, but lots of steps need to be taken in the public domain to give people a greater understanding of the sentience of all animals and why some animals are declared to be a pest that is simply to be eradicated.

The Convener

Does anyone else want to answer Claudia Beamish’s question?

Runa Hanaghan

I do not have a position on the wildlife crime side of things.

Claudia Beamish

We have touched on the SSPCA in relation to powers. As was said earlier, and as we all know, many of these crimes and alleged crimes are committed in remote rural areas. Are there any views on the possible alteration to and increase in the powers of the SSPCA in relation to wildlife crime?

Robbie Marsland

I will speak about the crimes that happen away from the public eye, which I have had a lot of experience of over the years. It is difficult for the police to be there. As a citizen, I know that personal security and property theft are where police priorities lie. They need to do more, but I am not surprised that they do not have the resources to be out in the middle of the countryside looking at issues that they might not even understand.

Fox hunting is not in the remit of the bill, but it is a classic example. It is very difficult to understand what is going on in a fox hunt; it is difficult to understand evidence that would make one suspect wildlife crime. I was shown what looked to me like a pole in the middle of a field, until it was pointed out that there was a hole drilled in the top and a bent 6-inch nail in the bottom right-hand side. Those demonstrated that it was being used either as a decoy position or as a pole trap, which is illegal. I would not have known that, and neither would many police officers, but there are people who would. It is important to make sure that organisations such as the SSPCA, the RSPB and the League Against Cruel Sports have the opportunity to be out there and to report on that to the police. They should not be impeded from doing that.

Mark Ruskell

To what extent would the increase in maximum sentencing change the policing model? A written parliamentary answer recently reported that the trial in the use of special constables in the Cairngorms did not result in any convictions over its two years. What more could the police do on their own? If the sentencing increase comes in, what would happen operationally—would it force a change in thinking or a prioritisation of resources? What is the solution to this issue? Five years could be a deterrent, but only if people are caught, evidence is protected and a prosecution is successful.

Robbie Marsland

The creation of wildlife crime officers is a very good thing. However, the role is voluntary and heaped on top of other responsibilities. The question is asked, “Who wants to be the wildlife crime officer?” and a person answers, “Oh, go on—I will.” Their levels of knowledge are variable, as is how much time and effort there is to do the work, as we can imagine. I would much prefer to see a designated wildlife crime officer who is paid to do the role and who can build up a body of knowledge and experience and so understand that a pole with a hole and a nail is a suspicious item. A voluntary wildlife crime officer would also build that up over a number of years.

Finlay Carson

The bill will increase penalties, fines and potential sentences, which could be argued would put more emphasis on the burden of proof in a case. It is exactly right that, for wildlife crime or identifying rural commercial animals that are suffering, the level of expertise would have to go up a notch and additional resources provided. Increasing penalties and sentences will be irrelevant if we do not have people on the ground. Are there enough resources to make any difference when the bill is introduced?

Robbie Marsland

The level of resource that is of value is what happens in court. The demands on organisations such as mine and on the police in trying to meet the burden of proof are already high. That is because the resources that are available to those who are alleged to be involved allow them often to be represented by people who would never usually be seen in a sheriff court. Again, I will fall back on my experience in relation to fox hunting. The offence that is being dealt with is a summary one, but it is dealt with by a QC. The police and the procurator fiscal know that, so we are not talking about the same levels of evidence as we would be in relation to a summary offence. My personal opinion is that that means that the case has to be stronger than another summary-level case, because of the amount of attention that will be paid to the evidence.

11:00  



Finlay Carson

However, I suppose that bringing in new legislation will be irrelevant if we do not have police or members of other agencies there to catch people. It is a bit like reducing the speed limit to 20mph on rural roads. That is probably pointless because, if there is no one there to enforce that law, it will have no effect. Are there any concerns that the bill, which appears to be one that should be welcomed generally, will be pointless if we do not have the resources to police the legislation effectively?

Robbie Marsland

I go back to the idea of deterrence. It will be an effective deterrent.

On the issue of speeding, of course, I always keep to the speed limit. However, if I have seen police operating a speed camera in the area, I might make sure that I am much slower than the speed limit during the following weeks. That is why we welcome the deterrent effect. We believe that vicarious liability would extend that, because it would mean that others were concerned as well.

The Convener

We have run out of time, but Stewart Stevenson has a short question to round off the session.

Stewart Stevenson

I was a bit surprised to hear the suggestion that summary cases have different criminal evidence requirements from solemn cases. I think that the difference is that, in summary cases, the sheriff determines guilt or innocence, and there are more limited sentencing powers, whereas, in solemn cases, it is the jury that determines guilt or innocence, and higher sentences are available. If Mr Marsland knows different, perhaps he can correct me, but I think that the evidence requirements are identical.

Robbie Marsland

I go by personal experience. I have served on three Crown Court juries—two at the Old Bailey—and I have sat for days and days in the sheriff court, watching what goes on. My observation, which is a purely personal one, is that the level of the application of the law is quite different in those two settings.

Stewart Stevenson

I, too, have been on a jury, and I have been in the sheriff court on a large number of occasions. Further, I was a member of the Justice Committee of this Parliament and attended 278 of its meetings. I strongly rebut the idea that the Scottish summary system is in any way inferior to the solemn system. In fact, you are more likely to get an outcome that is less open to challenge if the case is dealt with by a professional adjudicant of guilt or innocence, in the form of the sheriff.

The Convener

We are straying into the remit of another committee. Before we close this evidence session, Claudia Beamish has a final question.

Claudia Beamish

I see that Libby Anderson wants to say something, and it might be more important for her to speak than for me to do so. However, I will just say that, as a layperson—I proved that earlier in the meeting—my understanding is that the opportunities for police surveillance are different in cases involving a serious crime. If that is the case, that is particularly important with regard to wildlife crime. Of course, I am happy to be corrected.

The Convener

Libby Anderson can have the final word.

Libby Anderson

I understand the point that Robbie Marsland made. I note that Stewart Stevenson is correct to say that the standard of proof is the same in summary and solemn procedures, but it might be important to recognise that people’s knowledge of the procedures and the sentences that would be available at the time of investigation and enforcement might help to concentrate minds more. When the police and the Crown Office and Procurator Fiscal Service allocate resources, they would be more inclined to look seriously at an offence that attracts a much higher sentence. That would apply to both animal welfare and wildlife sentences.

On Finlay Carson’s point about enforcement, it is true to say that local authorities find the enforcement of the 2006 act to be quite burdensome, as there are no resources attached to it. The fixed-penalty notices and the provisions around the disposal of animals will remove some of that burden. We all accept that the overall effect of the bill will be to raise the level of enforcement.

The Convener

That is a good note to end on.

That concludes the committee’s business in public. At our next meeting, on 10 December, we expect to hear further evidence on the bill.

We now move into private session.

11:05 Meeting continued in private until 12:21.  



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Third meeting transcript

The Convener (Gillian Martin)

Welcome to the 34th meeting in 2019 of the Environment, Climate Change and Land Reform Committee. Before we move to our first agenda item, I remind everyone to switch off their mobile phones or put them on silent, as they may affect the broadcasting system.

I highlight to our panellists that you do not have to press any buttons on the console. Broadcasting does all that for you. All that you need do is speak.

Agenda item 1 is evidence at stage 1 on the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill. The first panel will focus on wildlife crime issues that are connected with the bill. I am delighted to welcome Ian Thomson, head of investigations, RSPB Scotland; Karen Ramoo, policy adviser, Scottish Land & Estates; Ross Ewing, political and press officer, British Association for Shooting and Conservation Scotland; Dr Ruth Tingay, raptor ecologist, Raptor Persecution UK; Eddie Palmer, chairman, Scottish Badgers; Les George, gamekeeper and Scottish Gamekeepers Association committee member; and Liz Ferrell, Scottish Environment LINK wildlife crime sub-group convener and Scottish officer, Bat Conservation Trust. Good morning to you all.

We will move to questions. As we have a panel, we will not necessarily direct questions to each of you. If, as we discuss the various themes, you want to answer or give your point of view on anything, just raise your hand in the air. We will note that and get to you eventually.

I will start off by asking about the evidence base for increasing penalties for wildlife crime. What are the wildlife crime trends? How are the available penalties being used? Are there instances where those penalties have been considered insufficient? If anyone wants to come in and give us a view on what has been happening to date, I would be very grateful.

Liz Ferrell (Scottish Environment LINK)

I will give the example of the freshwater pearl mussel. There was an incident on the River Lyon relating to a hydro scheme that was designed to service 600 homes. It is reckoned that the scheme did about 100 years’ worth of damage, with hundreds of freshwater pearl mussels being killed. They are critically endangered globally, and there is an important population in Scotland. The basic repair to that catchment is reckoned to be almost £1 million, yet the company involved was fined £4,000 in total. As such, the deterrent is just not there.

In relation to the Bat Conservation Trust, the most common offence is to do with small or medium-sized developers. Bats are not factored into projects, which leads to corners being cut. Licensed bat workers have made us aware of examples in which they have carried out surveys for developers only for the developers to take the results of where they found bats and—basically—get rid of that evidence, then get in a different ecologist to do another survey that showed that no bats are present.

The Convener

Are the penalties for doing that almost factored in?

Liz Ferrell

Yes. It is cheaper to not get a survey done. The cost of a bat survey and mitigation could easily go up to £10,000, for a larger-scale project, and a fine for roost destruction—this is an example from Scotland—might be £900. Similarly, in 2014, a senior employee of a lettings company who blocked off a soprano pipistrelle roost with 500 bats in it was fined just £240, which is not even a day rate for an ecologist to do a survey.

Ian Thomson (RSPB Scotland)

One of the biggest issues with establishing trends in wildlife crime is that most of the crime is unseen and undetected. Just looking at an annual body count, for example, gives us no idea what is actually going on, because we are dealing with a sample of an unknown amount.

When it comes to measuring the impact of criminality, it is much better to use methods such as population surveys and so on. For example, the hen harrier population in Scotland declined by something like 27 per cent between 2004 and 2016. Similarly, the satellite tagging review that was commissioned by the Scottish Government four years ago showed that a third of young tagged golden eagles were disappearing in a suspicious fashion in areas that were being managed for grouse shooting. However, that review involved only tagged birds. If you extrapolate that into the actual number that are likely to be being illegally killed, you come to quite a staggering figure.

We have to accept that wildlife crime happens in places where it is not witnessed, and it is easy for the individuals who undertake it to cover up the evidence. They are obviously not going to leave a poisoned or shot bird lying around for hillwalkers, the police or whoever to stumble across. We have to look at the issue very much in that context.

Karen Ramoo (Scottish Land & Estates)

It is important that we have current statistics when we are assessing wildlife crime. The fact that we have not had an annual wildlife crime report from the Government in the past three years is unhelpful—I think that the previous one came out in 2015. In addition, raptor maps are usually released annually, but we have not seen those recently either. However, when we consider the work that the partnership for action against wildlife crime in Scotland—PAWS—group has done, we can see that there has been a reduction in most types of wildlife crime.

The main issue in relation to wildlife crime involves poaching and hare coursing, which are still at high levels. Those crimes are linked to other crimes, including serious organised crimes, which have serious impacts on rural communities.

Again, I stress that it is crucial to have up-to-date data so that action can be targeted.

The Convener

Ian Thomson said that the exact level of crime cannot be known, because much of it is unseen and unprosecuted, but do you accept that an increase in penalties might result in additional decreases in wildlife crime?

Karen Ramoo

Yes, I accept that they could act as a deterrent.

Ross Ewing (British Association for Shooting and Conservation)

For the reasons that Ian Thomson highlighted, the recorded numbers of wildlife crimes in Scotland are a sample of the amount of crime that is going on. However, the figures show that there were 255 recorded incidents in 2013-14 and 231 in 2016-17, which shows that there has been a slight decrease in the overall number of recorded wildlife crimes. However, wildlife crime is still at a substantial level. That means that there is a need to impose additional penalties in order to bring down those figures even more. My organisation supports that, but I echo what Karen Ramoo said about hare coursing and other poaching-type offences, including people hunting with dogs illegally. In my office, we have received a number of phone calls about those offences happening in places such as Angus and the north-east. That is reflected in the statistics. There has been a sharp rise in hunting-with-dogs offences, which have gone from 29 in 2013-14 to 42 in 2015-6. That is a real issue for us, and it is important to highlight the fact that that kind of crime is going on. Those are not necessarily the crimes that we hear about, but they are just as important as incidents of raptor persecution and other crimes.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

I want to check and test what Ian Thomson said. What I heard—I might have misunderstood him—was that surveys would be used to establish levels of criminality. I am getting a nod. I am very alarmed by that. It is perfectly proper to use surveys to provide intelligence, but that is different from measuring criminality.

I share the concern about raptors, so I am not coming from another position, but the depletion of species is not occurring simply because of crime. I will give an example. When I was a lad, there were lots of kestrels around; now there are very few. I do not think that the problem is wildlife crime; I think that other factors are the problem.

I want to be clear that Ian Thomson has in his mind the distinction in relation to using surveys as intelligence that says that the numbers have gone down, so we need to look for crimes and other causes. I want to ensure that we agree on that.

Ian Thomson

Absolutely. Population surveys are the first level of evidence on what is happening to raptors—

Stewart Stevenson

I am sorry, but I will come straight back on that, because I do not accept that they are evidence in the context of wildlife crime. Is it not intelligence that leads you to the need to gather evidence rather than intelligence intrinsically being evidence in its own right?

Ian Thomson

I was going to say that surveys are the first layer of evidence in trying to understand what is happening to a population. For example, a survey of hen harriers was carried out in 2010 throughout the United Kingdom. The national surveys are co-funded by the statutory nature conservation agencies in the four countries. Another survey was carried out in 2016. That survey showed a substantial decline in the hen harrier population. If we consider that in the context of an overwhelming weight of peer-reviewed science that looked for the reasons why hen harriers were declining and established that targeted and deliberate persecution on grouse moors was one of the key drivers of the decline, we start to build a much clearer picture. That is a much clearer picture than we will get from one dead harrier with shotgun pellets in it being found on a grouse moor.

Stewart Stevenson

This is my final question on this issue, convener.

The Convener

Good.

Stewart Stevenson

Forgive me, but does the survey not tells us that we need to look for the evidence?

Ian Thomson

Yes—absolutely.

Stewart Stevenson

A survey is not intrinsically evidence.

Ian Thomson

No, but we have to consider everything together.

Stewart Stevenson

That is fine. As long as we share that viewpoint, I am quite content.

Ian Thomson

Yes—absolutely.

The Convener

I want to return to getting answers to my initial question.

Eddie Palmer (Scottish Badgers)

It is rather complacent to think that wildlife crime is going down. We are talking about what is discovered and prosecuted, which is a different issue. The Government’s wildlife crime reports give a not very easy-to-read account. We know of incidents in which things have happened to badger setts. In order for them to be accepted and investigated as crimes and to get them to court, an extremely long and laborious process is involved, and that rarely happens.

It could be that more incidents are reported to us as a charity by the public, but the numbers of incidents that come to us are going up each year. The figure for 2019 is markedly greater than that for 2018. There are various issues. It is very difficult to get a case involving a damaged badger sett to court because getting evidence to give credence to what the police would say is difficult. There might be evidence that a badger sett has been dug out completely, but it is extremely difficult to find a perpetrator and evidence against them. However, it cannot be said that badger setts are not being dug out. That is the issue.

The trouble is that few cases have gone to court over the past few years. I think that, in the Crown Office and Procurator Fiscal Service, eight badger cases have been prosecuted in five years, as opposed to maybe 60 incidents a year that might be crimes. I accept that they would not all be classified as crimes, but that figure is quite worrying.

With regard to the sort of figures that Liz Ferrell quoted, the only example that I can think of is from some time ago, when a developer built a house too near a badger sett up in the north of Scotland, having been told not to do it. That broke the licence conditions, and the developer duly went to court and was fined £800. That might seem quite a lot, but the extra house that had been built was sold for £300,000. The anecdotal evidence that we pick up is that the large developers keep to the rules. We deal more with issues that are to do with badger setts than we do with issues that are to do with badgers. You will hear more about badger crime from the Scottish SPCA, as we rarely deal with it.

I am sorry, but I have lost my drift.

10:00  



The Convener

Okay. I will come to Liz Ferrell, and then Colin Smyth has questions.

Liz Ferrell

It is a brief point. Scottish Environment LINK does not believe that wildlife crime is decreasing. Eddie Palmer gave figures relating specifically to badgers. We consistently provide information for the Scottish Government’s annual wildlife crime report. For bats, we average about 139 cases of wildlife crime a year and that is showing no sign of decreasing. To pick up on what Ian Thomson said, it is likely that there is lots of underrecording in remote parts of Scotland.

Colin Smyth (South Scotland) (Lab)

I turn to the issue of how wildlife crimes have been categorised in the bill. Are the proposed penalties and procedures proportionate?

Ross Ewing

It is important to be mindful that, in essence, two tiers of wildlife crime penalties will be introduced. Tier 1 will have a maximum penalty of five years in prison and/or a fine with no limit and, for tier 2, which is for lesser crimes, the maximum is one year in prison and/or a fine with a limit of £40,000. The tier 2 penalties are for issues to do with damage to habitats, nests and things like that. The important thing is that a bit of due diligence needs to be exercised by the procurator fiscal in that regard. That is because there are different kinds of damage to nests or habitats, and some types of damage are more severe than others. A little bit of common sense needs to be applied in deciding whether a crime is a tier 1 or tier 2 offence. If someone burns a vast swathe of moorland and kills absolutely everything on it, that is damage to habitat and would therefore be a tier 2 offence but, actually, the ramifications are so serious that it would probably merit being a tier 1 offence.

That issue is not entirely clear. Each kind of wildlife crime has different levels of severity. I am not entirely sure that it is workable to assign the penalties on the basis that tier 1 is when someone kills an animal and tier 2 is when someone destroys its nest, for example. As I said, a bit of due diligence will have to be done in deciding what happened.

Les George (Scottish Gamekeepers Association)

From a gamekeeper’s point of view, the proposed five-year jail term is a game changer. Most gamekeepers will not be able to pay £40,000, and a jail term is not just a jail term for a gamekeeper—you lose your job, your house and your living, really. You will never be a gamekeeper again if you are convicted. You will not be able to have firearms again, so you will be out of the job altogether. That is a huge thing. It is a huge deterrent.

Karen Ramoo

I support what Les George and Ross Ewing have said. The proposed penalties are huge deterrents. To go back to Ross Ewing’s point, I do not know whether we will touch more on this later, but impact statements should come into play to assess the level of impact that the crimes have and what that means for various species. There needs to be consideration of the whole ecological impact that a certain wildlife crime could have on certain populations in a certain area.

To pick up on what Les George said, the penalties as a whole will act as a real deterrent. It is not just a case of a fine or jail sentence; it is potentially the end of somebody’s career. SLE is very supportive of the proposed penalties.

Finlay Carson (Galloway and West Dumfries) (Con)

On deterrence, is not it the case that under current legislation a gamekeeper who was convicted would potentially lose his job and the likelihood of being employed as a gamekeeper in the future? Therefore, all we are talking about is whether a gamekeeper can afford £40,000 or a lesser fine. Are not the penalties severe enough now? Is what is proposed really a deterrent?

Les George

A five-year jail term will mean that more people will go to jail than has been previously been the case. To extrapolate, that means more people being out of a job and out of a house, with no way of supporting their family.

Ian Thomson

One issue is that the courts hardly ever impose the maximum penalty. For many years, the courts have been able to impose a £5,000 fine and/or a six-month custodial sentence for many wildlife offences. Only one custodial penalty has been given in Scotland to an individual for raptor persecution offences since the Wildlife and Countryside Act 1981 came into force. When that individual was convicted, back at the beginning of 2015, we all thought that the sentence would be a game changer and that raptor persecution would suddenly cease to be an issue. That has not happened.

In a recent case in the Borders, an individual was convicted of multiple offences. The courts can impose a custodial penalty for each offence, so those of us who were closely involved in that case were convinced that there was a high chance of a custodial penalty. However, a community order was given.

Is that down to direction? Obviously, the courts are independent, but we do not see the big penalties being given: usually, what the courts impose is a mere fraction of what is available to them. That is a reason why some wildlife crimes have continued unabated for so long.

The Convener

Les George, what is your view of a situation in which a gamekeeper feels under pressure from their employer to do something that breaches the law? Does that happen?

Les George

No—I would say that that is not the case.

The Convener

So, is it right to say that the gamekeeper is responsible?

Les George

Yes. Everyone is responsible for their own actions. That is how it is. If you do the crime, you do the time.

The Convener

Should the landowner be completely exonerated?

Les George

There can be vicarious liability; there have been a couple of cases of that. That is a matter for the police.

The Convener

We will come on to vicarious liability in a wee while.

Dr Ruth Tingay (Raptor Persecution UK)

I would like to follow up on Ian Thomson’s point about how the maximum sentence is rarely given. Of course, that is a matter for the courts, but a bigger issue is that it does not really matter what the penalty is, because the penalty alone will not act as a deterrent; the risk of being caught is far more important. If the criminal considers that the risk of being caught is pretty slim they will commit the crime, because the risk is such that it is worth doing so. Therefore, a much bigger effort is needed on the enforcement side. I am not saying that that is easy. We all know how difficult it is to investigate wildlife crimes, especially in remote areas. However, the two must go side by side; it is no good having one without the other.

Liz Ferrell

Scottish Environment LINK thinks that the bill does not go far enough to protect habitats, and we think that the bill should provide for more wildlife offences, such as those that involve raptors and badgers, to be triable either way. We welcome the increased penalties for offences that involve bats, with the option to use the upper courts and the potential to impose unlimited fines.

However, there is no consistency. A bat should not appear to be more important in law than a hen harrier, and I am sure that other witnesses can provide evidence for why badgers’ resting places and breeding sites should receive more protection.

Ross Ewing

Some important points have been made around the room. I noticed that there is, on the committee’s question paper, a point about banned pesticides. I point out that there is no legitimate reason to have those pesticides in Scotland. At the moment, I do not know on which tier an offence in that regard would be; I am minded to say that it should be a tier 1 offence. South of the border, the situation is different, but up here there is no need to have them.

The Convener

The presence of the pesticides would be evidence enough.

Ross Ewing

Indeed; my argument is that there is no need to have illegal pesticides, so those who do should bear the full brunt of the law.

Karen Ramoo

I fully agree that penalties alone will not act as a deterrent. There must be education about wildlife crime and the impact that it can have, and there must be awareness of the maximum penalties that can be applied to a person who commits a wildlife crime. More training and support on detection for the police are also important. However, a consistent approach being taken to tackling wildlife crime will act as a deterrent, in itself. This goes back to the point that Ian Thomson made: when a case is brought to court when someone has committed a crime, it should be shown that they will feel the full force of the law.

Mark Ruskell (Mid Scotland and Fife) (Green)

The bill obviously deals with custodial sentences and fines, but how effective have other sanctions been, for example, suspension of general licences on estates or community payback orders, which have already been mentioned as not being effective? Are there any thoughts from around the table on how the suite of other available sanctions have worked—or not—in deterring wildlife crime?

Dr Tingay

The general licence restriction is very interesting. There have been only four or five cases since the sanction came into force. We have seen that once the general licence has been removed, the estate can simply apply for an individual licence to carry out the same act of killing so-called pest birds, but under slightly more scrutiny from Scottish Natural Heritage. That just means that they have a bit more paperwork to do: it is not a sanction at all.

Mark Ruskell

Has that happened in the examples in which a general licence has been withdrawn?

Dr Tingay

I know that two estates have applied for individual licences. After one of those estates got an individual licence, further alleged offences were uncovered and the individual licence was removed from the estate, pending an investigation by the police. I do not know how far that investigation has gone: clearly, however, the general licence restriction was not a deterrent.

Ian Thomson

On that, it strikes me that imposition of a general licence restriction is a tortuous process, and that delays between offences being confirmed by police investigations on landholdings and a general licence restriction being imposed mean that it is currently taking years to implement the restrictions. I agree that a general licence restriction hardly seems like a penalty.

It can also be argued that such a restriction does not benefit biodiversity, because it is widely acknowledged that some control of generalist predators, such as corvids, can be of conservation benefit, and that, if that ability were to be removed, the wildlife in the area would be penalised as much as the managers of the estate on which the offences were committed. A much more effective sanction would be to remove the motivation for committing such crimes, which is invariably to benefit grouse shooting. The right to shoot grouse being removed for a year or a couple of years would be much more robust and effective.

Ross Ewing

I disagree with Ruth Tingay and Ian Thomson on the effectiveness of the restriction of general licences. It is important not to underestimate the pivotal role that general licences play on shooting estates in Scotland, where they are an integral part of what the estates do. Restricting a general licence will make it very difficult for estates to carry out an integral function.

10:15  



Ruth Tingay mentioned applications for individual licences—there is a litany of species for which individual licences would need to be applied for. Moreover, an estate’s having a restriction against it reflects very badly on it, and information about that is publicly available online. I know a number of people who would probably not visit an estate that had a restriction purely on the basis that they would know that wildlife crime was probably being committed there.

The other thing to note about the restriction of general licences is that it takes place under the civil burden of proof—there is no need to surpass the criminal burden of proof, as there would be otherwise. That is a really useful tool. Currently, the police and SNH meet every three months. Perhaps if they met more regularly to review the situation, that might result in a few more restrictions being put in place. As a result, restrictions might act as more of a deterrent.

The Convener

Does Stewart Stevenson have questions?

Stewart Stevenson

Are you bringing me in to ask about fixed-penalty notices?

The Convener

Mark Ruskell is indicating that he wants to come back in, so I will bring you in, in a minute.

Mark Ruskell

Have business that have general license restrictions been affected by them? Have they gone bust?

Ross Ewing

BASC has done research into that. We carried out a big survey, to which we had about 900 respondents, to find out what the financial implications might be of removing general licences. The survey showed that there would be financial implications if people were not able to use general licences effectively. That suggests that restricting general licences will have implications for people. You cannot get away from that.

Ian Thomson

The problem is the time that it takes to impose restrictions. Also, as Ruth Tingay said, further allegations of wildlife crimes have been made at one of the five estates on which the sanction has already been imposed, which suggests to me that it is not a particularly effective penalty.

I understand and agree with some of what Ross Ewing said. The fact that a civil burden of proof is required is very important, given the challenges that I think we all acknowledge exist in investigating wildlife crime, particularly in getting sufficient admissible evidence to undertake a criminal prosecution. However, I do not believe that, thus far, even the threat of a general license restriction is stopping wildlife crime, and the statistics, such as they are, support that view.

Stewart Stevenson

Fixed-penalty notices or, more to the point, the power to introduce regulations to create fixed-penalty notices, is right at the top of the bill in section 2, so it is obviously quite an important part of it. That will deal with the opposite end of the scale—it will introduce a way of penalising offenders for minor issues. Are we satisfied that the penalties would be used appropriately? The regulations, which we do not currently have, will give us the details about fixed-notice penalties. However, as a matter of principle, are they a good way of discouraging people at the bottom end of the offending scale from establishing a career of offending?

Liz Ferrell

Scottish Environment LINK does not object to fixed-penalty notices. They have their place, but we would want clear guidance on their use, to set clear limits and to give assurance that they would not be used when the severity of the crime is such that prosecution would be the more appropriate action.

Karen Ramoo

SLE does not have any objection to fixed-penalty notices. We do not have much experience of them, so we do not fully understand how they would work, but in principle we consider that they would be a good approach to dealing with minor crimes.

Like Scottish Environment LINK, we consider that clear guidance on use of fixed-penalty notices would be really useful. Also—this is probably a minor point—fixed-penalty notices are used elsewhere in society, so it would be good to have better understanding of their use, including their effects in respect of repeat offending. A bit more work on that would be helpful.

Mark Ruskell

Impact statements have been mentioned. I was struck by the examples of badgers and freshwater pearl mussels. Are impact statements being used effectively? Do they need to be put on a legislative footing?

Eddie Palmer

Scottish Badgers has no experience of impact statements, but we consider that they would be useful. Badgers have semi-permanent homes. If its home is wrecked or damaged, a clan will tend to break up and disappear, and its sett will stop being a breeding sett. Such damage has an extremely important wider effect, but that has not yet been played out in court because of the lack of prosecutions.

Ian Thomson

In RSPB Scotland’s experience, when there have been prosecutions in which impact statements have been used, they have assisted the process. The Crown Office is probably better placed to answer the question directly, but the RSPB is certainly keen to see the conservation impact of such crimes being recognised in sentencing guidance for courts.

Karen Ramoo

Scottish Land & Estates fully supports the use of impact assessments. We would like to see them being used more systematically—for example, there could be more monitoring of how frequently they are used. We have no objections to their being considered in the bill, because the approach that they embody would be welcome.

Les George

If we are already using such statements, why go down the route of legislating for them? That seems to be a pointless exercise.

Liz Ferrell

Impact assessments are not used consistently. For example, a developer who pleaded guilty to six charges of destruction of bat roosts was given a total fine of just over £300. As I said earlier, the costs of doing a bat survey are way above that. However, in another case of bat crime—the case is not absolutely like for like—in which an impact statement was used, the perpetrator was fined £7,500, which is a significant difference.

In the Poustie review, sheriffs and procurators fiscal said that having impact statements available to them before sentencing was helpful for giving them background information on what Ian Thomson has just described as the “conservation impact” of such crimes—for example, what the killing of a pair of hen harriers will mean in the wider context.

Colin Smyth

Earlier, Les George touched on vicarious liability. I am keen to hear the panel’s views on how effectively the existing provisions on that are being used and whether they should be extended to cover other wildlife crimes.

Liz Ferrell

Scottish Environment LINK supports any measures that will help to tackle wildlife crime. We would like to see the concept of vicarious liability being extended to crimes against other species. However, there is variation on that among our members. We do not have an argument in favour of imposing vicarious liability for crimes against bats. Proving the link between a company and an activity is a lot easier in cases in which developers are being prosecuted for offences involving bats than it is in cases of raptor persecution. However, I know that the RSPB has had issues with such cases, so perhaps it might like to come in on that point.

The Convener

I will bring in Ruth Tingay first, and then we will hear from Ian Thomson of the RSPB.

Dr Tingay

There is a huge amount of frustration about how ineffective the principle of vicarious liability has been in raptor persecution cases. Since the legislation came into force, there have been only two successful prosecutions. There have been a number of other cases in which vicarious liability could have been applied but was not, and there has been an awful lot of secrecy about why that was so. For example, when I have asked the Crown Office or SNH for an explanation of a decision in a particular case, I have been told that it is not in the public interest to give one, which makes no sense to me at all.

Ian Thomson

The provisions on vicarious liability that were introduced at the beginning of 2012, as part of the Wildlife and Natural Environment (Scotland) Act 2011, and the discussion that took place in the lead-up to that had an immediate positive effect. Although, as I mentioned earlier, I am nervous about talking about trends in wildlife crime, there was a clear turn away from the use of illegal poisons, which everybody welcomed. It is difficult to disaggregate the impact of vicarious liability from the impact of increasing use of satellite transmitters on birds of prey, because satellite transmitters make poisoning much more detectable, but the fact that vicarious liability was introduced around about the same time led to a pretty significant deterrent effect.

However, that effect is now wearing off. As Dr Tingay said, there have been only a couple of vicarious liability prosecutions. The first challenge is that identifying who is potentially vicariously liable is very difficult, given the complexities of land ownership and the fact that identifying who owns land is difficult. Another big challenge is that prosecutions of gamekeepers, for example, are very rare, but the Crown Office seems to need a successful prosecution of a gamekeeper in order to then prosecute a landowner. The legislation does not say that that is a necessity, but that seems to be the case. The Crown Office can probably clarify that point later.

Ross Ewing

I agree with some of what Ian Thomson has said, particularly about the initial impact of vicarious liability. We argue that estates continue to feel the burden of vicarious liability and, as a result, they have very much sharpened up their act by ensuring that all the correct administrative procedures are in place. Vicarious liability has been a really strong deterrent against wildlife crime, which has led to a reduction in the number of poisoning offences, for example, as Ian Thomson pointed out. We feel that it has been very effective and that landowners are complying with the legislation. As we have heard, whether a gamekeeper or anyone else is committing wildlife crimes, it is the responsibility of the individual to take things forward. Through the vicarious liability legislation, we are ensuring that on estates, from top to bottom, there is a zero tolerance policy for wildlife crime. Our organisation has seen that on the ground.

Karen Ramoo

I very much echo what Ross Ewing has said. SLE feels that vicarious liability has played an important part in improving systems on estates. The Poustie report made the point that vicarious liability has made landowners more aware of their responsibilities, so it is very much playing a part in the bigger picture.

Stewart Stevenson

I want to come back to Ruth Tingay’s point about secrecy. Vicarious liability is about the owner or manager taking responsibility for what goes on by having and enforcing a system of oversight in order to prevent wildlife crime. In Ruth Tingay’s opinion, would many of the specific measures that a manager might put in place be compromised if they were disclosed? For example, there might be a scheme whereby cameras are installed at particular points of risk by the landowner in an attempt to detect activities, and it would not be in the interest of the owner—the enforcer of the scheme—or, indeed, of wildlife, if the details were to be disclosed. I am not inviting Dr Tingay to say that the whole scheme should be disclosed, but there is a proper place for secrecy in how owners and managers discharge their responsibilities in relation to vicarious liability.

Dr Tingay

It would be brilliant if landowners were installing cameras. That would save us a lot of trouble. I do not think that that is happening widely, but that is beside the point.

Stewart Stevenson

Forgive me but, as a layperson, I was seeking only to identify an example. I did not mean to give an exhaustive list of actions that might be taken.

10:30  



Dr Tingay

I get your point. I think that you are right in that some landowners will not want to reveal the measures they have taken, and why should they? They do not need to. However, I am talking about secrecy around the decision making.

There is a perfectly apt defence to a vicarious liability challenge. If the landowner can show that he or she has shown all due diligence, which is what the legislation requires, then all the Crown Office has to say, in a public statement, is: “We have investigated and we have found that the landowner has undertaken full due diligence.” We would accept that, but we do not even get that; we do not even know whether a case has been investigated at all. The shutters come down completely and we are not told anything at all.

Eddie Palmer

Some more guidance about vicarious liability would be useful. A couple of years ago, there was an situation where there was a clear line between an agent, a farmer and a forestry contractor. The forestry contractor totally wrecked a badger sett, a licence was never on site, and everyone was blaming everyone else for it. I do not know whether the police or the Crown Office decided that it was not worth going ahead, but the evidence appeared to be very clear in that case.

Les George

You need to be very careful about rolling vicarious liability out to other sections. We fear that it would have a detrimental effect on fox control. If farmers who have someone in killing foxes on their land thought they were in any way responsible for the person killing the foxes, they might stop fox control, which would be very bad for waders and ground-nesting birds. The farmer would probably not take the risk. They would just say, “We are going to stop that,” which would be really bad.

Ian Thomson

If it were limited to protected species—otter, pine marten and badger, for example—that would not be an issue. Foxes are a permissible species to kill anyway, but if vicarious liability provisions were extended to cover protection of those other species, that would not be an issue.

Les George

Presumably, you would want to do it for fox snaring. Snaring is an issue. If you are going to snare things, you will have bycatch. You release it, but it is a risk for the farmer.

Colin Smyth

Karen Ramoo mentioned the Poustie review, which is obviously the basis of much of what is in the bill about penalties for wildlife crime. Are there other review recommendations that could be addressed in the bill?

Ross Ewing

I seem to recall that firearm and shotgun restrictions were mentioned. At the moment, under legislation governed by Westminster, firearm and shotgun certificates can be restricted if there is a threat to public safety. If we were to bring in legislation whereby someone’s shotgun or firearm certificate could be revoked if they were known to have committed incidents of wildlife crime—that would be something on which we would need to work with colleagues down south—it would be a very prudent deterrent indeed. As has been mentioned, it is very difficult for anyone who has committed wildlife crime to get a job, especially if they work in conservation, as gamekeepers do, but adding that additional measure—actually revoking a shotgun or firearm certificate—would probably be very sensible. In my mind, if someone is committing wildlife crime, it is very bad, and I would argue that it could be a threat to public safety at some point.

Les George

To be fair, that is already happening. As soon as a case is brought, the police take the firearms away from whoever is in the loop, so it is already happening.

The Convener

Is the person denied a shotgun licence in the future?

Les George

They are not denied a licence in the future, but they are denied one until they are proven innocent.

Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

Poustie also recommended intervention programmes and empathy training. I know that there is currently no resource for those, but should they be part of community payback orders?

Karen Ramoo

I was going to pick up on that. I would personally be very supportive of that. We believe that custodial sentences could also involve retraining or empathy courses. When you get a speeding penalty, for example, you go on an awareness course. It is about that whole thing of teaching and educating people about their wrongdoing, and trying to right that.

One of the other recommendations from the Poustie report was about a more systematic approach to the use of impact assessments. In addition, it said that there would be merit in developing sentencing guidelines in order to enhance the consistency and transparency of wildlife crime sentencing. We would push for those things as well.

Finlay Carson

We have heard about increasing penalties, which most people seem to be in support of. However, there is very little point in increasing penalties if we do not increase the number of people who are convicted. It would be a bit like increasing the fine for speeding in a rural area, but with one policeman covering 100 square miles, so nobody would be likely to be caught.

I want to look at the scope for expanding investigations and enforcement. One possibility might be an increase in the statutory time limits on evidence gathering. Although that proposal has been broadly welcomed, we do not know whether there is any evidence of cases that have failed because of the time limits on gathering evidence. Therefore, I would like to hear the panel’s opinion on changing the statutory time limits on investigations into wildlife crime.

Ian Thomson

If a suspect is going to be identified in a raptor persecution investigation, it is normally within the first two to three weeks. By and large, raptor persecution happens in places where potential suspects are likely to be known; that is, there is a narrow group of people who are likely to be responsible. Unless a sufficiency of evidence is found very early on in the investigation, a case will not proceed, regardless of whatever public appeals for information there are. It is very much down to the police and the Crown Office how much administrative time they require in order to proceed a case, but I do not think that changing statutory time limits would have any impact on the practical, on-the-ground investigation.

Eddie Palmer

Investigations into incidents that might be deemed crimes can run on for a long time—it is not unusual for it to be nine or 12 months before hearing about anything. I know the trouble that police officers can have in getting people in for interview, in terms of making the arrangements, dealing with their own leave and things like that. Ian Thomson might well be right, although I cannot prove that, but the suggestion is something to be wary about. I think that, at times, there are resource problems.

Ross Ewing

I will touch on issues such as hare coursing, which I spoke about already. It is inherently difficult to catch the individuals that undertake such activity. Generally, we find that they tend to be repeat offenders, so allowing a little bit more time in order to get a multitude of offences could be advantageous in those scenarios. With reference to hare coursing, it could be a positive step.

Karen Ramoo

We are unaware of instances where a time limit impacted on prosecution. It is about separating out whether the time limit is causing problems in relation to taking a case forward, evidence collecting and getting that to prosecution level, or whether it is more of a police resource issue. It is important to separate those two things out. If it is a resourcing issue, that should be dealt with elsewhere.

Finlay Carson

Thanks. I want to look at the potential impact of a five-year custodial penalty allowing some wildlife crimes to be treated as serious crimes, which would open the door to allow police officers to install covert cameras. Generally, that would still be done on a case-by-case basis. What is the panel’s general feeling about the installation of covert cameras? Might that have a positive impact on the way that the police can identify criminals?

Karen Ramoo

We fully support enabling the police to use and manage surveillance cameras, although of course that should be strictly under the procedures in the Regulation of Investigatory Powers (Scotland) Act 2000. Where there is an indication that wildlife crime might be happening, there is a strong case for using cameras. They could act as a real deterrent and, we hope, lead to more prosecutions if wildlife crime is taking place.

The Convener

Liz.

Les George

I—

The Convener

I said “Liz”, but I will go for Les and then I will take Liz. On you go.

Les George

Sorry.

I do not have a problem with the police using covert cameras, but that needs to be handled sensitively. I have some personal issues with cameras, because I have had them pointed at my house. That was reported to the police, who had nothing to do with it; it was other individuals. My wife and child were filmed. Will it encourage vigilante camera users if people think that it is okay to do that? It is perfectly fine if the police are using cameras, but it will encourage others to do illegal camera work.

Liz Ferrell

Scottish Environment LINK does not have an informed opinion on the issue. However, anything that helps to increase the number of prosecutions is welcome.

Finlay Carson

On Les George’s point, at the moment, the police have to meet an information threshold before they consider the installation of video surveillance equipment. If that threshold is reduced and the police are more inclined to install cameras, might that reduce the need for vigilante groups, as Les George put it, to install cameras?

Les George

I do not think that it will help in that way. It will encourage people to go out on their own to film other people, when they should not be doing that.

Ross Ewing

Like everyone who has spoken on the issue so far, BASC is supportive of the measure. However, I echo the sentiments that have been expressed about privacy issues. The use of cameras is contentious. I am not entirely convinced that some of the camera work that has been done to date by non-statutory bodies has been particularly sensitive. There is a fundamental requirement for the process to be sensitive and carried out with much due diligence in order to make it workable. However, we see a small number of wildlife offences referred to the procurator fiscal, and it would be good to see more. The proposals will absolutely help with that.

Ian Thomson

RSPB Scotland has on occasion deployed cameras in the countryside focused on things such as traps or nest sites. Some of the video footage that we have captured has been deemed inadmissible in prosecutions, and on other occasions it has been deemed admissible. In a case back in 2013, I think, the Crown Office decided that it could not rely on the evidence that we had captured, which was of an individual allegedly shooting a hen harrier off a nest, as part of a prosecution. The explanation of that is very much for the Crown Office, but one has to ask whether a camera pointing at a hen harrier’s nest site—it is a schedule 1 species, so nobody should be going anywhere near the nest without a licence—is surveillance or monitoring a nest.

We have to be careful about the issue. Is it being suggested that the police will put cameras at nest sites just to monitor a pair of birds on the off chance that somebody might come along and do something bad? Given that there are 460 pairs of hen harriers in Scotland, I doubt that the police have the resources to do that. Therefore, there is absolutely a place for cameras to be deployed by other agencies as long as they are not imposing on people’s right to privacy under article 8 of the European convention on human rights. The situation that Les George outlined is completely unacceptable. It is absolutely crossing a line if people’s dwellings and family are being filmed. However, putting a camera at a nest is an entirely different proposition.

Rachael Hamilton

Are there any further issues that need to be addressed in combination with the maximum penalties—for example, resourcing enforcement or raising awareness of those increased penalties—in order for the bill to achieve its purpose of deterring wildlife crimes?

10:45  



Liz Ferrell

Scottish Environment LINK members would be happy to sit around the table and be part of that awareness raising. I think that we all have a duty to do that. Certainly, the Bat Conservation Trust, the RSPB, Scottish Badgers and others would be happy to get the word out.

In previous submissions, we have said that there needs to be more resourcing for the police. If we are going to do this properly, the implementation is important. We can change the law and increase boundaries, but enforcement has to be factored in, too.

Mark Ruskell

I would like to ask the witnesses for their views on the powers of the SSPCA. It has powers in relation to domestic animals, but it does not have powers in relation to wildlife.

Do the witnesses have any reflections on the special constables pilot scheme that has been running in the Cairngorms to try to tackle wildlife crime? Has that been an effective way forward, or would the SSPCA having powers in relation to domestic animals be a useful addition to the powers that the police already have?

The Convener

That is the last question from a member, so this is the last chance that people have to speak before we wind up.

Dr Tingay

The special constables project in the Cairngorms has been a complete disaster. We are still waiting for a formal report, but we know from a parliamentary question—which was asked by Mark Ruskell—that no wildlife crimes were reported by those special constables during the period in which the project was running, even though we know that wildlife crimes took place in the park during that time. I am not quite sure how the effectiveness of the project will be measured by the Scottish Government. However, in terms of reporting crimes, there is nothing to report.

Eddie Palmer

On the powers of the SSPCA, it is the organisation that is managing to get some badger baiters into court, because of its concentration on dog fighting. Scottish Badgers sits between the police, who do what they do, and the SSPCA, which does a lot of work on the ground. I know that the police co-operate with the SSPCA with regard to the SSPCA having to enter houses, for example. However, the data and the statistics on that are mixed and confused, and we get caught in the middle at times. The situation at the moment is unsatisfactory.

Les George

There is no need to give the SSPCA more powers. In relation to the case that is being brought in Angus at the moment, the present arrangements worked perfectly fine. If you are going to do these things, you need to resource the police. The police are impartial, but the other groups are not—they have their own agendas. The police should handle these things, not the other organisations.

Ian Thomson

At the moment, the SSPCA, as a specialist reporting agency, has the ability to report crimes under the Wildlife and Countryside (Scotland) Act 1981, but it may enter land only under the terms of the Animal Health and Welfare (Scotland) Act 1987—in other words, it may do so only if an animal is actively suffering. Our interpretation of that is that, if, for example, the SSPCA receives a report of a bird having been caught in an illegal pole trap, it can go and seize that trap and that bird, but it is not allowed to check for other identical illegal pole traps or dead animals caught in those traps in the same area.

A few years ago, a common gull was caught in an illegal trap that had been set on a grouse moor in Aberdeenshire. There was a line of 10 similar traps across the hillside, but the suspect was able to remove them before the police could come to visit. If the SSPCA had the powers to search, it could have recovered further evidence. We feel that it is important that the idea is at least explored.

The Convener

We have run out of time but, because I am a nice person, I am going to let my deputy convener come in with one very short question.

Finlay Carson

It involves what we are talking about. It seems that the SSPCA already has powers in respect of animal welfare, and there is a question about why it should not have equivalent powers in respect of wildlife. We have heard concerns about the accountability of organisations other than the police. Does anyone have concerns about the governance or the accountability of organisations such as the SSPCA when it comes to additional powers to enforce the law and gather evidence under the new legislation?

Dr Tingay

I have no concerns about that at all. The SSPCA is an official reporting agency and it does a brilliant job in relation to domestic animals. Why would it not do the same in relation to wildlife?

The Convener

On that note, we will suspend briefly to allow for a change of witnesses.

10:50 Meeting suspended.  



10:57 On resuming—  



The Convener

Our second round table on the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill at stage 1 will focus on enforcement and prosecution. I am delighted to welcome: Mike Flynn, chief superintendent, Scottish SPCA; Detective Chief Superintendent Gary Cunningham, specialist crime division, Police Scotland; Constable Charlie Everitt, Scottish investigative support officer, UK National Wildlife Crime Unit; Robbie Kernahan, head of wildlife management, Scottish Natural Heritage; Joanne Fairman, head of regulatory affairs, Animal and Plant Health Agency; and Sara Shaw, head of wildlife and environmental crime unit, Crown Office and Procurator Fiscal Service.

Good morning to you all. A number of you were in the public gallery when the first panel was giving evidence and will have heard me ask the witnesses about the evidence base for the proposed increases to penalties and trends in animal welfare offences. Of course, we must talk about historical offences rather than on-going cases, for reasons that you all understand. Who wants to kick off by talking about trends in offences and the need for increased penalties?

Mike Flynn (Scottish SPCA)

I can give a couple of recent examples. Sentencing guidelines recommend that sentences of less than 12 months should not be given. Two sheriffs who jailed people for nine months and 10 months respectively, commented that their powers are not enough and that the offences were serious enough to justify such measures.

The Convener

Do you think that there is a desire for flexibility on the part of sheriffs?

Mike Flynn

I think that sheriffs would welcome it. You must remember that, even if the maximum sentence is five years, it is entirely up to the sheriff whether to impose a sentence of six weeks, two and a half years or whatever. A lot of the people who we deal with do not see a six-month prison sentence as a deterrent. In the dog-fighting and puppy-farming arenas, we come across a lot of people who have been jailed many, many times for other offences; jail is an occupational hazard for them. For someone who does six months in jail for puppy farming and then comes out and still has the £20,000 that they made in one month, a six-month sentence is not a big deterrent.

11:00  



Stewart Stevenson

Is there not also an issue for the Crown Office, in that longer sentences can be imposed only if a case is raised as a solemn case rather than a summary case? It is not just that sheriffs do not have enough powers; there is also the need for the prosecutor to bring forward solemn cases, so that the case can ultimately result in a long sentence.

Sara Shaw (Crown Office and Procurator Fiscal Service)

Each case is considered on its own facts and circumstances and an assessment is made of the appropriate forum for prosecution. You are right to say that there needs to be a solemn prosecution if we want to open up the maximum penalty to the court. However, although the bill introduces that potential, we will still consider each case and raise proceedings in the appropriate forum, according to the particular circumstances of the case.

The Convener

We have talked about organised crime. Some offences are part of a much bigger enterprise, and the individual who goes to jail might have a larger organisation behind them.

Mike Flynn

That is certainly the case. There are lots of documented cases of that, especially in the dog fighting and puppy trade industries.

Robbie Kernahan (Scottish Natural Heritage)

It can only be a good thing to take the opportunity to improve consistency in relation to wildlife and welfare offences. The clear rationale for the bill is the need to increase penalties for the most serious crimes, so the introduction of flexibility and the option for each case to have a tailored solution makes perfect sense.

Joanne Fairman (Animal and Plant Health Agency)

I second that. We are the regulator for a lot of the welfare issues, because the enforcement is done by our enforcement partners. The committee must remember that we get to a prosecution and sentencing after all other interventions have been put in place. We build up to a prosecution; it is not the endgame. If we reach the point at which we think that prosecution is required, we need the court to have the ability to impose a bigger sentence, because we are talking about people who genuinely need a stiff sentence to make them get out of the business or change their behaviour.

We have shown that the system that we have has not changed behaviours over the past five or 10 years, so we need to do something different to deter people who will not otherwise abide by the law.

The Convener

The other part of my question was about trends in animal welfare crime. Has there been an increase in such crimes over the piece?

Detective Chief Superintendent Gary Cunningham (Police Scotland)

That is a difficult question to answer. The statistics show that, last year, there was a 30.9 per cent decrease in wildlife crime, with a 6 or 7 per cent decrease in detection rates. However, we are not sighted enough on the volume of crime out there; the statistics show only what we come across or detect. Sometimes when a raptor disappears we cannot prove that there has been a crime—we might suspect criminality, but we are not in a position to prove, to Scottish crime recording standards, that a crime has taken place.

Therefore, when you are looking at the volume of crime, you should not make decisions on the basis of comparing percentages and trends over the years. We need to fully understand the problem that we have with wildlife crime across the board. That understanding will come through better intelligence, better partnership working and better assessment of our response to incidents. Only then will we get a flavour of where the issues lie. If we look across the board, we see that raptor crime is the main issue that we face just now.

The Convener

Volume is not the most important thing. One instance is enough.

Detective Chief Superintendent Cunningham

Exactly.

Rachael Hamilton

The Law Society of Scotland made the point that there needs to be a

“rationale justifying the differentiation in the varying penalties.”

Will the panel comment on how the penalties for the different levels of crime could be made clearer?

Mike Flynn

Sheriffs take into account the severity of the crime and the impact that it has on the animals or the people involved. The fiscal certainly takes that into account when marking up the case. It is then down to the evidence that is presented to the court and it is up to the sheriff.

Where it has fallen down, which is more on the financial side, is in the puppy trade. An accused who was found guilty was fined £2,600 for his involvement in the puppy trade and £500 for selling the puppies in a public place. He openly said in court that he had made more than £1.2 million in a year and a half, so where is the deterrent in those fines? His motive was profit; he had no interest whatsoever in animal welfare. That kind of thing also needs to be taken into account. Given the right evidence, the fiscal service does a fantastic job in presenting it to the courts. The profit issue is why it deserves a higher penalty.

Overall, the number of cases that we report to the fiscal is dropping year on year, because we do more intervention and we do it sooner. The majority of cases are about ignorance and neglect, but far more intentional cruelty is coming to light. Recently, there have been more badger incidents because, as soon as we start getting involved with those people, we become aware of their cohort and colleagues, and we also get evidence on them. We see some really serious cases. The Mark Cuthbert case—he got 10 months in jail—was one of the most barbaric that I have ever come across. He fraudulently got cats that were offered by people as free to a good home and fed them to his dogs. That is the kind of depravity that we are dealing with these days.

Constable Charlie Everitt (National Wildlife Crime Unit)

The Crown Office will be able to exercise discretion with regard to, say, the killing of a wild bird, whether it be, at different ends of the scale, a blue tit or a golden eagle. In addition, impact statements highlight the conservation concerns about the respective victim species, and that will help to differentiate the severity that must apply.

Joanne Fairman

In our evidence, there are cases of people who are out to make money regardless of the welfare of the animals—whether that is fighting dogs or imported puppies—and they are intentionally in it for the profit.

The other side that we see is on-farm welfare. Those cases are different, because, more often than not, the people who get themselves into problems with on-farm welfare have seen a decline in their health or finances, found themselves in that position without setting out to be in it and, all of a sudden, cannot see a way out of it. They get entrenched. Those cases are more difficult because, although they can be serious and the animals can be harmed, there has been no intent. It is about whether the people make the right interventions to get themselves out of that position when they are suggested to them. The distinction is in the intent.

The Convener

Those might be situations in which a person is not coping.

Joanne Fairman

Yes.

Stewart Stevenson

I want to go back briefly to DCS Cunningham with an operational question.

Are you getting enough intelligence to populate your general intelligence resources from all the many agencies and charities that are involved in this particular area? If not, is there anything that could reasonably be done, apart from saying that your doors are open to getting more intelligence?

Detective Chief Superintendent Cunningham

That is a good question and a great point. I do not believe that we have an intelligence-sharing protocol in place between all the different agencies and partners that are involved in wildlife crime. Police Scotland has a large database, as do some other agencies, but we are not at the right level with sharing information. The intelligence picture could be greatly enhanced to allow us to focus on where the issues are in Scotland, and to build cases and focus interventions, initiatives or operations on those areas.

Do not get me wrong—the partnerships are strong and we are continuing to build them. Everyone has a clear focus on the ultimate goal, which is to prevent wildlife crime and catch those who are responsible, but I think that there are opportunities for better sharing of information and intelligence. That will allow us to better assess the risk and target the problem.

Stewart Stevenson

Economic criminals such as puppy farmers are likely to be involved in more general criminal behaviour, so wildlife or welfare intelligence that comes to you might have pay-offs in other parts of the criminal justice system.

Detective Chief Superintendent Cunningham

Yes—in relation to serious and organised crime.

The Convener

How can we get better information sharing? Do we need an information technology solution or is it a question of providing more resources?

Detective Chief Superintendent Cunningham

It is a case of continuing partnership working and having conversations about where we can get information that might assist with joint operations. Such work is on-going, but I do not have a specific solution. We need to have conversations about how we can address the issue. We could maybe set up a short-life working group to assess the best way forward. If we had intelligence on a particular individual or a particular crime, we could have meetings with the partners to discuss that intelligence. I think that information-sharing protocols are in place with Scottish Natural Heritage. We need to consider how we can build on those and extend that to the other partners.

Finlay Carson

I want to follow up on that and on what Mike Flynn said about puppy farming. Does the bill need to be amended to further address the drivers of animal welfare offences so that it covers, for example, the proceeds of crime, the ability to impose sentences that include education for offenders and the prevention of offending in the first place? Could more be done through the bill to address the drivers of animal cruelty?

Mike Flynn

I am not sure whether I am giving the right answer but, to go back to Mr Stevenson’s point, when it comes to puppy farming, the police have been fantastic in using the serious and organised crime squad to pursue the proceeds of crime with some of the individuals we have dealt with. The interventions units have been extremely helpful, too. On the domestic side, there is great link-up at a local level.

Detective Chief Superintendent Cunningham

We also have a disruptions unit that is set up to work closely with the partners.

Finlay Carson

So there is nothing that we ought to include in the bill that would increase our ability to address the drivers of animal welfare offences. You are quite content with the bill in that respect.

Detective Chief Superintendent Cunningham

Yes.

Finlay Carson

I want to ask about the effectiveness of other types of penalty that are used at the moment. It has been suggested that we need more flexibility. We have heard in evidence that the use of disqualification orders is a bit random and that they could be used more systematically, and we know that there are disqualification orders and dog control orders that have not worked particularly well. Is there a need for a register of disqualification orders and other information about people who have been convicted of wildlife offences to support enforcement?

The Convener

Joanne Fairman is nodding.

Joanne Fairman

I would say that there is a need for that.

To go back to the question about intelligence, we have all begun to dip our toes in work in that area. We have intelligence—we have Food Standards Scotland and we are working at Gartcosh—but the intelligence that we have is only as good as the information that is provided. There is no magic bullet, but the issue comes down to resources. We are all given funding to do the job that we are asked to do, and it is sometimes difficult for the staff to take their blinkers off and look at the wider picture. The potential exists to look more strategically at threats that go across departments. That might make it easier to share the information.

On disqualification, an issue that has come up recently in our area is the ability to know who has received a disqualification order. We get such information from some of the local authorities and from the SSPCA, but it would be useful to have it in one place. Having such a source of intelligence would be a good starting point.

The difficulty that we had previously with disqualification orders is that although we might have disqualified one individual, they would simply pass on the animals to a family member—in other words, we did not solve the problem. There needs to be greater consistency and the disqualification process should be strengthened to stop the activity continuing under a different name.

Mike Flynn

Disqualification orders are regularly breached. On the domestic animals side, every year we will get a warning from the Royal Society for the Prevention of Cruelty to Animals to tell us that somebody who is banned in, say, Manchester has moved up our way, and vice versa.

There is no enforcement or follow up. Someone is banned for five or 10 years and nobody checks on it. There is no central register—the information will be somewhere in the depths of the police national computer system. Although a police constable going to someone’s door for whatever reason will know that they have got a warrant out for them and are potentially violent, they will not know that that person is banned from keeping dogs. You could walk into the house and there would be five dogs there, but nobody would know about it.

We have spoken for a long time about getting a register that authorised agencies can access without any risk to individuals.

11:15  



The Convener

It would also be helpful for the public. If you are going somewhere to purchase a pet, for example, and you know that there is a register, you can check the register.

Mike Flynn

The previous time that this was talked about the discussion was about whether the register should be open or just for enforcement agencies. If it was open, you could get vigilantes trying to find out who is banned and causing trouble.

The Convener

One of our witnesses at last week’s meeting talked about articles in newspapers. They were asking for a publicly available register, but you are saying that that might have unintended consequences.

Mike Flynn

For that aspect, yes, but I am going back seven or eight years, when a local authority gave a pet shop licence to a person who had not declared that they had been banned. If you are banned from keeping animals, you will not get a pet shop licence. This person did not declare it and there was no record of it, so the local authority, through no fault of its own, issued a pet shop licence.

Stewart Stevenson

We will come to fixed penalty notices later, but I just wanted to ask at this point whether it would be appropriate to ensure that fixed penalty notices were part of the register system, so that the existence of a pattern of low-level behaviour was clear at the appropriate point. That may be a question that answers itself.

Mike Flynn

That is a very good point. Fixed penalty notices should never apply when an animal has suffered; they should apply to technical offences, of which there are thousands. The question is, if a local authority APHA wanted to go to prosecution, would the procurator fiscal take it? Let us take, for example, a livestock haulier not cleaning his wagon out between loads. If you put that to the procurator fiscal, and no animal has suffered, the chances are that it would be an ideal case for a fixed penalty notice. We have consistently said that people should not get a fixed penalty notice for the same thing every week.

Stewart Stevenson

We will come back to FPNs. I am just on the narrow issue of whether they should be put on a register.

Mike Flynn

Yes.

Mark Ruskell

The panel has already started to explore the links between violent crime and animal welfare offences. Could other approaches to prevention and enforcement be pursued here? The committee heard last week that in some countries, incidents of suspected animal abuse can be reported to social workers. How is this area evolving?

Mike Flynn

The Links Group was set up to involve all partners. Going back to the police point of view, it is about information sharing under proper protocols. It is even linked in to dentists spotting domestic violence and so on. Who should they report that to? Should it be reported to the police? It is more about information sharing where appropriate.

Mark Ruskell

Are there concerns about information sharing between different agencies?

Detective Chief Superintendent Cunningham

No, not if it comes down to child welfare or adult protection. I think that we are confident about that information being shared automatically. We have to have that mindset when we are dealing with wildlife crime. What is the individual’s mental state if they are capable of carrying out these acts? Should we consider a wider piece of work with health professionals? Should we get proper assessments done and look at the wider family dynamic? All that is very important.

Robbie Kernahan

In relation to wildlife crime, Scottish Natural Heritage and Police Scotland have a very good relationship when it comes to sharing all our relevant information and intelligence. Whether it is on impacts, populations or specific individuals, our information sharing is fairly well developed. In the partnership against wildlife crime, there are groups set up to look at specific topics. However, because of the on-going polarised debate about land use, and specifically raptor persecution, and because of the lack of trust, some of the intelligence sharing and media protocols do not work as well as they should.

Mark Ruskell

How might the bill impact on the Crown Office and Procurator Fiscal Service’s decision making?

Sara Shaw

Do you mean the extended time period for investigating and reporting offences?

Mark Ruskell

How do you see all the provisions in the bill impacting on your decision making?

Sara Shaw

The Crown Office and Procurator Fiscal Service will continue to consider all reports of cases that have been received. It will consider whether a crime has been committed, whether there is sufficient admissible evidence of that crime, whether there is evidence of the perpetrator, and whether proceedings are in the public interest. We will continue to take decisions on the same basis that we currently do. Obviously, factors can affect how wildlife crime is dealt with, such as the detection of where the crime took place. There can sometimes be delays, and there can be complexities in pursuing forensic evidence and examining items when the crime has come to light. If there is a delay in detecting a crime or the evidence is complex, the extended time period within which a prosecution can be brought will be useful.

Mark Ruskell

Does the increase in sentencing options affect the public interest test on whether to pursue a case?

Sara Shaw

The penalties do not directly affect the public interest test. The option of opening up the potential to prosecute at either the summary level or the solemn level allows the Crown to take full account of all the facts and circumstances of a case, to take account of the seriousness of the offending and the circumstances of the alleged offender, and to be able to ensure that the forum in which a prosecution is brought reflects the seriousness of the offending. Obviously, in considering the forum, we will have an eye to the potential outcome. If prosecution at the solemn level was appropriate, those maximum penalties would be opened up as an option for the court for more serious offending.

Mark Ruskell

Does the increase in maximum penalties require new sentencing guidelines?

Sara Shaw

It would not be appropriate for me to comment on sentencing. I am aware that the Scottish Sentencing Council has considered guidelines for wildlife and environmental offences, and I understand that those are still in progress.

Mark Ruskell

Are there any other views on that? Earlier, we had a discussion about impact statements, the severity of crimes and the wider impacts. Is the reconsideration of sentencing guidelines required?

Mike Flynn

Recommendations are included in veterinary reports that would be displayed to the courts anyway in light of the severity of the impact on the animal. With puppy farming, I am sure that the police evaluate whether to go for the proceeds of crime that have been made from the activity.

Rachael Hamilton

How common is it to be able to use intelligence to link organised crime and puppy farming, or domestic abuse and animal cruelty, for example?

Detective Chief Superintendent Cunningham

It is simply a case of ensuring that sufficient intelligence is brought into our systems to make an assessment. Making the link between puppy farming and organised crime is really quite simple. It depends on the individuals who are considered and researched, the financial gain, the set-ups, and on linking into other police forces that will share their intelligence. That is quite easily done. We can then draw pictures of individuals, their motives, and how they behave towards other people. That could bring in domestic violence.

I do not know whether that answers your question.

Rachael Hamilton

It does. That links into the severity of the penalty, which we talked about earlier. I just wonder how often that comes into play. Obviously, it will depend on the intelligence that you have available.

Mike Flynn

It is very common for there to be a link, not in relation to wildlife offences but in relation to domestic animals or badger baiting. We always rely on help from Police Scotland if we are dealing with a known dangerous person. We approach Police Scotland for assistance on the day and, as soon as the police know who the target person is, we find out whether they have been a client of the police in the past. It all goes from there.

Robbie Kernahan

I want to make a principled point relating to Mark Ruskell’s question about sentencing guidelines. Increased maximum penalties will, I hope, inevitably help in relation to compliance, deterrence, risks and consequences. Fundamentally, quite a lot of people struggle with the lack of transparency in sentencing. Last week and this morning, we have heard about the lack of transparency, so it can only be a good thing to have sentencing guidance that people can better understand.

Mark Ruskell

Is there any inconsistency?

Robbie Kernahan

From reading the committee’s papers and from the evidence that we have heard today, we know about the lack of consistency for offences that might be relatively comparable in terms of the impacts that they have. I think that guidance would help.

Joanne Fairman

We had a similar problem in England. Every year, we publish a report that shows what action local authorities have taken in relation to offences under animal health and welfare legislation. The reports include information on the individuals and the sentences that they received. For a period of time, we decided that we would slim down the reports and include only the number of offences. However, we had a call to put the other information back in, because the reports were one of the source documents that the judiciary used to compare the offences and the sentences that were given. The offences that we are talking about are not that frequent compared with other cases that are seen within the judicial system day to day, so it was very difficult for the judiciary to think about where to get the information. People would say, “I’ve got this before me, but I’ve never done one of these before. What shall I do?” In England, the reports have proved to be a good source document to go to for reference.

Finlay Carson

I want to be sure that the bill will do all the things that we want it to do. We have heard of people who carry out illegal razor clam fishing being prosecuted. They do not get prosecuted for carrying out the illegal activity, because that is too difficult to prove; they get prosecuted for tax evasion or for breaching health and safety. That might also be the case for puppy farming. We do not always address the issue directly. It is like Al Capone going to prison for tax evasion rather than for gun crime or whatever. Are the witnesses confident that the bill includes everything that is needed to address the real issues that we face?

Detective Chief Superintendent Cunningham

Yes, absolutely. It comes down to the investigative standard and approach. The crimes that we are talking about will always be difficult to solve, and it will be difficult to prove that a particular individual is responsible. That comes back to how we shape our investigations to ensure that a professional approach is applied across the whole nation. Police Scotland, with the different partners that have been mentioned, does that. The bill is fit for purpose in that respect. It is just a case of there being difficult investigations at times. We should not just take things from day 1 of an investigation; as you said, we need to look at all the different options in order to disrupt the individuals who are responsible. If we get them for a minor offence but cannot prove that they were involved in the wider or larger offence, we will go after them for the minor offence. As far as I am aware, the bill is fit for purpose.

The Convener

I have questions about rehoming without a court order. I have spoken to Mike Flynn about the issue in relation to a particular incident in my constituency. The bill proposes that a court order will not be needed in order to rehome or sell on animals. What impact will that have on the welfare of animals and on organisations such as local authorities, Police Scotland and the SSPCA?

Mike Flynn

The SSPCA believes that the bill would be a groundbreaking piece of legislation. You have mentioned two aspects. The welfare of animals is totally compromised if they are kept waiting in kennels for up to 23 months. Currently, if a person does not voluntarily relinquish an animal, it must be kept until the determination of the court case.

We do not hold on to animals if a report is not going to the fiscal; we hold on to them only when a case is pending. The worst case that we have had in recent years was the one lasting 23 months, which I mentioned. In that case, 57 dogs were held for 21 months. If that had been a police case and they had asked us to look after the animals, on commercial terms, that would have cost the police £440,000. It is £15 per dog per kennel per day.

11:30  



It is about the welfare of the animals. We have the best kennels and staff imaginable, but the kennels are no place for a dog to be brought up. In the case in your constituency, convener, some of the dogs that we seized were pregnant bitches and they actually gave birth in our kennels. Those dogs were more than a year old before they saw the light of day, so to speak. We built new sensory gardens and other such things to try to stimulate them and give them some of the experiences that they should have had. However, if a one-year-old dog has only ever known kennels, that is not good for its welfare.

The Convener

You have touched on the costs to the SSPCA of keeping animals for such periods. The proposals in the bill will release a lot of money for you to do the other work that you are supposed to be doing.

Mike Flynn

I have two important points on that. We estimate that, in just under two years, it has cost us £1.5 million to care for animals that have been involved in court cases. I mentioned two big cases. In August 2018, if you had gone to our Glasgow dog and cat home, which has 160 kennels, you would have found that we had two dogs for rehoming and that every other kennel had a dog in it waiting for a case to go to court. That was just because of the backlog and the court system.

Constable Everitt

To back up Mike Flynn’s point, one of the difficulties in seizing dogs from hare coursers is the cost of keeping those dogs. As Mike Flynn said, we support anything that alleviates those costs.

The Convener

My next question is perhaps more for Joanne Fairman. It is about the balance between safeguarding animal welfare and the rights and interests of the owners of animals. Do you want to talk about that, Joanne? There might be an issue where someone has got into a situation and has found that their animal has been seized.

Joanne Fairman

As Mike Flynn said, homing dogs and keeping them in kennels is difficult, but we are regularly faced with herds of 80 head of cattle that we can see deteriorating. Our vets go out time and again, perhaps to put down animals that are dying. Our vets are sort of powerless. They try to work with the owner to sell some of the animals so that he can recoup some money before they become worthless. It is about the welfare of the animals, but it is also about the welfare of the vets because, clearly, that situation places an emotional strain on them. They know that local authorities are not necessarily resourced to take in and look after animals. The animals will need handling every day—they will need feeding and watering. It is difficult to find somewhere to put the animals, especially because we have to comply with disease control measures before we move them anywhere.

There is a balance, but we sometimes get to the point at which, despite all the best persuasion and cajoling, we have to seize the animals. We give care notices that explicitly tell people what they need to do. We engage with neighbours and farming networks to try to help people before we get to that point. However, the point comes when we can see that nothing else will happen and we have to seize the animals. At that point, the decision is made that the animals’ rights have to come before the rights of somebody who thinks that they can farm and do what they like regardless of the need to look after their animals.

The Convener

Is the three-week appeal period appropriate?

Joanne Fairman

It is too long, because of the need for care and the cost to the local authority. That deters the local authorities. For example, we had a case involving 80 animals in which the appeal was protracted—it did not even happen in three weeks. The cost to the local authority as a result was phenomenal. In that sort of situation, the local authority does not get that money back because, by that point, there is usually no money.

The Convener

You are saying that the period now is too long, so the three-week period is appropriate.

Joanne Fairman

Sorry—yes, it is.

Once a local authority experiences such difficulties, it will be reluctant to take on any more cases.

It becomes a catch-22 situation: we will sometimes take someone to court and be asked, “If it was that bad, why did you not seize the animals?” We are forced to say, “It was bad but we could not seize the animals” because it came down to the monetary factor, which is a real pity.

The Convener

Or that it came down to capacity.

Joanne Fairman

Yes.

The Convener

Does anyone else have thoughts on that? Are you confident that all the processes that you will need for any sales, rehoming or, sadly, euthanising of animals as a result of this new power to seize animals without a court order are in place?

Mike Flynn

From our point of view, certainly.

Finlay Carson

We have discussed with other panels the difference between domestic animals and commercial working animals and companion animals. Are there potential difficulties when it comes, for example, to how the SSPCA deals with complaints from the public regarding a working dog or a domestic dog? There are different levels: if a member of the general public were to look at a sheepdog that has been out working on the hill, they might think that it looks like it needs a trim and it is a bit muddy and dirty, so how do you deal with that? It is probably okay, because it is a working dog, and it would be different for a domestic dog that is not used to being out in the wet and the cold. Are there potential problems when it comes to decisions that the police or the SSPCA have to make regarding the welfare of animals, working or otherwise?

Mike Flynn

Not really. From our side, on the example you gave, a perfectly healthy working border collie is a perfectly healthy working border collie. Our guys know what to look for. Any time we are looking at a more serious offence of causing unnecessary suffering, it is always certified by a veterinary surgeon that the animal has suffered. With a soggy, knackered-looking border collie that has been working all day, you will not get a certificate—“as fit as a butcher’s dog” will be the determination. Every case is an individual case.

Rachael Hamilton

I want to ask about the time that it takes for appeal. There is evidence to suggest that that, and the time for further appeal to the Court of Session, is too long. How could that be expedited, which would help the whole process? It is down to the time that cases take in the courts. Perhaps there could be prioritisation of some cases.

The Convener

Do you mean in relation to the three-week period?

Rachael Hamilton

Yes. If the time that it is taking to deal with an appeal and possible further appeal to the Court of Session is rolling over the three-week period, perhaps it should be recognised that there should be prioritisation of specific cases. Joanne Fairman gave the example of 80 cows and the suffering that was caused.

The Convener

I am not sure that I understand. At the moment, under the bill it would not be necessary to have a court order to rehome animals or sell them on.

Rachael Hamilton

We have gathered evidence about the time that it takes to appeal through the courts.

The Convener

Would anyone like to comment on that?

Mike Flynn

The court process is very underfunded. So many sheriff courts have been cut over the past couple of years that it is difficult to actually get into court. The Crown Office and Procurator Fiscal Service marks a case as being for proceedings, but then it is then over to the Scottish Courts and Tribunals Service to facilitate availability of a court. The accused person might then say that he cannot get legal representation or has just fired his lawyer. There is delay after delay, during which time animals are being kept at incredible cost to the local authority, the APHA or the SSPCA, with all the welfare issues that are involved.

The Convener

So, if that appeals process does not happen within three weeks, the welfare issues will be dealt with because you would be able to move the animals on.

Mike Flynn

That is why we welcome the proposal 100 per cent.

The Convener

We will move on to compensation. Stewart Stevenson has some questions about that.

Stewart Stevenson

First, if you will forgive me for doing so, I will ask a question on the back of what has just been said. On appeals, the bill lists

“The grounds on which an appeal to the court may be made”,

and there are only three grounds, which are

“that the decision ... (a) is based on an error of fact, (b) is wrong in law, (c) is unreasonable”.

The appeal has to be lodged within three weeks. Is the test of whether the decision “is unreasonable” reasonable?

Mike Flynn

We would be in a position to defend a decision because, as I said, we seize animals with the support of veterinary surgeons. If such a case were to go to appeal we would be able to provide the sheriff with our reasons for having seized the animals—for example, that a vet said that the animals had suffered or could not stay in the situation that they were in.

Stewart Stevenson

Let us look at the reasonableness aspect. There is only a three-week period for a person to appeal a decision, and there are only three grounds on which one can appeal. Does that mean that it is not very likely that many appeals will be successful?

Mike Flynn

That is my estimation. At the moment, more than half the people from whom we remove animals relinquish them voluntarily. Others are informed that our action could end up with a civil case against them being taken to court, but they do not care because that will not cost them anything. Many of the people whom we deal with want to stick two fingers up at the police in court anyway, so they are unlikely to comply with requirements. However, having to think, “Wait a minute—I’m going to have to take action here and pay for legal representation”, would put a lot of them off. There should be no appeal, and we would then kick into the three-week period after which the animals could be disposed of.

Stewart Stevenson

Right. I will now move on to the point that the convener wished me to pursue.

Compensation is covered at considerable length in the bill. Is what is there fit for purpose? My colleague Finlay Carson raised the difference between companion animals and animals that are owned for commercial purposes. Does the bill strike the right balance in determining the proper compensation that should be granted to the previous owner of an animal?

Mike Flynn

The SSPCA supports the proposals on that. We have been criticised for saying that we reckon that the compensation provisions are there just to comply with expectations on human rights. Anyone who removes an animal—whether it is us or anyone else—is seen as depriving a person of their property. It is not recognised that animals are sentient beings: it is just that someone is being deprived of something—their dog is just like their telly or whatever. In accordance with that way of thinking, if the person is found to be not guilty, they should be compensated for the value of their property.

However, it is important that the level of compensation reflects the value of the animal at the time when it was seized. For example, we or the APHA might seize a herd of cattle, each of which is worth £50, but might have to wait a year for the court case to begin. After that, if the cattle were still said to be worth only £50 each, we might ask what the farmer had done wrong, because they had not improved. The level of compensation should be based on the value at the time of seizure.

Stewart Stevenson

If there were welfare issues, I presume that the animals’ value would rise once they were moved into a regime in which they were being cared for and their welfare was being addressed.

Mike Flynn

Exactly.

Stewart Stevenson

Are you—or is anyone else in the room, for that matter—satisfied that calculating compensation will be done properly?

Mike Flynn

We have been involved in such cases in the past. In our experience, calculating the value of commercial livestock is not really a problem.

Stewart Stevenson

Sure.

Mike Flynn

We would go to a professional auctioneer or valuer, who would say, for example, that a flock of sheep is worth £20,000. That would be the value at which we would sell them.

Stewart Stevenson

What about companion animals?

Mike Flynn

That is where things become more difficult. We have been involved in puppy farming cases in which people have been prosecuted for selling bulldog pups at £2,500 each when, in reality, they were not worth even £200 each because of all their genetic defects. In such cases, the nearest figure that we have been able to propose, and so the maximum compensation that we would pay, would be the Kennel Club’s average price for a French bulldog, or whatever breed, in good condition.

Stewart Stevenson

Forgive me, but in a sense, we are talking about commercial animals that will become companion animals. However, should a private individual who has a companion animal in situ and is then deprived of it be compensated in any meaningful way?

Mike Flynn

There is an argument that such an animal would never be seized in the first place if it was a perfectly healthy pet that had been well loved. However, in such cases there might be veterinary evidence that a crime had been committed, which casts a different light on matters. I know that OneKind has raised concerns about cases in which we might be seen as having taken away Mrs McGinty’s cat, if I can put it in that way. However, there has to be some provision for such cases. Later, we will issue a briefing about a case in which it turned out that a spaniel called Flo had been poisoned by a qualified veterinary nurse. It took more than four years to get that case to court—during which time the dog had to sit in kennels, which would have been horrible for her.

Stewart Stevenson

I am sure that it was, but the bill provides that a dog in that situation can be moved on in three weeks.

Mike Flynn

That will be the case under the bill: that case was based on what happens as things stand.

11:45  



Stewart Stevenson

That situation is different. I am talking about the very narrow circumstances in which, before the legal process is complete, the animal is removed from its current owner and passed to a new owner, possibly for commercial value. Are we satisfied that the commercial value can be identified? The court could decide that compensation not be given, under proposed new section 32K of the Animal Health and Welfare (Scotland) Act 2006, but that would come much later. It has to be decided within 21 days, or nearby, what the animal is worth. How do we do that for a companion animal? We need to be able to justify the cost to the general public, who might be concerned.

Mike Flynn

Again, we would have to base compensation on the average price of such an animal, taking into consideration what the vet said about its condition. We might say that a particular dog, for example, would generally be worth £100, but the vet has said that it needs whatever amount spent on treatment. Compensating an individual who owns a companion animal would be quite difficult, not in terms of the financial aspect but in terms of the emotional aspect—although why would a person who was emotionally attached to an animal neglect it?

Stewart Stevenson

Indeed.

Angus MacDonald (Falkirk East) (SNP)

The consultation has shown broad support for the introduction of a Scottish Finn’s law. Last week’s panel was also firmly in support of that, as expected. Are the proposals in the bill for a Scottish Finn’s law an appropriate mechanism to increase protection of service animals? Has the current law acted as a barrier to prosecuting and penalising people who have been responsible for attacks on service animals?

Mike Flynn

We fully support the introduction of a Finn’s law. I have been involved with police and military dogs for more than 30 years, and the thought of one of those dogs being attacked when it is carrying out its duty to protect the public is abhorrent to me. I have always been surprised that, when a police dog has been injured, charges are not brought under section 19 of the Animal Health and Welfare (Scotland) Act 2006. Kicking a dog is kicking a dog, whether it is a police dog or not, but the courts have not dealt with such cases correctly.

Such attacks happen mainly in England. In Scotland, they are rare: there are not a lot of attacks on service animals, as far as I am aware, although my colleagues might know about that. I have heard of instances, but they were not like the horrendous examples that I have heard about happening down south.

Detective Chief Superintendent Cunningham

I agree that we have had a minimal number of examples, so it is difficult to form an opinion. I think that the last one was when an individual punched a police horse. Nothing else has come to my attention; I do not know whether Charlie Everitt has heard anything different.

Constable Everitt

Nothing has come to my attention, but my personal view is that Finn’s law looks good and is applicable to Scotland.

The Convener

That attacks have not happened does not mean that there should not be a law in place.

Angus MacDonald

It is good to hear that there have been few incidents, but it would certainly be good to have the law in black and white.

Last week’s panel argued to broaden the definition of service animals to encompass assistance animals, such as guide dogs. Do panellists agree with that argument?

Detective Chief Superintendent Cunningham

I agree that it would be good to widen the definition in that way. Anybody who harms assistance animals should have the full force of the law against them.

The Convener

We will move on. Does Mark Ruskell want to ask about Finn’s law, or are you happy that it has been covered by Angus MacDonald’s questions?

Mark Ruskell

That depends on time, convener. I will be guided by you on that.

The Convener

We do not have much time, but we might come back to the issue. Stewart Stevenson has questions about fixed-penalty notices. Please keep your eye in the clock.

Stewart Stevenson

I will start with a technical question, to which there might be no answer, or the question might more properly be for the minister. The part of the bill that covers FPNs is the second biggest part of the bill. Section 2(8) says that

“Regulations under subsection (1) may modify any enactment (including this Act).”

Subsection 1 makes provision for fixed penalty notices. Does anyone think that that is a very broad provision?

Joanne Fairman

The provision needs to be broad because we cannot and would not use fixed penalty notices for everything that could be imagined. The provision gives us the ability to work through the system and figure out for which offences it would be appropriate to use FPNs. We do not know what the future brings; there could be things that we have not yet thought about that could be dealt with through fixed penalty notices. It has been left open to us to investigate further and choose the appropriate penalty.

Stewart Stevenson

Okay. I am not sure that the provision, as drafted, is restricted to animal welfare. That is for another day.

Robbie Kernahan

The bill will introduce fixed penalty notices to the Animal Health and Welfare (Scotland) Act 2006, but the Scottish Government has also begun focused consultation on extending some of the powers to offences in the Wildlife and Countryside Act 1981, the Deer (Scotland) Act 1996 and the Protection of Badgers Act 1992. The introduction of flexibility at both ends of the regulatory spectrum makes sense for us. There are also administrative and technical offences associated with wildlife for which fixed penalty notices would be beneficial.

Stewart Stevenson

That is the question: do the witnesses think that it is appropriate to have fixed penalty notices as part of criminal law?

Constable Everitt

FPNs are very appropriate for minor technical offences, as your earlier witnesses suggested. Fixed penalty notices are not uncommon in police work—we use them principally in dealing with road traffic offences. There is precedent and there are other areas related to wildlife crime where FPNs are used; for example, Marine Scotland can issue fixed penalty notices in its line of work. They are appropriate for the minor end of wildlife crime, in particular for technical offences, when one would not necessarily consider reporting to the Crown Office. They would provide an alternative disposal to officers.

Colin Smyth

Earlier, several panel members questioned the categorisation of some crimes in the bill. For example, there was a feeling that a crime that impacted on the resting place of an animal, such as destruction of a badger sett, should be categorised as a serious crime. What does the panel think about the rationale for categorisation of crimes?

Robbie Kernahan

That is an interesting question. The proposals aim to tidy things up, but some inconsistencies remain. Some proposals are linked to underlying legislation. It can be a serious crime to destroy the resting places of European protected species, but we do not have the same provisions for badgers or wild birds. There are questions that are not entirely addressed in the bill about the consistency of approach for categorising different types of offence.

Colin Smyth

I suspect that I might get the same answer to this question as Mark Ruskell got to his question. He was asking about animal welfare, whereas I am asking about wildlife crime, but the question is whether the bill’s provisions, such as those on increased sentences and the extension of the time limit for prosecution, will increase the likelihood of bringing a prosecution. I suppose that the difference with wildlife crime, and therefore what my question is really about, is vicarious liability. Will the bill make the prosecution of vicarious liability more or less likely?

Sara Shaw

I do not think that the provisions in the bill will make prosecutions under the vicarious liability provisions of the Wildlife and Countryside Act 1981 any more or less likely. As I have said, each case is considered on its own merits. When we receive a case, we will consider whether we can raise a prosecution.

The ability to prosecute at either summary or solemn level opens up a choice of forum that we do not have at the moment. Currently, if the offending were to be of a particular level or character so as to justify proceedings at sheriff and jury level, that option is not open to the Crown. Otherwise, the considerations that inform our decisions about prosecution—whether a crime has been committed; whether there is sufficient admissible evidence; whether a prosecution is in the public interest—remain unchanged by the bill.

Colin Smyth

How effectively are penalties other than custodial sentences and fines—such as community payback orders—being used in relation to wildlife crime?

The Convener

Does anyone want to come in on that?

Rachael Hamilton

Can I help out here?

The Convener

Are you going to answer Colin Smyth’s question? [Laughter.]

Rachael Hamilton

No. I will go back to the categorisation point. In the previous panel, Ross Ewing of BASC mentioned that the illegal use of pesticides could become a tier 1 offence. It is already an offence. Is there any comment regarding the levels of categorisation? If that was categorised more effectively, would it make prosecution easier? Does the panel have any more detail on that?

The Convener

Do our representatives from Police Scotland want to come in on that?

Detective Chief Superintendent Cunningham

Charlie Everitt has more expertise on pesticide use.

Constable Everitt

When we talk about making prosecutions easier, it comes down to the level of evidence. Whether it is pesticide or proving another crime, that is what dictates a prosecution

Colin Smyth

There is a general feeling from some people who are feeding into the evidence base that, if the crime is seen as serious, it is more likely to attract a higher sentence and more effort will go into effectively investigating that crime and prosecuting it. Is that not just human nature? Given the huge pressure on time and resources for prosecutors and police, if something is seen as a more serious crime—rather than one for which the punishment is a small fine or a rap on the knuckles—more effort will go into bringing that to court and getting a prosecution.

Constable Everitt

That would raise its priority. I have argued that the killing of a golden eagle is not a serious crime at the moment, because it is triable only at summary level. We cannot take it to the top two levels in the country. The Crown Office might have liked to take the Black Isle case, in which double figures of red kites and buzzards were poisoned, up to a higher level. Without a doubt, a higher penalty puts it into the serious crime bracket. We can consider the resources appropriately.

Mike Flynn

I have one comment on Colin Smyth’s point. An increase in the time bar for wildlife crime would be great and welcome. In a lot of the domestic animal crime, we bang on a door and the evidence is there, but it can take months before any evidence comes to light regarding wildlife crime. If it has been going on for three or four months, by the time we start the investigation, we have run out of time. A longer time bar would help in tackling wildlife crime.

Constable Everitt

I support that. The Poustie report looked for harmonisation across wildlife legislation, yet, if we look at the Animal Health and Welfare (Scotland) Act 2006 and the Protection of Wild Mammals (Scotland) Act 2002—hare coursing and foxhunting come under that—we have to provide a six-month period for the Crown Office to issue proceedings. If there is video evidence to be looked through, often by the person who filmed it, that can take a month before it is reported to the police. Our video experts must complete a forensic analysis of the available evidence. That is cramming a lot into the time. By today’s standards, it is not appropriate to try and fit all that inside six months. Police Scotland have had cases that have been really squeezed and have not had the full benefit of the evidence that was presented to the Crown Office, because the staff have not had the time to prepare it.

Other legislation—the Protection of Badgers Act 1992, the Wildlife and Countryside Act 1981 and the Conservation (Natural Habitats, &c) Regulations 1994—has a three-year time bar, which is sufficient for bringing prosecutions. Standardisation of the time bar for all wildlife crime would be welcome.

The Convener

That leads nicely to questions from Mark Ruskell about the enforcement of investigations.

Mark Ruskell

I am interested in the point about filming and video evidence. Will the increase in maximum sentences lead to more authorisation of video surveillance and does the admissibility of that evidence now change?

12:00  



Constable Everitt

Increasing the maximum penalty would certainly allow officers to consider whether surveillance could be used. The bill increases the penalty for someone who is found guilty to imprisonment for five years and the Regulation of Investigatory Powers (Scotland) Act 2000 says that there must be a reasonable expectation that a three-year sentence will be given. Therefore, increasing the maximum sentence would allow officers to ask whether they could use surveillance for further investigations.

Detective Chief Superintendent Cunningham

We are talking about covert surveillance now and there are two aspects to that: directed surveillance and intrusive surveillance. We have always had an option to use directed surveillance as an investigative approach for any crime that has been reported. The bill would bring the maximum sentence up to five years, which is good because those crimes would then be classified as serious crimes, which would bring in intrusive surveillance.

Directed surveillance, such as having a camera in a set location to try to capture aspects, is slightly less intrusive in people’s private lives so we can justify it more easily. Intrusive surveillance is for a serious crime, which, as Charlie Everitt rightly said, requires an expectation of a three-year sentence. On a case-by-case basis, we can then look at whether the use of intrusive means is the only way to identify the individual who is responsible. It would give us another investigative strand towards, hopefully, the prosecution of the individuals responsible.

Police Scotland is trying to educate the numbers of wildlife crime officers who are coming through to make sure that they are aware that we can apply for intrusive surveillance and that there is an expectation that we will do so.

If intelligence is shared with us—the RSPB has done that in the past—that will give us a basis for going to our authorising officers in Police Scotland and saying, “These are the reasons why we think that it is justified.” It will also pass the direction of the surveillance commissioners who will look at any impacts under the European convention on human rights. The bill is a good piece of legislation that would provide us with a suite of options and allow us to carry out not only directed covert surveillance, but intrusive covert surveillance.

The Convener

Someone on the previous panel commented that if the police are using surveillance more, it might encourage people who are not the police—the word “vigilante” was used—to use videos to gather evidence. They might think that they were doing a good thing, but they would actually be impacting on people’s privacy. What do you make of that?

Detective Chief Superintendent Cunningham

Again, it probably comes down to our media strategy and having an education process. There will be an awareness that surveillance might be used and perhaps members of the public will try to use it—that can all be captured as well. I do not agree that we will get vigilantes going out and using surveillance. It is about how we deal with the issue and making sure that we take the lead.

At this stage, I do not see many covert surveillance applications being made, because I think that we should look to enhance our intelligence picture first. I keep going back to that point, but without the intelligence, we cannot move to a better investigative standard and justify carrying out covert surveillance. It is about information sharing, identifying those who are responsible, looking at the crime hotspots and working out what the best suite of options and the best tactics are. We would then perhaps sit down with partners to see who can bring what to the table and therefore have a joined-up approach.

Mark Ruskell

Would the bill change the admissibility considerations that the Crown Office would take into account?

Sara Shaw

No, it would not change the admissibility considerations—we still have to consider the law on the admissibility of the evidence and apply the law to the facts and circumstances of each case. As has been explained, the bill would remove an obstacle that is currently in place—there would be the ability to consider the serious crime test—but it would not impact in any sense on the law on the admissibility of evidence.

Mark Ruskell

Thanks. I will move on to the powers of the SSPCA. I am interested in the panellists’ views on whether the current powers of the SSPCA are appropriate and whether they should be extended to include wildlife crime, particularly in relation to gathering evidence.

Constable Everitt

In the example that was highlighted by Ian Thomson in the previous session, it would have made complete sense for the SSPCA inspectors to be able to gather evidence and take it to the police for further investigation, and such a power could be welcomed.

It would be welcome if the bill extended the powers under the Animal Health and Welfare (Scotland) Act 2006 so that SSPCA inspectors could enter land for a welfare reason, then go on to exercise powers under the Wildlife and Countryside Act 1981 to gather further evidence, as in the example that was described.

I am not sure exactly what is intended when one talks about the powers under the Wildlife and Countryside Act 1981, but if the SSPCA inspectors were also able to enter land under section 19 of the Wildlife and Countryside Act 1981, that would start causing confusion about who polices wildlife crime, and the public might not know to whom they should report such crimes.

As I said, an extension to the powers of entering land under the Animal Health and Welfare (Scotland) Act 2006 would be welcome.

The Convener

It will be important that everyone works in partnership and is aware of their role.

Mike Flynn

This is my version of groundhog day. Some politicians will be old enough to remember that this started off back in 2010. The proposal was that the SSPCA would assist in any way that we could, but would never take over from Police Scotland. There is an anomaly in section 19(1) of the 1981 act in that we cannot retrieve evidence where we can see that an offence has happened, unless a live animal is present, in which case we can take the evidence under the 2006 act.

As Ian Thomson said earlier, if we look up and see a line of traps, we have to go away and get the police. The police do a fantastic job and we could not do our jobs without them. However, when it comes to wildlife crime, this is a sticking plaster. There are only 100-odd officers on shift patterns covering the whole of Scotland, and there have been occasions when we have been in the situation that I described, phoned the police and there was nobody available.

It is not about us taking over anything. We must remember that the SSPCA does not prosecute. We gather evidence, but it is the Crown Office that prosecutes. The evidence that is required for a wildlife crime is no different from what is required for a domestic animal crime. We put in about 90 cases under the 2006 act last year, but if we were not doing that job, about six domestic animal cases would have been put in by the local authorities and the police.

I am not saying that we will boost the number of prosecutions on wildlife crime. However, after Roseanna Cunningham made her decision in 2017, we wrote and said that the SSPCA would help the Scottish Government in any way whatsoever under any form of animal welfare legislation. Our offer still stands. I think that the current minister did not have all the background on the situation—she has not been long in post.

As I said, the issue has been round the block quite a few times.

The Convener

It comes back to the information-sharing aspect that DCS Cunningham talked about earlier. It is about better information sharing and the ability to work better together.

Detective Chief Superintendent Cunningham

There are definitely options for that. I take on board all Mike Flynn’s points. We must have that sidebar, because it has been going on for so many years. There are options such as putting a police officer into the SSPCA team to work on special investigations, which would bring in police powers. We could see how that works.

There are more discussions around the issue that I would like to be privy to. Over the years, so many papers have been written and opinions given, so we want to see where we can take it to ensure that we get the improvements that are required.

Mark Ruskell

It has been put to us that the SSPCA might have a conflict of interest. Do you recognise that criticism?

Mike Flynn

As I understand it, the conflict, which was raised in 2015, is that we have a policy of opposing snaring. It is based purely on welfare grounds, but people said that if the SSPCA got the powers, how could we be independent on a snaring issue? The police have campaigned about drink driving every year for the past 20-odd years, yet they enforce the law on drink driving every day. If we see a perfectly legally set snare—one that is free running and tagged—we leave it, because it is lawful. We would be breaking the law if we interfered with such a snare. There are obviously already bans on self-locking snares in which animals could become entangled. Our policy might say one thing, but the law is above our policy, so if the law allows it, that is that. As far as I am concerned, there is no conflict of interest. If the law says that something is allowed, it is allowed.

Finlay Carson

I have a question on enforcement and investigation. For the bill to have an increased deterrent effect, what importance does the panel put on increased resources, training and raising public awareness?

Detective Chief Superintendent Cunningham

Those aspects are extremely important. As Mike Flynn said, we have just short of 110 wildlife crime officers around the country and seven full-time and six part-time wildlife crime liaison officers. It is up to Police Scotland to ensure that the officers have the highest level of training in investigations so that, no matter what wildlife crime they are faced with, we have a level of confidence in the officers’ professional standards and approach.

There are new courses available and new forensic approaches—forensics are key, which has been missed in previous years. We must develop forensic strategies to support the officers. We also have forensic services moving into that area, so we can call them out to crimes to get their expertise.

There should be a level of confidence for the committee that Police Scotland has captured that. The first course, which was opened by Roseanna Cunningham, was held in January and it will continue to run twice a year so that we can provide that enhanced training, as well as internet-based training packages for all officers throughout Scotland.

The Convener

I thank the panel for their time. I will suspend the meeting briefly to allow them to leave.

12:10 Meeting suspended.  



12:13 On resuming—  



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Fourth meeting transcript

The Convener (Gillian Martin)

Welcome to the Environment, Climate Change and Land Reform Committee’s 35th meeting in 2019. I remind everyone to switch off their mobile phones or put them on silent, as they might otherwise affect the broadcasting system.

Agenda item 1 is to take evidence at stage 1 on the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill. I am delighted to welcome the Minister for Rural Affairs and the Natural Environment, Mairi Gougeon, who is accompanied by her Scottish Government officials Andrew Voas, veterinary head of animal welfare; Leia Fitzgerald, wildlife management team leader; and Hazel Reilly and Grant McLarty, solicitors. I welcome all of you and thank you for coming to the meeting.

I believe that the minister would like to make a short opening statement.

The Minister for Rural Affairs and the Natural Environment (Mairi Gougeon)

Yes, if that is okay.

The Convener

That is fine.

Mairi Gougeon

Thank you very much.

I am delighted to be here to give evidence on the proposals in the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill. If the bill is passed, it will have an immediate impact in modernising and strengthening the implementation of the existing legislation to assist the enforcement authorities and ensure that Scotland’s animals and wildlife benefit from the best protection.

As members know, the bill is tightly focused to deliver the changes that are most sought by front-line enforcement staff, which require amendments to the existing primary legislation, with the aim of those changes being in force by next year. My officials are also working on a number of other initiatives that do not require changes to primary legislation. I hope that the committee appreciates that that package of complementary measures will address a wide range of stakeholder concerns about Scotland’s animals. The priorities that the bill addresses result from a close working relationship between officials and stakeholders with practical experience of implementing Scotland’s groundbreaking legislation.

Bearing in mind the increasingly busy parliamentary schedule, we are presenting a tightly focused bill that tackles the most important issues that require primary legislation. It increases the maximum available penalties for animal cruelty and wildlife crime, introduces Finn’s law and the power to introduce suitable fixed-penalty notice regimes in future and improves the procedure to rehome animals that have been taken into possession by enforcement authorities as soon as possible to protect their welfare.

Thankfully, the most serious animal cruelty and animal fighting offences in Scotland are rare—there have been 41 custodial sentences in the past 10 years. However, those offences, which are sometimes horrific, rightly attract considerable public concern. We have also heard evidence about the links to serious organised crime in some cases. The bill therefore provides courts with the flexibility that is needed to impose sentences that are appropriate for a wide range of offending behaviour.

We have heard evidence that, in some recent cruelty cases, the sheriffs have commented that the current sentencing restriction of 12 months might not be appropriate for the worst types of offending. The new maximum penalties of five years and an unlimited fine will provide an appropriate penalty for the worst cases of animal cruelty—namely, offences that cause any unnecessary suffering to an animal and offences that relate to animal fighting. It is worth noting that any other cruelty, such as mutilating, poisoning or abandoning a protected animal, could also be prosecuted using the new penalties if unnecessary suffering can be proved.

The new penalties and the availability of trial by indictment will also directly benefit enforcement agencies such as Police Scotland, the Scottish SPCA, local authorities and the Crown Office and Procurator Fiscal Service by removing the statutory six-month time limit to report cases for prosecution. That will give authorities additional time to gather all the appropriate evidence and to draft reports that are complete and considered in relation to increasingly complicated cases, which often involve serious organised crime elements.

I am proud to be introducing Finn’s law in Scotland. I have met Finn and his handler, Dave, as well as colleagues in Police Scotland and have heard first hand about the importance of the role of police dogs and horses. I have also been touched by their support for the measures, which, along with the other elements of the bill, are essentially the right thing to do and keep pace with other United Kingdom Administrations.

The intention is that the proposed technical refinement along with the increase in the maximum penalties available for all cruelty offences will make it easier to prosecute those who attack service animals in the course of indispensable duties. That will provide police animals with equivalent protection to that for animals that are not routinely used in situations in which an attacker can claim to have been acting to defend themselves.

The bill proposes to insert overarching powers into the Animal Health and Welfare (Scotland) Act 2006 and the Animal Health Act 1981 that will allow the future introduction of fixed-penalty notices through regulations. FPNs will be an additional enforcement tool that will provide additional flexibility to address a variety of future offences. FPNs could be used to deal more effectively with technical and administrative types of breaches. Although such breaches might not impact negatively on individual animals, they can be detrimental to the welfare of the wider animal populations, and it is important to deal with them to improve compliance overall.

The bill proposes a new and innovative approach to swiftly resolve the emergency situation when animals are taken into care to protect their welfare. It allows animal welfare authorities to make the best arrangements for such animals without the need for a court order. The new streamlined process will result in significant savings in staff time and resources for all parties, including the courts, and should speed up the process of resolving the often traumatic animal welfare situation. The swift resolution of the animal welfare issue will enable other agencies, including social work, to deal with any other related issues. We know that the neglect and subsequent suffering of animals is often a symptom of another problem, such as financial difficulties, bereavement, mental health issues or other illness.

The new process has been designed to balance the property rights of the individual with the need to halt and prevent further animal suffering, recognising that, although animals have a legal status as someone’s property, they are also sentient beings whose welfare needs need to be prioritised. The safeguards that are being put in place to comply with human rights obligations include the provision for compensation to be paid and two appeal processes: one to challenge the decision to rehome and one to challenge the amount of compensation. The bill introduces an important new power for payment of compensation to be deferred pending the outcome of a relevant prosecution, as well as allowing a court order that no compensation is payable if an owner has been convicted of a relevant offence.

The bill will standardise wildlife crime penalties and bring the penalties for 22 of the most serious offences that involve the illegal killing or injuring of wild birds and animals into line with the new maximum penalties for animal welfare offences. That recognises that wild animals should be given equivalent protection to domestic and farm animals from the worst types of deliberate harm. The penalties for 36 other offences, including those dealing with the disturbance of wild animals and their habitats, will be standardised and increased in line with the recommendations of the Poustie report.

As you have heard, there is widespread and strong support for the proposals in the bill. I am honoured to be responsible for introducing the refinements in it, which will make an immediate impact to assist enforcement and further protect Scotland’s animals. During the committee’s evidence sessions, there has been much discussion of other matters that could be improved. The suggestions included arrangements for better enforcement, developing empathy to avoid future offending, and possible new offences. It is useful for those issues to have been raised. I assure the committee that I will follow them up to see how they can best be addressed. However, many of those areas will not require new primary legislation. The bill’s focus is on the most important improvements that can be made to assist the enforcement authorities in dealing with existing offences without creating new offences or responsibilities.

I look forward to working with the committee as the bill proceeds so that the important improvements that are contained in it can be introduced without unnecessary delay. I look forward to taking the committee’s questions on that.

The Convener

Thank you for that comprehensive statement. You have taken us through some of the evidence base that the Scottish Government has looked at to support its decisions on the format of the bill, but I have a quick question on that. Did you look at how other countries have dealt with similar issues? Part of the point of the bill is prevention of cruelty to animals. Did you look at other countries that have been doing that better to inform your approach to the bill?

Mairi Gougeon

A vital consideration in increasing the penalties is so that they act as a real deterrent. There are not too many people involved. As I outlined in my statement, about 41 custodial sentences have been given in the past 10 years so, thankfully, such cases are not all that common. However, we want the penalties to act as a strong deterrent to put people off committing such crimes in the first place.

It was important for us to look at what happens elsewhere and the penalties that exist there. Doing so highlighted how lenient our existing penalties appear to be, so we are now looking to increase them. I think that New Zealand, Canada and some states in America have penalties that are in line with the levels that we are seeking to increase ours to, with five years’ imprisonment and a potential for an unlimited fine to be imposed. England and Wales are looking to increase their penalties to the same level. I think that Northern Ireland is another example closer to home where there are similar penalties. It is important to look at what is happening elsewhere and to try to learn from those examples.

The Convener

An issue that has been raised is disqualification orders. Questions have been asked about where the information on people who have been disqualified from keeping animals is kept and who has access to that information. Quite a few of the people who gave evidence to us asked about monitoring, given that in the past, disqualified people have been able to carry on keeping animals and even set up in business under another name. Have you given the issue any consideration?

Mairi Gougeon

That is an important point that has come out of the evidence that you have taken on the bill. It absolutely is something that we will look at. I think that the same issues have come up in relation to wildlife crime; there were discussions about the importance of information and intelligence sharing in that regard.

I will look at the issue to do with disqualification orders. I suppose that it is about how we make that information more available, as opposed to setting up an entirely new database where all the information would be, which would have resource implications. It is about ensuring that we share information better, so that the agencies that need it have access to it; it is not necessarily about making the information publicly available.

The Convener

The Scottish SPCA and the police told us that their officers can find themselves walking into a potentially dangerous situation—as a result of a report from a neighbour, for example—without realising that the person has been disqualified from keeping animals. They say that they do not currently have access to the information that they need.

Mairi Gougeon

I recognise that issue and we need to consider it seriously, to ascertain how the information could better be shared with the agencies that need access to it.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

A prison sentence serves as punishment. It also takes away the offender’s opportunity to reoffend while they are in prison. The Scottish Government has chosen a third leg to stand on: deterrence through long sentences. I asked one of our witnesses to provide evidence that longer sentences act as a deterrent. My view is that what matters is the prospect of being caught rather than the prospect of a sentence. What evidence that longer sentences constitute a deterrent are you relying on?

Mairi Gougeon

The focus is not just on deterrence; we are trying to give agencies a full suite of options when they are in different scenarios and to ensure that all sorts of penalties are available. There are penalties that are not currently available that I hope will become available when the bill is passed. It is about covering all the bases. Deterrence is one element of that. We want the deterrent effect to be stronger. Andrew Voas might give an example of a situation in which a longer sentence proved to be a deterrent. The issue came up in evidence, probably more in relation to some of the wildlife crime legislation that we have introduced, which has had a deterrent effect.

Andrew Voas (Scottish Government)

On deterrence, we have looked at the different studies that are available—there is a lot of evidence from the United States of America. There is a balance between the probability of being apprehended and the sentence, and the offender’s state of mind must also be considered.

It is clear that some offences involve more planning and thought, and the possibility of a long sentence will be more of a deterrent in such cases than it would be in a situation in which someone acted on the spur of the moment or became violent and aggressive, when the person might not be thinking about the deterrent effect.

Having longer sentences is also about the importance of recognising public abhorrence at the worst cases of deliberate and sadistic cruelty to domestic and wild animals. That is part of the justification for making long sentences available in the most extreme cases.

There will be a deterrent effect if someone is going through the process of planning to commit a crime. We have heard about the profits that can be made from crimes such as illegal puppy dealing and fighting—profits can come from gambling or selling fighting dogs. In such cases, where there has been more planning and thought, we think that the longer sentence will be a deterrent.

Finlay Carson (Galloway and West Dumfries) (Con)

There have been inconsistencies in sentencing when it comes to bans on keeping animals or disqualification orders. What work have you done to ensure a more systematic approach?

09:45  



Mairi Gougeon

Under section 40 of the 2006 act, there is already a strong presumption in favour of using disqualification orders. Right now, courts have to actively consider that and, if they do not grant a disqualification order, they have to give reasons for not doing so. In some ways we already have that in existing legislation.

Finlay Carson

Should there be a presumption that there will be a banning order as standard in cases of animal welfare convictions?

Mairi Gougeon

Again, I think that that is already the case. I do not know whether you heard anything contrary to that in your evidence.

Finlay Carson

We certainly had evidence of inconsistency in applying banning orders.

Mairi Gougeon

Again, I would say that section 40 of the 2006 act already provides that courts have to give a reason for not granting a disqualification order, so such orders have to be considered in those cases.

Finlay Carson

So there are no plans for the bill to strengthen that.

Mairi Gougeon

No, we are not proposing any changes to that.

Finlay Carson

Is any further work going to be done on what resources are available to raise awareness? It is all about deterrence. We just want to stop people being cruel to animals, so deterrence is very important. What work will you do to resource further awareness raising? We saw in the past that, when the Control of Dogs (Scotland) Act 2010 was introduced, a lack of awareness about it meant that it did not have the effect that we wanted it to have. What resources are you going to put in to make people aware of the bill?

Mairi Gougeon

As with any new piece of legislation, it is all very well our talking here about a deterrent, but it is a deterrent only if people know that it exists and know about the changes that we are making. I see that as an important element of the work that we will do as the bill progresses and, I hope, is passed by the Parliament. We need people to know about the changes that we have made and the consequences that there will be if anybody commits any of these offences.

We have experience in launching successful publicity campaigns. Towards Christmastime last year, we ran a campaign on the illegal puppy trade. We launched that campaign again this year, based on its success last year, to make people aware and to drive down the demand element of the puppy trade. The campaign had a huge success rate last year—I think that it led to a 130 per cent increase in calls to the Scottish SPCA—and it is running again now. We will look at examples of where we have launched successful campaigns to see whether we can do something similar to raise awareness of the changes that we are making.

Finlay Carson

Finally, do you believe that we will need new sentencing guidelines to ensure that people are aware?

Mairi Gougeon

I know that that is a point that came up in your evidence, but it will be up to the Scottish Sentencing Council to determine that and to prioritise it as part of its work. I know that it is working to prioritise sexual offences at the moment and that its current work programme takes it up to 2021, but I imagine that it will have an interest in this new piece of legislation. I would be happy to raise that point with justice colleagues and flag it up as something that they should consider.

The Convener

Before I move on, I want to come back to knowledge sharing about people who have been banned from keeping animals or convicted of animal cruelty or animal welfare crimes, because we often see a link between animal cruelty and violent behaviour. Have you considered sharing knowledge about people who have committed animal welfare crimes, so that social services are aware of that aspect of their behaviour? There might be a link to other crimes, including organised crime.

Mairi Gougeon

Absolutely. It was very important in the evidence. The Scottish SPCA does a lot of good work, especially when it comes to prevention and working with young people at an early stage, identifying those links that can occur later in life. We would absolutely look to do what you propose. We do not need primary legislation to do that; it is all about the sharing of information and intelligence and ensuring that the relevant agencies are aware of it.

Claudia Beamish (South Scotland) (Lab)

We have been told that, in certain American states, if someone receives a sentence for a serious animal welfare crime, the information about that offender is passed to social services. I thought that that was interesting. Obviously, such a provision would not be in the bill, but it is quite important that we consider such initiatives on the record.

Mairi Gougeon

Absolutely. We are happy to consider such examples and see whether there is anything that can be applied to what we are doing.

Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

As you will have seen from the evidence that we have taken, a number of stakeholders have questioned whether the definition and scope of the term “protected animals” in the bill is broad enough, and believe that now is a good time to air those issues.

Does the Scottish Government consider that the definition is up to date and fit for purpose? Is it something that could be reviewed by the animal welfare commission?

Mairi Gougeon

The commission could review that. At the moment, the idea is that it would consider issues relating to all vertebrate animals. I believe that the definition in the 2006 act is suitable, and we are able to change and adapt it—that power already exists, so we do not need it to be included in the bill. However, I would be happy to consider the issue in the future.

Rachael Hamilton

Will the issue be considered by the animal welfare commission, rather than being addressed by the Scottish Government in the bill?

Mairi Gougeon

We have the ability to change and adapt the definition, but taking evidence on the issue could well be something that the animal welfare commission could do.

The Convener

I want to ask about the issue of rehoming and transferring animals without a court order. The minister will be aware that I had a situation in my constituency in which dogs and puppies were kept for nearly two years before a court process. It is welcome that we might now be able to rehome animals quickly. However, there are some issues that we would like to clarify, particularly with regard to the rights of the owners of those animals.

First, when an appeal is lodged, are there are any opportunities for the court to expedite that appeal if a delay causes welfare issues?

Mairi Gougeon

There are lots of important elements in the bill, but the proposal on rehoming is one of the key things that will deliver a transformational change for the enforcement agency. The SSPCA highlighted in its evidence that the proposal could save it a lot of money—I think that it said that it had spent £1.5 million in less than two years on caring for animals in that position.

On appeals, it is important to highlight that we have reversed where the onus now lies. It is now on the owner rather than the enforcement agency. That is an important change. There will be a three-week window in which it is up to the owner to lodge an appeal. The process is as streamlined now as it possibly can be. Another important change is that it is up to the sheriff to make a decision on that, and I think that the nature of the way in which the appeal will be determined means that it should be a streamlined process and not a long, drawn-out affair. A further important change is the fact that the sheriff’s decision is final, and there is no further right of appeal beyond that. That, too, will make a big difference.

Grant McLarty might want to add something to that.

Grant McLarty (Scottish Government)

The process would involve summary application procedure, which is the most streamlined procedure that is available within civil court procedure. I am not aware of any other ready-made procedure that could be used.

The Convener

When we were taking evidence, we discussed the issue of owners with mental health issues having their companion animals taken away from them because they are accused of harming them—I think that Finlay Carson brought that up. What will be in place to help those people, who might be under extreme stress at the time? Is anything being considered in that regard?

Mairi Gougeon

Again, I do not think that there is anything that we could do in primary legislation to deal with that—it is something that we would have to look at. A decision notice would have to be served, so a person would be made aware of what would happen. Presumably, when the enforcement agencies engage, they will be able to identify whether there are other issues. I would hope that we could support a person in such a position, or at least make them aware of what they could do, the measures that would be open to them should they choose to appeal a decision notice and how they could work through that process. That is very much how I envisage and hope that things will work. However, we can go away and consider the issue and discuss with the enforcement agencies what such a package might look like.

The Convener

Given that Finlay Carson initially raised the issue, is there anything else that he wants to pick up on?

Finlay Carson

I want to make sure that the Government has considered the implications for people’s mental welfare in situations in which there is no direct intention to cause suffering. The measure applies to farmers, too, and an issue may arise because a farmer is having problems keeping their stock. You said that you will think about the issue and that it is important, but what will you do? How will the bill address such situations? Will there be guidelines or whatever on how to deal with individual farmers?

Mairi Gougeon

Again, that is something that we need to look at separately from what we can put in primary legislation. I know that it is an important point—I think that the Animal and Plant Health Agency raised it in oral and written evidence to the committee. We engage with the agencies involved, including the enforcement agencies, so we are well aware that it is an issue.

I am more than happy to get back to the committee with more information on the matter, but we are hoping to engage with the enforcement agencies to make sure that it is all taken into consideration. There is a process. People will be—they need to be—made aware. As you said, it is about looking at the wider issues and making sure that we fully consider them.

The Convener

Our next theme is on compensation, on which Stewart Stevenson has some questions.

Stewart Stevenson

Because of what I am about to say, the lawyers should pay particularly close attention.

Section 11 makes substantial additions to the Animal Health and Welfare (Scotland) Act 2006. I will start with proposed new section 32H(3) of the 2006 act, which is about how much compensation will be paid. It says:

“the compensation amount is the greater of—

(a) the market value of the animal at the time it was taken into possession ... and

(b) the market value ... at the time immediately before the last relevant step ... in the compensation notice was taken”.

The relevant steps in the compensation notice are described in proposed new section 32G(1) of the 2006 act, paragraph (g) of which says that the notice must specify

“whether the authorised person is electing to defer payment of the compensation amount”,

which moves the end of the process further out to the horizon. There is then a reference forwards—I hate these references backwards and forwards; that is a drafting issue that I have long had—to proposed new section 32J(3) of the 2006 act, which says:

“The authorised person may defer payment where—

“(a) relevant criminal proceedings have been commenced ... or

(b) in the opinion of the authorised person”

they may be commenced.

We are looking at the calculation of the compensation amount being moved into the distance. Given that the amount is the greater of the value at the time that the animal is taken and the value at the time that compensation is paid, by the time that it is paid, one would hope that the welfare status of the animal concerned has, since being seized, improved rather than deteriorated, so the value of the animal is very likely to have increased. I really want to challenge whether that is, in policy terms, the right thing for us to do, albeit that there are further provisions that allow for the costs of looking after the animal in the meantime—veterinary treatment and so on—to be deducted.

As a matter of principle, should it not be the case that the compensation amount should be the lower of the market value at the point of seizure and the market value before the last relevant step is taken, rather than the greater of those two values?

As I say, you have to go backwards and forwards several times to come to that conclusion. I am not a lawyer—I am a layperson—and I am waiting to be told that I have totally misread the bill, but that is the way that I read it. Am I right and, in policy terms, is it the right thing to do?

10:00  



Mairi Gougeon

Yes, you are right. I would agree that the cross-referencing in the bill is particularly difficult, especially with regard to the wildlife sections. Convener, you talked about the property rights of the person who owns the animals. Grant McLarty can elaborate a bit on that—

Stewart Stevenson

I am very happy to hear from the lawyers, but before we do, as a matter of policy—which I think lies at your desk rather than that of the lawyers—should it not be the case that any increase in the value of the animal after seizure should not be attributed to the person who has been deprived of ownership of the animal, given that it arises from the state intervening and not from any action on the owner’s part?

Mairi Gougeon

I completely understand that point, which I know came up in the committee’s evidence sessions. Anybody looking at the issue would entirely agree.

Although I talk about balancing up the property rights of the owner of the animals, this is also about trying to take away what could be perceived as a profit element when the animals are eventually sold on. That is why the bill is phrased in that way.

Stewart Stevenson

Forgive me, minister, but if there is a profit from having seized the animals that would not have existed if they had not been seized, should the profit not accrue to the state rather than to the animal’s previous owner? That is the principal point that I am pursuing here.

Mairi Gougeon

I am not sure whether that profit would go to the state or to the enforcement agency that has been caring for the animal.

Stewart Stevenson

I see that Mr McLarty may have a powerful torch to shine on the legalities.

Grant McLarty

Perhaps the policy justifications could be elaborated on first, and then I can explain the legal justifications.

Andrew Voas

It is important to understand that the current arrangements are that when animals are sold by the enforcement agencies, that income goes back to the owner, minus relevant expenses. There are a couple of examples of that in the financial memorandum. In many cases, the enforcement authority’s expenses will be quite substantial, so the amount of money that goes back to the original owner will not be all that much.

Until a person is found guilty of an offence, it is important that we treat them as though they are not to blame in legal terms. No matter what we may think of them or what prejudices we may have about the circumstances, it is only fair that we treat them as innocent until they are convicted of an offence. That is an important principle. The enforcement authorities have to preserve the value of the animals and get a suitable return from those animals. The bill acknowledges the current arrangements and allows for them to continue, but with the important new proviso that compensation can be deferred if there is a relevant criminal case, and not paid all if the person is convicted and the court decides that compensation should not be payable. It is properly for the court to decide what the penalty for the convicted person should be, rather than that being something for the enforcement authority to deal with when the animals are taken into possession.

The new arrangement allows for the value to be determined at the time that the animals are taken into possession, which in turn allows for situations where the enforcement authority may want to dispose of the animals, move them on or rehome them at a lower market value for the sake of the welfare of the animals. However, it preserves the value of the animals at the time that they are seized for the owner who, at that point, has not been convicted of any offence.

Stewart Stevenson

I may be being exceptionally dim, but I have just heard that there is a whole set of essentially administrative or court provisions that mean that the previous owner might not capture the enhanced value. However, the bill provides, through the two alternatives in proposed new section 32H(3) of the 2006 act, for the possibility that they might. I do not understand, as a matter of principle, why those provisions should be there. Any increase in value after the animal is seized would seem to rest on the intervention of the state rather than on any action by the owner. I understand that the owner should be entitled to compensation for the value of the animal at the point of seizure—I am not picking at that at all—but I cannot see why they should be compensated for any increase in value.

It may be that there is something in the European convention of human rights that means that the provision has to be phrased in that way. If that is the case, I would like to hear about it, so that I can shut up and stop boring the committee on the subject, as there is a severe danger that I might otherwise continue to do so for some time to come.

Andrew Voas

That raises an important policy point, which we touched on earlier when we acknowledged that some of the welfare cases result from owners lapsing into ill health or experiencing mental problems. In many circumstances, the owners are vulnerable people, and in such circumstances it is right that we try to support them.

As I said, the financial memorandum gives an example of a case in which animals in poor condition were taken away from an owner. They were kept for several months, during which time they increased in value. The increase in value was given back to the original owner, minus the relevant expenses. In a way, the provision protects the interests of somebody who is vulnerable and who may not have been convicted of an offence. There may have been mitigating circumstances, such as ill health or another reason why the person was particularly vulnerable. In those cases, the enforcement authorities are protecting the interests of the person.

That is the policy background—Grant McLarty may want to expand on the legal aspects.

Grant McLarty

It is correct to say that rights under the ECHR are engaged. The provisions in the bill have been designed to take into account the rights under article 1 of protocol 1 to the ECHR, which provides that:

“Every ... person is entitled to the peaceful enjoyment of ... possessions. No one shall be deprived of”

these

“except in the public interest and subject to the conditions provided for by law”.

For these purposes, an animal is regarded as a possession.

Where article 1 of protocol 1 is engaged, a fair balance has to be struck between the demands of the public interest and the property rights of the individual. The bill seeks to pursue the legitimate aim of protecting the welfare of animals, which is in the public interest. Exercise of the new powers in the proposed new section 32A to transfer ownership of, or destroy, an animal will engage the property rights that are protected by article 1 of protocol 1 to the ECHR. Likewise, treatment of an animal using the powers in proposed new section 32A may also engage those property rights. The new powers conferred by the section are nonetheless considered appropriate when they are considered alongside the right to appeal, in respect of both the decision that is made in relation to the animal and the entitlement to compensation. Those are two crucial elements that we have built into the system to take account of concerns around property interests.

It is important to remember that the existing powers under section 32 of the 2006 act, which are used by inspectors or constables to take possession of an animal, are exercised without any judicial intervention. There has been no civil or criminal determination of guilt or blame, or responsibility. On that basis, we have approached the legislation by building in the ability to provide for reasonable expenses, in caring for the animal after it has been taken into possession and in implementing the decision that is taken in relation to the animal, to be deducted from any sum that is paid—if there is value in the animal—to the owner. There is also the ability to defer payment of compensation, and for compensation to be forfeited in future criminal proceedings. In a legal analysis, that is the rationale for those provisions.

Rachael Hamilton

I go back to the point that Andrew Voas made with regard to whether the reasonable costs are taken into account and fair compensation is paid. You specifically mentioned the legal definition. Obviously, it is up to those involved to make a decision on whether a welfare issue has arisen as a result of an owner’s mental health condition or problems with stress, as we have discussed today.

Does the bill give the ability for that to be taken into account, or would that be the role of the people who make the decisions about reasonable cost or fair compensation at the time? Does that need to be set out in the bill?

Mairi Gougeon

It is up to the authorised person, as defined in the existing legislation. They can make a judgment, and they must lay out why they believe that compensation should be deferred. They have the relevant powers to take all those factors into account.

The Convener

We will now move on to discuss Finn’s law.

Angus MacDonald (Falkirk East) (SNP)

I welcome your remarks on Finn’s law in your opening statement, and I am glad to hear that you have met Finn in person.

The committee has heard that there is broad support for the proposal, which would enhance protection for service animals. It is worth noting that we heard from Police Scotland last week that attacks against service animals have been rare in Scotland in recent years, which I am sure is welcomed by all of us.

Some stakeholders have suggested that the provisions of Finn’s law could be extended to other animals that are put into potentially vulnerable positions through providing assistance to people, such as guide dogs and other assistance animals. Why is it appropriate for the provisions to be limited to service animals, and not to be extended to other animals that provide assistance to people, such as guide dogs? Has the Scottish Government considered broadening the definition?

Mairi Gougeon

Thank you for making those comments. This is another vitally important part of the proposed legislation, which will keep us in line with other changes across the rest of the UK.

I should point out that the bill is not really about changing a definition in the legislation; it is about recognising service animals and giving them the same recognition as other animals in legislation, recognising them as sentient beings rather than property. It is important to highlight that, because we are removing a defence of self-defence as it exists in the legislation—in section 19 of the 2006 act, I think. That has enabled people to claim that they attacked a service animal in order to defend themselves. However, by the nature of the work that the service animals do, that is what they are there for. The bill is not really about changing or adding to a definition; it is about giving service animals the same protections that other animals in Scotland have—and that involves the penalties that we are increasing for section 19 offences.

Angus MacDonald

We heard from stakeholders who raised the possibility of treating attacks on service animals as an aggravating factor in relation to an offence. For example, if a person is charged with a public order offence, an attack on a service animal could be an aggravating factor as part of that offence, resulting in a higher penalty. Has the Scottish Government considered whether an attack on a service animal could be treated as an aggravating factor in relation to an offence such as a public order offence?

Mairi Gougeon

We had not considered that. The bill is essentially about increasing penalties and powers and examining the offences that we already have; it is not really about creating new offences, which an aggravating factor would be. In order for us to do that, we would need to consult on and consider the matter further. We are not creating any new offences in the bill, so I would be reluctant to pursue the suggestion at this stage.

It is important to note that an attack on a service animal can also be prosecuted as part of a public order offence at the moment. To include such an offence under the bill, however, would mean doing a whole host of other work.

The Convener

We will move on to talk about fixed-penalty notices. Could you be nice and succinct, please, Mr Stevenson?

10:15  



Stewart Stevenson

I will do my best, convener.

The bill’s long title makes two references to fixed-penalty notices. In the minister’s introductory remarks, she said that the bill is about the worst cases. However, I presume that fixed-penalty notices are about the least worst cases. I note from the consultation paper that you have just published on fixed-penalty notices that marine enforcement officers—interestingly, they are not constables—can issue FPNs of up to £10,000. It is clear that, in some circumstances, FPNs can be more substantial than we might normally think. The bill does not set any limits on FPNs. It would be useful to get on the record an idea of what the Government thinks the limits will be. Should the bill state what the limits are, as I understand the Aquaculture and Fisheries (Scotland) Act 2007 does in relation to FPNs that can be imposed by MEOs?

Mairi Gougeon

As I said, the aim of introducing fixed-penalty notices is to add to the suite of available options. That is why we are introducing FPNs for animal welfare issues. We have a consultation out at the moment in relation to animal health as well as the consultation that you mentioned, which I think is open until 19 January, with the potential to introduce fixed-penalty notices for wildlife crime. It is important that we consider making the suite of options available right across the three areas.

The regulations to introduce those measures would be subject to the affirmative procedure, and I fully intend to work with the committee as the regulations are developed. We need to allow some flexibility in that. I envisage fixed-penalty notices being used for technical and administrative offences. I do not want them to be used for any offences relating to animal suffering, for example—FPNs would not be appropriate for that. All that work is coming further down the line. I commit to working with the committee on that, because I want to ensure that any measures that we introduce work, are suitable for what we want them to do and are agreed to by everyone.

Stewart Stevenson

But—

The Convener

I want to bring in Mark Ruskell.

Stewart Stevenson

Can I just deal with one point first?

The Convener

Okay.

Stewart Stevenson

I note that neither the consultation that I mentioned nor the bill makes any reference to an upper limit on what can be levied. The seven questions in the consultation do not include a question on that. Is it envisaged that you will set an upper limit to the FPNs, whatever level it might be? Of course, I may have missed something.

Mairi Gougeon

In relation to animal welfare, I think that the FPNs would be available for offences up to those that attract a six-month imprisonment or a level 5 fine, but I stand to be corrected by officials on that.

Andrew Voas

That is a provision in the bill. Fixed-penalty notices for animal welfare issues would not apply to offences that have a penalty of more than six months’ imprisonment or a level 5 fine, which is currently £5,000.

Grant McLarty

That limitation also exists for the animal health power.

Mark Ruskell (Mid Scotland and Fife) (Green)

I have a technical question about the fine income from fixed-penalty notices. The financial memorandum suggests that any increase in fine income will go to the Scottish Government but will in effect be deducted from the Scottish block grant. However, I am not sure whether that is the case. I have been working on a member’s bill that has a potential implication involving fixed-penalty notices, and the lawyers who worked on that bill suggested that any increase in fine income would be held in Scotland and would not be deducted from the block grant. That differs from the information in the financial memorandum. I just want to put that out there. Have you considered that issue? If not, please do.

Mairi Gougeon

That is what I have come to understand, but I will ask Andrew Voas to answer that.

Andrew Voas

There is a subtle difference between fines for criminal offences and income from fixed-penalty notices. The main point with regard to the bill is that the provisions on fixed-penalty notices will be developed in future and, as you have heard, will be subject to affirmative procedure. Therefore, the time to make decisions about where income from FPN regimes can go will be when we develop the specific FPN regimes. My understanding is in line with Mr Ruskell’s—it is that income from fixed-penalty notices that are served by enforcement authorities would not necessarily be counted in the same way as fines that are paid to court in relation to criminal offences. I ask Grant McLarty whether that is correct.

Grant McLarty

Yes. The detail would need to be developed, but I know of no legal barrier to that happening.

Mark Ruskell

Okay. I might seek clarification on that ahead of stage 2, because I think that the matter is dealt with differently in the financial memorandum. However, I realise that time is moving on.

Mairi Gougeon

In the meantime, I would be happy to look at that, get information, and feed it back to the committee.

Mark Ruskell

Okay. Thanks.

The Convener

I brought up the issue of a database of offenders that agencies could access. If people repeatedly got FPNs, would such information be available? If people had fixed-penalty notice after fixed-penalty notice or even had one in the past, could that information be shared or accessed by agencies that might go to their door for other reasons? If somebody had been involved in actions that resulted in a fixed-penalty notice, that could inform judgments on other issues. An individual might have a pattern of behaviour.

Mairi Gougeon

That is what I am thinking. Earlier, we talked about disqualification orders. I suppose that it would be helpful if we were able to see a pattern emerging with fixed-penalty notices and whether disqualification orders were in place. To be honest, I do not know what databases we currently have and whether all of that information is logged and stored. There would be resource implications for us if it were suggested that we should set up such a database, but I am open to looking at how that information would be stored. I am sure that we will come to those conversations as the regulations are introduced. I would be happy to discuss the issue again with the committee so that we can see whether there are opportunities for better information sharing.

Finlay Carson

The issue is important. Do you intend to have any proposals at stage 2 about a national database for fixed-penalty notices or disqualifications? It is important that we know that you will consider that at stage 2.

Mairi Gougeon

I am sorry; to clarify, I am not talking about us setting up or looking to establish a database. We would have to fully consider that, because there would be massive resource implications. I am talking about how we can share information better. I do not think that we need that in the primary legislation. It is about looking strategically at what databases already exist, how information is shared among enforcement agencies, and whether there are ways in which that information sharing can work better.

The Convener

A record of all those things will exist. It is simply a case of who has access to that record and whether information is being shared.

Finlay Carson

We have a lesson to learn from the Control of Dogs (Scotland) Act 2010 and banning orders or restrictions on dogs for local authorities. If owners moved between local authority areas, there was no recognition that they had a ban. The current approach is failing. Ensuring that we stop people with disqualifications or whatever owning dogs is important, and it is very clear—other committees have heard evidence on this—that one of the failures of past acts has been that they have not included a national database. There have been general data protection regulation issues and so on. It is really important that you address that in the bill, because the voluntary process is obviously not working.

Mairi Gougeon

I take that point and understand the concerns. That is why we will look at the issue. However, there would be massive resource implications for us if we were looking to set up a national database to encompass that. We do not intend to introduce that in the bill. If there are databases already in operation, we need to ensure that they operate as effectively as they can in relation to the work of enforcement agencies. That is what we will look at.

The Convener

Okay. I want to move on to wildlife crime, which a number of members want to ask about. When do you expect the Werritty report to be published, and when will you release the animal wildlife crime report for this year?

Mairi Gougeon

I think that the First Minister said during a First Minister’s question time last month that the Werritty report would be published by the end of the year. That is still the timescale that we are looking to.

I am sorry, but what was your second question?

The Convener

My second question was about the animal wildlife crime figures.

Mairi Gougeon

That report will be available by the end of the year.

Mark Ruskell

That response is very welcome.

Why do wildlife crimes in relation to breeding and resting places not attract the maximum sentence? The committee has heard horrific examples. For example, a property developer’s destruction of a badger sett led to a fine of £800—the price of a door, in effect—and the developer went on to sell a house for £350,000. Is there scope to increase the maximum penalty for people who wilfully destroy breeding sites?

Mairi Gougeon

It would be best if I tried to explain the rationale behind the proposals as they are. There are more than 300 wildlife offences, so there was an attempt to harmonise the approach. There are penalties for the worst offences, that is, the killing or harming of protected species, but if the committee makes recommendations about other offences and thinks that our approach should be changed, based on the evidence that you have heard, we will be open to having that discussion.

Mark Ruskell

Okay. A recommendation of the Poustie review was that there should be a requirement in legislation to consider impact statements, particularly in the context of a species’ conservation status. For example, if a habitat or an animal is destroyed and there is a big impact on the population, in ecological terms, there should be an impact statement. What is your view on that? If someone kills the last two white-tailed eagles in a particular part of Scotland, the impact on the breeding population is devastating.

Mairi Gougeon

I absolutely agree. We have not put such an approach on a statutory footing or included it in the bill because, from what we hear from our stakeholders—I think from both sides—the system that is currently in place works well and impact statements are used when it is felt that they are needed. No stakeholder has approached us to say that impact statements are not being used when they should be used. We understand from the Crown Office and other stakeholders that they are used when they are needed. We keep the issue under review, but, as far as we are aware, people feel that the information that should be put forward is presented.

Mark Ruskell

Why, then, did Poustie come to a different conclusion and recommend that consideration of an impact statement should be a legislative requirement?

Mairi Gougeon

I do not know whether the system operated differently prior to that recommendation being made. Leia Fitzgerald might have more information about whether that spurred on any changes. As I said, we have heard nothing from our stakeholders that indicates that the system is not working.

Leia Fitzgerald (Scottish Government)

I think that, when Poustie made his recommendations, impact statements were not used as widely as they are now. We revisited the issue with stakeholders recently, and they told us that the approach that is now in place is working well. As the minister said, we will continue to keep the matter under review.

Mark Ruskell

Last week, the committee heard about the use of other sanctions. In particular, we heard about the effectiveness—or otherwise—of general licences. It was concerning to hear stakeholders say that an estate that loses its general licence will simply apply for individual licences, and nothing will change. What are your views on other sanctions being deployed in relation to wildlife crime? Are such sanctions having any impact at all?

Mairi Gougeon

It is important that other deterrents are available. I am aware that, in evidence last week, people said that some options are not as effective as they could be. We are actively considering the need for an additional level of enforcement, which would not require referral to the procurator fiscal or involvement of the Scottish courts but would still provide a penalty that would act as a deterrent. We will be happy to consider the evidence and consider whether measures are as effective as they can be.

Mark Ruskell

What about the withdrawal of a firearms certificate, for example? Is that something that you would be interested in discussing with the Westminster Government?

10:30  



Mairi Gougeon

Absolutely. I know that there were two recommendations around that in the Poustie review, so we will happily engage in discussions with the UK Government. I believe that the matter falls under the justice portfolio, so I would also be happy to raise it with justice colleagues and see how we can get some movement on the recommendations with the UK Government.

Rachael Hamilton

I will go back to the categorisation of wildlife offences and the different tiers of the penalty system. We heard evidence that perhaps possession of illegal pesticides should be categorised as a tier 1 offence, because they are currently illegal anyway. Do you have any comments on that point and do you have any plans to have an amnesty on illegal pesticides prior to the bill being passed? People should not possess illegal pesticides anyway, so using them in connection with animal crimes should attract the highest and severest category of penalty.

Mairi Gougeon

That has been the feeling behind that issue. As you said, possession of such pesticides is already illegal and there are offences in place to deal with that individual issue separately. Using such pesticides as part of another offence would attract the higher penalty. As they are already illegal and there are offences attached to them, using them in relation to any other offences could well attract severe penalties.

In relation to your amnesty point, I would be happy to consider looking at the matter.

Leia Fitzgerald

Just to clarify, there was a previous amnesty, which was quite successful and resulted in a lot of pesticides being handed in. We could speak to stakeholders about whether that is something that could be done again. We would hope that we got all of what we needed after the last amnesty, but we can look at the matter.

Mairi Gougeon

I will happily get back to the committee and let you know how we get on with that.

Rachael Hamilton

I completely agree with the points that you made. Having an awareness-raising campaign alongside the bill, which is obviously attracting a lot of attention, could be very effective in that regard.

Mairi Gougeon

Yes.

Claudia Beamish

I will go back to the general licence situation that Mark Ruskell raised. As you and the lawyers will know, Scottish Natural Heritage withdrew a general licence from Leadhills estate. That is a civil issue, but I am perplexed about it so I am seeking clarification of the legal position. The estate has appealed, so the licence has been reinstated. Why is that? As I understand it, under criminal law, reinstatement would not happen during an appeal. I would like that clarified, as it is relevant to the bill.

Mairi Gougeon

I will pass the question on the legal point on to Hazel Reilly.

Hazel Reilly (Scottish Government)

It is quite a technical area so, to get it right, we would be happy to write to the committee.

Claudia Beamish

That would be helpful. Constituents who have approached me are concerned that the licence has been reinstated while an appeal is on-going. I do not understand why that is, so a response would be most helpful, thank you.

The Convener

We can have the response sent to us.

Claudia Beamish

I was very pleased and relieved that, in the previous parliamentary session, vicarious liability was introduced for wildlife crime. As you will have seen, the committee has heard quite a lot of evidence on the matter and, outside of the committee, I have received correspondence in my role as a South Scotland member of the Scottish Parliament—as have other members, I am sure. Are you satisfied with the uptake to date of vicarious liability with respect to wildlife crime and have you looked at the potential of expanding it to further wildlife offences in the context of the bill?

Mairi Gougeon

We had not considered opening up the bill to other offences, but I look forward to the committee’s report and to seeing what evidence you have taken and whether there are any particular views that the bill should be expanded to include any other offences. I know that there is a lot of concern about the matter and that, in its evidence, RSPB Scotland said that the impression was that the initial deterrent effect of vicarious liability had been lost.

There is a high evidence threshold that has to be met for vicarious liability. We cannot change that as part of this legislation. It is an important tool that we have available, but it will always be quite a hard thing to prove, given the requirements that must be met for someone to be prosecuted using that piece of legislation.

Claudia Beamish

I asked the bill team this question, but I seek final clarification from you. Is it the case that, with regard to vicarious liability proceedings, there need only be evidence of an alleged crime on a landowner’s or company’s land, and that the actual perpetrator of the crime does not have to have been arrested? That is an important consideration, because the crimes often take place in remote and rural areas where it is difficult to know exactly who might have perpetrated any given crime—we will come to the issues around evidence gathering later.

Mairi Gougeon

I am prepared to be corrected by officials but, as I understand it, the perpetrator of the alleged offence does not need to be prosecuted in order for a charge of vicarious liability to be pursued, but they have to be known. I think that that is one of the tests, but I will double check whether that is correct.

Hazel Reilly

That is correct. In order to bring a charge of vicarious liability, it must be established that an offence has been committed, who it was committed by and the relationship between that person and the person who is vicariously liable. However, a prosecution does not need to be taken against the principal offender.

Claudia Beamish

My understanding is different, so I would really appreciate clarification. I may have misunderstood the issue, and I apologise if I have, but I understood that there had to be evidence of a crime on a landowner’s land, not that the person who committed the crime had to be known.

Hazel Reilly

The relationship between the offender and the person who is vicariously liable has to be proved, so there must be sufficient evidence about who has committed the offence. However, a prosecution does not have to be taken against that person.

Claudia Beamish

So, in legal terms, evidence of a crime having taken place on a person’s or company’s land is not sufficient for a vicarious liability prosecution to proceed.

Hazel Reilly

That is correct, but we can clarify that in writing, just to be absolutely clear.

Claudia Beamish

That is helpful.

I have a further question on vicarious liability. Should nature conservation or welfare organisations have a right to request a review of any decision by the Crown Office not to bring a prosecution against a landowner in relation to a wildlife crime, in a similar way to a victim’s right to review? Transparency in these issues is extremely important, and that might be one way in which the public and groups that have concerns about animal welfare could be reassured.

Mairi Gougeon

I completely understand that, and I know that concerns have been raised about people not understanding how or why certain decisions have been taken.

As I understand it—again, I am prepared to be corrected—under current legislation there are some ways in which an organisation would be able to request a review if it was the victim of the crime in question. For example, if an incident occurred on RSPB land, the RSPB would be the victim of the crime, and it could ask for a review.

Hazel Reilly

That is correct. Under the policy, businesses, companies and other organisations that are victims of crime are entitled to ask for a review of decisions.

Claudia Beamish

That is helpful.

The Convener

Mark Russell has questions on enforcement.

Mark Ruskell

One of the strands of the Government’s work in this area has been the trialling of special constables in the Cairngorms. We do not have a full evaluation of that yet, but the early indications are that that pilot did not result in any detection of wildlife crime or enforcement of penalties. Will there be a full evaluation of that, and will it come during the passage of the bill, so that we can reflect on whether that approach has been of use?

Mairi Gougeon

A full evaluation of that pilot will be available early in the new year, so members will be able to consider it while the bill is being considered. Obviously, I will write to the committee and make you aware of that information when it is published.

Mark Ruskell

Do you have a view on the effectiveness or otherwise of the pilot? Will it be rolled out across Scotland, or will you draw a line under it?

Mairi Gougeon

Again, I have not seen the full evaluation. We will have to see what comes out of that and how effective it has been. There have not been any prosecutions as a result of the trial, but we need to be open to looking at it and saying, “Okay, if this has not been as effective as we hoped, what else do we need to do and what other means can we use to improve the situation?” As Claudia Beamish said, such crimes, by the very nature of where they take place, are hard to detect and we need to do what we can to improve detection rates and tackle the problem effectively.

Finlay Carson

We heard evidence that wildlife crime detection needs more resources. It is all very well to increase penalties, but there is little point in doing that if there is no increase in the chance that criminals will be caught. What plans do you have to further resource the detection of wildlife crime?

Mairi Gougeon

There are a few other things that we can look at. Some interesting suggestions came out of last week’s evidence session, when Detective Chief Superintendent Cunningham made some valuable points and suggestions that we need to consider. He talked about better intelligence sharing and potentially setting up a short-life working group to see how organisations can work together better. It is about trying to pursue all the options and attack this from all angles. I would like to think that, from one end, we have a strong deterrent effect as a result of the increased penalties that we are introducing, but it is also about agencies working together better and sharing that valuable intelligence. We are happy to look at any recommendations that the committee has in relation to that, as well as what has come out in evidence.

Finlay Carson

In Dumfries and Galloway we have an issue with poaching, but the response from Police Scotland is that it has priorities elsewhere, and incidents are often not investigated in a timely manner. What reassurance can you give people in rural areas that Police Scotland will be able to address an increase in reporting, or whatever?

Mairi Gougeon

The point about what staff it has, and where, is for Police Scotland and it is not for us to direct it. I will say, however, that wildlife crime is a huge priority for us: that is why we are introducing these proposals, why we are making a full suite of options available to all enforcement agencies, and why we are looking at how we can work better and what more we can do to crack down on these horrendous crimes.

Claudia Beamish

One of the tools that can be used is covert video surveillance. We keep highlighting the remoteness of areas, but that is very important in this context. As you will know, minister, stakeholders generally welcome the increase in maximum penalties, for a range of reasons, but partly because that increase will enable police to apply to use covert video surveillance more ably and effectively. Obviously, we recognise the issue around the infringement of privacy rights that was highlighted earlier. Do you have any comment on the possible use of that tool? Could you also comment on the RSPB’s position that non-statutory bodies should be able to use cameras if they are not infringing privacy rights? As you will know, there is a history to that.

Mairi Gougeon

Yes, I am aware of that. That is one of the really important things about what we are proposing: we now recognise that wildlife crimes are defined as serious, and we are increasing the penalties. That then enables intrusive surveillance to be used. Detective Chief Superintendent Cunningham gave evidence that the police already have the power for direct surveillance, but that the increased power for intrusive surveillance will be important.

We are not able to affect the admissibility of evidence. That is entirely up to the courts to decide and will always remain within their remit, so there is not much that we can do, or would want to do, to that effect. However, what we are proposing would have a positive impact on the type of surveillance that can currently be used.

10:45  



The Convener

We will move on to questions on Scottish SPCA powers in relation to wildlife crime.

Mark Ruskell

Minister, has the SSPCA approached you to request more powers in relation to wildlife crime?

Mairi Gougeon

It has done so in recent weeks.

Mark Ruskell

What is your view on that?

Mairi Gougeon

I am open to considering that and having further discussion with the SSPCA. Nothing about that proposal features in the bill or was even considered as part of the bill, because in all the time that I have been in post and had meetings with the SSPCA, it has not been a live issue. It was not something that we discussed until the last couple of weeks. I do not rule anything out and will happily consider any options.

However, I come back to some of the evidence that the committee heard last week. There are some things that we can be doing in the meantime, such as intelligence sharing and looking at some of the other suggestions for getting enforcement agencies to work better together. We have to exhaust all those options.

Mark Ruskell

Do you mean that you want to exhaust them first or that you will consider extending the SSPCA’s powers alongside that?

You mentioned the comments that DCS Cunningham made last week. I noticed that the police comments in relation to the extension of the SSPCA’s powers had a different tone last week, in comparison to previous evidence sessions, and there now seems to be a willingness to consider such an extension. However, the clock is ticking on the bill and if we were to do anything in relation to SSPCA powers, this bill is the place to do it.

Mairi Gougeon

We are looking at what we can do in the meantime, but I see that consideration as being longer term, rather than something that we could do under the bill. One of the academics that the committee heard from—perhaps Mike Radford—talked about the SSPCA possibly becoming a public body. If that were to happen, the SSPCA would have to have substantial discussion in the organisation to see whether that was the road that it wanted to go down. It would not be fair to try to cram that into the bill in the timescale that we are planning and I would hate to see us delay introducing the provisions that we are already proposing.

I have committed to examining that proposal, but we need the time and space to fully evaluate that option. I would not want that to be constrained by the timelines of the bill.

Mark Ruskell

Is there an issue in relation to the SSPCA’s current powers under the 2006 act?

Mairi Gougeon

Again, I could not bottom out all the issues involved today because we have only just started that conversation. There could be many obstacles and we need the time to tease out all that information and get a chance to fully discuss the issue.

Mark Ruskell

Are there certain extension powers that could be granted under the bill that would be relatively uncontroversial? For example, we heard evidence of situations where an SSPCA inspector goes and visits a trap that contains a live animal that is fighting for its life. Tackling that is within the powers of the SSPCA inspectors under the Animal Health and Welfare (Scotland) Act 2006. However, if there is a trap with a dead animal next to the first trap, it is not within the powers of the SSPCA to protect that evidence or investigate any illegality in relation to that, because the animal is dead, rather than alive. Does that not strike you as odd and absurd? Is there not a way to deal with that in the bill?

Mairi Gougeon

I completely understand the point and where you are coming from. However, it is not as straightforward as adding a power that would allow the SSPCA to do that—we would have to look at the implications of that. That is what I mean when I say that we need the time and space to properly tease out all the information and assess the ramifications of increasing those powers.

It seems as though it would be a straightforward change or addition to the bill, but we really need to consider fully what all the ramifications might be.

The Convener

You are having the conversation now.

Finlay Carson

Are you ruling out any additional powers for the SSPCA at stage 2 of the bill?

Mairi Gougeon

It is not something that we are considering as part of the bill.

Finlay Carson

Okay. Do you agree that the bill should include appropriate safeguarding to ensure that we have stringent and strong policies and procedures when we are considering rehoming, enforcement and the additional penalties introduced by the bill? Are you satisfied that the safeguarding is adequate?

Mairi Gougeon

All the relevant powers and the issues that you raise are covered by what we are proposing. The bill is quite comprehensive in relation to some of the safeguards, including in relation to rehoming, the right of appeal and the right of appeal for compensation. I hope that the committee will agree that we have struck the right balance. Rehoming is particularly important and we have switched the onus so that it now falls on the owner. That will massively benefit the rehoming agencies while ensuring that owners still have the proper rights throughout the process. We have been comprehensive in our approach to that.

The Convener

I thank members for their questions and I thank the minister and her officials for giving us their time.

At our next meeting on 14 January 2020, the committee expects to take evidence on environmental governance issues.

10:51 Meeting continued in private until 12:40.  



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29 October 2019

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3 December 2019

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10 December 2019

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17 December 2019

Environment, Climate Change and Land Reform Committee Committee's Stage 1 report 

What is secondary legislation?

Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:

  • bring a section or sections of a law that’s already been passed, into force
  • give details of how a law will be applied
  • make changes to the law without a new Act having to be passed

An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).

Debate on the Bill

A debate for MSPs to discuss what the Bill aims to do and how it'll do it.

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Stage 1 debate on the Bill transcript

The Presiding Officer (Ken Macintosh)

The next item of business is a stage 1 debate on motion S5M-21200, in the name of Mairi Gougeon, on the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill.

14:51  



The Minister for Rural Affairs and the Natural Environment (Mairi Gougeon)

I am delighted to present the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill to the chamber and to introduce these important proposals for the stage 1 parliamentary debate.

If the bill is passed, it will modernise and strengthen the implementation of existing legislation impacting on animal welfare, assisting enforcement authorities to ensure that Scotland’s domestic animals and wildlife benefit from the best possible protection.

Bearing in mind the increasingly busy parliamentary schedule, the bill is tightly focused to deliver the changes that are most sought after by front-line enforcement staff and that require amendments to existing primary legislation. The aim is that the changes will come into force this year.

The bill addresses specific priorities, many of which have been highlighted during discussions as part of the close working relationship between officials and key stakeholders—particularly those with practical experience of working with the existing legislation, who recognise that the proposals will make significant improvements to the protection of our animals. Those include Police Scotland, the Scottish SPCA, local authorities and the Animal and Plant Health Agency. All the priorities in the bill received strong support from respondents to the Scottish Government’s consultation.

In short, the bill increases the maximum available penalties for animal cruelty and wildlife crime and removes the six months’ time bar for many offences; it introduces a new power to put in place fixed-penalty notice regimes; it improves the procedures for rehoming and makes other arrangements for animals that have been taken into possession by enforcement authorities to protect their welfare; and it improves protections for police dogs and horses by introducing Finn’s law in Scotland, recognising their indispensable role in our society.

Thankfully, the most extreme animal cruelty and animal fighting offences in Scotland, which result in a custodial sentence, are rare. There have been 41 custodial sentences in the past 10 years, and there have been only three custodial sentences longer than 300 days in that time. However, although the most extreme cases are rare, as a society and as a Government, we need to send the strong message that any animal cruelty or wildlife crime shall not be tolerated. I hope that the publicity around the bill will start the necessary behaviour changes to banish that cruelty from our society.

These often traumatic and sadistic offences rightly attract considerable public concern. We are also concerned about links to serious organised crime in some other cases, particularly those to do with the illegal trade in puppies.

We consider—and others agree—that the current maximum penalties are simply not high enough to allow the courts to deal appropriately with such cases.

The bill will also standardise wildlife crime penalties and bring the penalties for 22 of the most serious offences, which involve the illegal killing or injuring of wild birds and animals, into line with the new maximum penalties for animal welfare offences. That recognises that wild animals should be given equivalent protection to that which is given to domestic and farm animals from the worst types of deliberate harm.

Emma Harper (South Scotland) (SNP)

I welcome the bill and the Scottish Government’s action to give enhanced protection from harm to animals and wildlife.

The minister mentioned farm animals. Does she share my concern that incidents of livestock worrying are on the increase in Scotland? She will be aware of my proposed protection of livestock (Scotland) bill. Will she agree to meet me to discuss the bill? We are almost at stage 1.

Mairi Gougeon

I thank Emma Harper for her intervention and congratulate her on all the work that she has done on tackling that important issue. I am happy to commit to meeting her to discuss the matter further. It is a vital issue, and it is important that we work together to make sure that we are successful in addressing it.

The penalties for 36 other offences, including those that deal with the disturbance of wild animals and their habitats, will be standardised and increased in line with the recommendations of the Poustie report.

An issue that is related to the higher maximum penalties is the availability of trial by indictment, which will directly benefit enforcement agencies such as Police Scotland, the Scottish SPCA and local authorities, as well as the Crown Office and Procurator Fiscal Service, by removing the current statutory six-month time limit for commencing criminal proceedings. That will give authorities additional time to gather all the appropriate evidence and to draft complete and considered reports on increasingly complicated cases that often involve serious organised crime elements.

One of the aims of the bill is to emphasise that animal cruelty and wildlife crime will not be tolerated in Scotland, so it will provide courts with the flexibility that is needed to impose sentences that are appropriate for a wide range of offending behaviour. The new maximum penalties will allow courts the flexibility to issue the most appropriate sentence for the worst cases, while the introduction of a new power to develop new fixed-penalty notices will provide an additional enforcement tool for more technical offences.

The bill will also introduce overarching powers that will allow the future introduction of fixed-penalty notice regimes through regulations for animal health and welfare and wildlife crime offences, which will enable bespoke FPN regimes to be designed to deal with a wide range of offences in a proportionate and timely manner. For example, FPNs could be used to deal more effectively with breaches of movement restrictions during an animal disease outbreak or failure to comply with movement and traceability regulations. Although those technical breaches might not impact negatively on individual animals, they can be detrimental to the health and welfare of wider animal populations. It is important to deal with all breaches of our animal regulations effectively in order to improve compliance overall, and I hope that the proposed focused changes to the penalty regime will lead to behaviour change across our communities, reflecting the public concern for animals in Scotland.

The bill also proposes a new and innovative approach to dealing with animals that have been taken into possession in emergency situations to protect their welfare. The new process will allow enforcement authorities to make appropriate permanent arrangements for such animals without the need to apply for a court order. That streamlined process, which is independent of any potential prosecution, will result in significant savings in staff time and resources for all parties, including the courts, and it should speed up the process of resolving often traumatic animal welfare situations.

We know that the neglect and subsequent suffering of animals is often a symptom of another problem, such as financial difficulties, bereavement, mental health issues or other illness. Enforcement authorities are acutely aware of that, and there are already processes in place for referrals to other agencies such as social work, where that is required. The new powers have been specifically designed to balance the property rights of the individual with the need to protect the welfare of animals. The bill recognises that, although animals have a legal status as someone’s property and the owner, too, might be suffering, those animals are sentient beings whose welfare needs must be met.

As the new robust and streamlined process will be implemented by enforcement authorities without any need to go to court, the necessary safeguards to protect human rights have been provided for at the same time as a focus on the welfare of the animals.

I am proud that the bill introduces Finn’s law in Scotland. I have met Finn and his handler, Dave, as well as colleagues in Police Scotland, and I have heard at first hand about the importance of the role of police dogs and horses. I have been touched by Police Scotland’s support for the proposals, which are, along with other elements of the bill, simply the right thing to do. They also keep pace with action that is being taken by other United Kingdom Administrations.

The bill will provide police animals with the same level of protection as other animals that are not routinely used in situations in which attackers could claim to have been acting to defend themselves. The provision will exist alongside the increase in the maximum penalties that are available for crimes against all animals, meaning that all of Scotland’s animals, be they guide dogs, police dogs or police horses, will benefit equally from the bill.

The bill is being delivered alongside a number of other initiatives to improve the welfare of our animals and wildlife that do not require changes to primary legislation. In relation to animal welfare, they include the creation of a modern and flexible licensing framework for pet breeding, animal sanctuaries, rehoming activities and pet sales—proposals that we will bring forward later this year.

Mark Ruskell (Mid Scotland and Fife) (Green)

Will the Government introduce regulations on performance animals in the current session of Parliament?

Mairi Gougeon

I will look at that specific issue and will get back to the member on it.

We also intend the new regulations to give effect to Lucy’s law—a measure to prevent the third-party sale of cats and dogs under six months old as pets—as well as addressing the proposals that Jeremy Balfour has made on modernising the licensing of pet shop sales. The overall aim is to regulate to protect animal welfare in a way that is not unduly burdensome for those who are doing a good job, while being effective in dealing with cases in which welfare is not being sufficiently protected.

Officials are also working to introduce compulsory closed circuit television in abattoirs, and they are undertaking reviews of the use of electronic training collars for dogs as well as gathering evidence on the incidence of dog attacks on livestock. We look forward to Emma Harper’s member’s bill on that subject being introduced in the near future.

On the illegal trade in puppies, we delivered two very successful public awareness campaigns in 2018 and 2019 to encourage responsible dog ownership and help to alert pet buyers to the dangers of buying from illegal puppy dealers posing as home breeders.

Regarding wildlife, we are working on responses to the recommendations that were made by both the grouse moor review group and the deer management review group. We will publish a strategic approach to wildlife management that puts animal welfare at the centre while protecting public health and economic and conservation considerations.

We have established Scotland’s first animal welfare commission, which comprises 12 experts from different disciplines in the field of animal welfare and is chaired by Professor Cathy Dwyer of Scotland’s Rural College and the University of Edinburgh. The commission, which will have its first meeting this month, will provide an independent expert forum to consider how the welfare needs of sentient animals are being met, examine the possible legislative and non-legislative routes to further protect their welfare and identify any research that is required for an evidence base for future policy development. I am confident that that new advisory body will have a real impact in prioritising the action that is required to tackle the wide range of issues regarding all sentient animals in Scotland.

I hope that members appreciate that that package of complementary measures, together with the provisions in the bill, will address a wide range of stakeholder concerns about Scotland’s animals.

There is widespread and strong support for the proposals in the bill, particularly among those with practical involvement in the current legislation, including veterinary staff and the police. I am honoured to be responsible for introducing the refinements that are proposed in the bill, which will make an immediate impact in assisting with enforcement and further protect Scotland’s animals.

I look forward to this afternoon’s debate and to working with parliamentary colleagues to ensure that the important improvements in the bill can be introduced as quickly as possible, without unnecessary delay.

I am proud to move,

That the Parliament agrees to the general principles of the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill.

The Presiding Officer

I invite Gillian Martin to speak on behalf of the Environment, Climate Change and Land Reform Committee.

15:03  



Gillian Martin (Aberdeenshire East) (SNP)

On behalf of my colleagues on the Environment, Climate Change and Land Reform Committee, I open by saying that we welcome the bill and support its aim to increase the penalties for crimes of animal harm. We took evidence from many experienced and expert stakeholders, and we published our report in February. I thank the minister for her recent letter to the committee, and for early notice of the matters on which she intends to lodge amendments at stage 2.

The committee particularly welcomes the establishment of the animal welfare commission. We were encouraged to see its very experienced members being announced recently, and we look forward to working with them.

I turn to the bill and the committee’s consideration of it. It has been said that

“The greatness of a nation and its moral progress can be judged by the way its animals are treated.”

I certainly agree with that sentiment, and I know that my committee colleagues feel as strongly as I do about it. Disregarding the health and welfare of animals can make it easier for us to disregard the health and welfare of our fellow humans. It can limit our capacity for empathy, and there are often links between animal abuse and other crimes.

It is right that the Government is seeking to increase penalties in line with the grave nature of many of the crimes that are committed against animals, and to give the courts greater flexibility to penalise appropriately. We welcome the proposals to increase the maximum sentences for the most serious offences, and to introduce fixed penalty notices that would allow a sanction short of prosecution.

Given this nation’s affection for animals, it is surprising that we currently have among the lowest penalties in Europe for animal welfare and cruelty offences: a sentence of 12 months for the worst act of animal cruelty compares badly with sentences of five years for crimes such as fly tipping or theft. Many of us here will have seen distressing animal cruelty crimes that warrant much harsher penalties and the courts having much greater flexibility to give sentences that are more in line with the amount of serious harm that has been done to animals. That view is reflected in public opinion.

As I said, animal cruelty is often a flag for other offences; there is a substantial body of evidence that says that animal cruelty offenders also commit other crimes, including domestic abuse and other violent offences.

Much animal cruelty is about individuals or groups wanting to make money from the sale of animals. Stakeholders expressed concerns about organised crime including illegal puppy farming and dog fighting, in which offenders are often driven by profit and for which current penalties do not provide a sufficient deterrent.

It is also important to say that the committee heard that not all cases of animal suffering are caused by deliberate cruelty. Neglect of animals can happen for various reasons, including an owner being unable to cope because of physical or mental illness. We welcome the flexibility in relation to fixed penalty notices and appeals procedures to reflect that, so that we do not unnecessarily criminalise people who are in complex situations that might require the involvement of social services and animal welfare services.

The committee understands that there are tiers of penalties for wildlife crimes, which brings me on to one of our key recommendations, which we believe will strengthen the bill and make an even bigger impact on wild animal welfare. We heard evidence about the effects of destruction of habitats. Destroying an animal’s habitat can be as fatal as directly harming or killing an animal. For example, the destruction of badger setts could lead to the destruction of a colony and the deaths of some or all of the animals, particularly during breeding. We believe that wilful destruction of a habitat is as much abuse of an animal as direct abuse is.

The committee is therefore recommending that the Scottish Government reconsider its approach in order to ensure that enhanced protections are extended to resting places and breeding sites, so that sentencing can reflect crimes having equivalent outcomes in terms of harm to the animal. We believe that such an extension will act as a deterrent to the wilful destruction of animal habitats and will strengthen the bill.

I note the minister’s recent assurances in her letter that the penalties in the bill that apply to different types of offences are coherent, proportionate and appropriate, and that they fit the circumstances of each individual case. I invite the minister, in summing up the debate, to reflect further on the committee’s recommendation about habitats. We took strong evidence on that from a range of expert stakeholders.

I want to talk about the proposal for regulations to be made to create a fixed-penalty notice regime. The committee has already flagged up that it is seeking assurances that FPNs will not be used when the severity of the crime is such that prosecution would be the more appropriate action, and we welcome the update from the Scottish Government on the timing of the outcomes of the consultation on FPNs for animal health offences. I note that the minister will seek to amend the bill at stage 2 to allow fixed-penalty notice regulations, and we look forward to receiving more information about the nature and detail of those ahead of stage 2.

I also note the minister’s intention to consider whether it is appropriate to lodge a stage 2 amendment to introduce a power in the bill for Scottish ministers to make provision in future regulations for use of fixed-penalty notice regimes for certain wildlife offences, and we will consider that if we are presented with such an amendment.

The committee made a strong recommendation on impact statements in our report. When we were considering wildlife crime, we heard from experts that impact statements are very helpful for coming to conclusions on the penalty that is required. In the report, we mention our support for the recommendation of the Poustie review to put impact statements on a legislative footing. Stakeholders told the committee that sheriffs and procurators fiscal having impact statements available to them before sentencing is extremely helpful because they provide background information. The committee was convinced that that was an important point and has therefore recommended that it be required by law that impact statements be made available to the court for offences of this nature.

We note the minister’s recent comment that the current system is “working well”. However, the committee has asked

“the Scottish Government why it considers putting impact statements on a legislative footing, as recommended by Professor Poustie, is unnecessary.”

Perhaps the minister can answer that question in her closing statement.

I will move on to what the committee believes to be one of the most significant procedural changes that is presented by the bill. The bill proposes a power to rehome or sell off animals without first obtaining a court order. The committee heard compelling evidence to support the introduction of such a power and is fully supportive of the change. The move will protect the welfare of affected animals by allowing domestic animals to be rehomed quickly, rather than being in limbo in kennels, and by allowing livestock to be quickly sold to new owners. The proposal also means that animal charities or local authorities will not have to provide resources for and bear the enormous cost of caring for animals long term. The committee is supportive of that change, which we consider to be an important step forward in animal welfare.

We also heard about the need to provide additional protection for service animals by way of a Scottish Finn’s law. Thankfully, there have been very few attacks on service animals in Scotland, but it is only right that animals that work to keep us safe should be given the fullest possible protection in return, so the committee fully supports the additional protections in the bill.

I will end by discussing the importance of information sharing. The committee heard that there is no centralised registration system for current penalties such as disqualification orders. We believe that there is a need for relevant agencies to share information on criminal animal cruelty. The committee welcomes the recent confirmation from the minister that Police Scotland is currently discussing a joint working protocol with the Scottish Society for the Prevention of Cruelty to Animals, and would welcome further information on that collaboration.

I thank the many expert stakeholders who gave such compelling and important evidence, which we hope will strengthen an already very strong bill that will act as a deterrent to people who wish to cause harm to animals. On behalf of all the committee’s members, I thank the committee clerks for all their hard work and assistance.

The committee recognises that the bill is not the end of the work that we have to do to protect Scotland’s animals and its wildlife. However, it is a very positive step, and some elements of it have been described as “groundbreaking”. The committee is therefore pleased to support the general principles of the bill.

15:14  



Finlay Carson (Galloway and West Dumfries) (Con)

I am pleased to lead the debate for the Scottish Conservatives, given that I am a member of the Environment, Climate Change and Land Reform Committee, which is overseeing the bill.

The Scottish Conservatives are supportive of the general principles of the bill. Indeed, three years ago, I had preliminary talks with officials about whether there was an opportunity to address many of the shortcomings that the bill will now address, including: increasing penalties for animal and wildlife crime; introducing new fixed-penalty notices; extending the time allowed for prosecution; giving more powers to authorities when animals are taken into possession to alleviate their suffering; and the very welcome move of increasing the protection of service animals through our own Scottish Finn’s law, which my colleague Liam Kerr has championed.

Liam Kerr (North East Scotland) (Con)

As the member said, that is an excellent provision, which follows a huge campaign led by PC Wardell and so many others, with more than 56,000 signatures on my petition. However, this is only stage 1 of the bill. Principle and execution are not the same thing and it is crucial that the principles of Finn’s law are fully enshrined in statute through precise amendments.

Therefore, does the member agree that service animals must be given proper protection, to reflect the respect that we have for them, that attackers must be punished appropriately and that we must all work at stage 2 to make sure that the execution matches the principle?

Finlay Carson

I thank the member for that intervention. I agree, and we look forward to stage 2, when we will make sure that the bill fulfils everybody’s expectations of protecting service dogs.

We must also make it clear that, rightly or wrongly, the bill does not cover many outstanding issues: for example, issues related to the recent Bonomy review, dog control and the licensing of animal breeding, pet sales and animal sanctuaries. We should have undertaken a review of the entire Animal Health and Welfare (Scotland) Act 2006 to include some of those issues, but we are where we are.

Although the bill strengthens sentencing for animal cruelty offences and tackles the subject of animal welfare, I refer members to the contribution that I made at the Public Audit and Post-legislative Scrutiny Committee at this time last year, on the review of the Control of Dogs (Scotland) Act 2010, which was introduced a decade ago. I put forward the case that a host of members’ bills relate to the subject of animals and there is still the potential for all those separate pieces of legislation to become complicated, particularly in how they interact. Rather than there being a lengthy process for multiple members’ bills, the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill could have gone further and been an overarching piece of legislation on animal cruelty.

It is 14 years since this Parliament passed the previous major piece of legislation on animal welfare and cruelty in 2006. This bill is long overdue, and we need to introduce new penalties for those who continue to cause pain and suffering to animals and wildlife. That is backed up by the fact that 99.4 per cent of respondents to the consultation agreed with the proposals to introduce tougher sentencing.

However, it is important to note that the legislation before us does not create any new offences. The overarching positive of the new legislation is that it allows greater flexibility in punishing offenders, whether that is through lengthier jail sentences or unlimited fines. The fact that the current legislation allows for maximum punishments of only 12 months has done little to deter or adequately punish the offenders who carry out these crimes.

Battersea Dog & Cats Home’s welcome briefing ahead of today’s debate highlights that, between 2011 and 2016, 522 people were convicted of animal cruelty offences, yet only 45 per cent of those convicted received sentences of more than six months.

The committee raised the issue of sentencing guidelines for wildlife crime. Battersea and the Law Society of Scotland point out that, following the passing of this legislation, it would be helpful if the sentencing guidelines were also updated. That would strengthen our courts systems and enable them to have a uniform approach when it comes to dealing with animal welfare and wildlife crimes.

The Law Society also pointed out that sentencing for wildlife crimes can be different from other crimes when it comes to assessing culpability, harm and other public policy guidelines; again, that strengthens the need to update sentencing guidelines. We need clarity on the way that certain wildlife crimes are viewed. As Gillian Martin mentioned, the likes of destroying a single badger sett needs to be considered in light of the long-term impact on the colony.

The independent Scottish Sentencing Council—and rightly, not politicians—has the responsibility for developing sentencing guidelines but, during the progression of the bill, we welcome further discussions with the Scottish Government on what would be the best way to update those guidelines.

The Scottish Conservatives are also supportive of the principle of fixed-penalty notices, which are outlined in the bill as a further deterrent. As the ECCLR Committee noted, that would give authorities a greater degree of flexibility in determining proportionate penalties. However, those notices should be delivered only for minor and technical offences where no harm has come to animals. I would welcome a commitment from the minister to bring more clarity around the notices and details of the stage 2 amendments that she intends to introduce.

The Scottish Government’s consultation on fixed-penalty notices received a positive response; 61.4 per cent of respondents agreed that they should be brought in, and the 32 local authorities were in unanimous agreement. However, we need to ensure that people face the consequences of their criminality, and I would like the Government to reflect on how many of these notices it estimates will be served and how many will, potentially, go unpaid.

On notices, I would like to raise concerns about how the information will be held and shared between relevant authorities. Currently, there is no one central register in which to hold the information, and the committee recognises that there needs to be more joined-up thinking when it comes to intelligence sharing. That information sharing would help to track patterns of animal abuse. As a member for a rural constituency—Galloway and West Dumfries—it is clear to me that animal welfare and wildlife crimes are linked to other crimes, including domestic abuse and other criminal activity. That strengthens the need for sophisticated intelligence gathering.

I agree with Battersea’s position on the issue. Information on convictions, sentences, disqualifications and so on should be held in a database and shared with the relevant authorities. We will seek to strengthen the bill with amendments at stage 2 to give clarity and reassurance around who is party to that sensitive information. Having access to information in order to identify convicted offenders is a vital part of the bill, but it must be done in the right way.

Although there has been some increase in police resources, I still have concerns because in order to ensure that the increased penalties act as a deterrent, we must also ensure that the chances of being caught and convicted are increased. We can do that by giving more resources and support to wildlife crime officers to catch those offenders. I am open to the SSPCA’s suggestion that a taskforce should be set up to review the extension of wildlife powers and overall enforcement when it comes to tackling wildlife crime in Scotland. I would also welcome further discussions with the Scottish Government in order to increase the resources that are available to those who support the tackling of wildlife crime.

In England and Wales, we have already seen the welcome introduction of Finn’s law to protect police dogs and horses who serve alongside our officers. As we heard earlier, my colleague Liam Kerr has done a tremendous amount of work to ensure that that law will be extended to Scotland by its becoming part of the bill. I pay tribute to his efforts alongside those of many other campaigning groups and individuals, such as PC Dave Wardell.

The bill is long overdue. It will ensure that those who continue to commit painful and cruel crimes against animals know that they will be dealt with by the full force of the law. It is welcome to see the Scottish Government deliver on its commitment to that, ensuring that all parts of the United Kingdom have legislation that cracks down on wildlife crime. Although there is scope to bring forward amendments to the bill at stage 2, in principle, the Scottish Conservatives welcome the legislation.

15:22  



Claudia Beamish (South Scotland) (Lab)

Scottish Labour robustly welcomes heavier sentences—of up to five years in prison and unlimited fines—for serious animal and wildlife crimes. We are supportive of all the recommendations of the ECCLR Committee, of which I am a member. I note for the record that its report was agreed unanimously. We agree with the general principles of the bill, and Scottish Labour recognises animal sentience.

As our convener, Gillian Martin, highlighted, there is strong public interest in ensuring the protection of animals and wildlife. I thank the minister for her response to the committee’s recommendations, which was received in reasonable time to consider—which was most welcome.

Although we recognise the complexities of some of the issues, my colleague Colin Smyth and I will today highlight parts of the bill on which it is our view that the Scottish Government’s response is somewhat disappointing.

As our convener has already outlined, in relation to the destruction of habitats:

“The Committee recommends that the Scottish Government reconsiders its approach to ensure enhanced protections are extended to resting places and breeding sites therefore sentencing can reflect where crimes in effect have equivalent outcomes i.e. in terms of harm to the animal.”

In that respect, the minister’s response is disappointing in relation to badger setts and other habitats, and I would ask her to reconsider it before stage 2. As I understand it, that relates to the law—to legislation—and not to sentencing guidelines. The use of illegal pesticides does not seem to carry a sentence, which is likely to act as a deterrent, either. The minister’s response to the committee on that is also disappointing.

My colleague Colin Smyth will cover other offences that we agree should be considered as serious crimes.

In January, I attended a meeting organised by Fisheries Management Scotland and Scottish Land & Estates at which there was wide recognition that Atlantic salmon are reaching crisis point and that salmon conservation should become a national priority. Fisheries Management Scotland has indicated its concern that some of the offences in the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 are not included in the bill, despite fish crime being included in the wildlife crime penalties review group, which was led by Professor Poustie and which reported in November 2015. I ask the minister to confirm what action the Scottish Government intends to take to ensure that our iconic salmon and freshwater fish are better protected and that penalties are commensurate with the potential for damage to those species and to the habitats on which they depend.

Sadly, there have been few prosecutions and convictions for vicarious liability. Some would argue that the introduction of vicarious liability has raised awareness of owner responsibility higher up the agendas of owners. However, the committee has called for

“increased transparency around Crown Office decision-making”,

which in our view is in the public interest. In response to our recommendation that

“the Committee would welcome the concept of vicarious liability being extended to further wildlife offences”,

the minister is interested in hearing what other crimes could be considered. I welcome that, and I therefore ask that the crimes listed could be the same as those that any alleged perpetrator has committed, on the basis of evidence.

I turn to the detection of wildlife crime. The committee argued that we should

“enhance detection and prosecution by expanding the powers of the SSPCA ... as an approach to better resourcing wildlife crime enforcement.”

We are all keenly aware that such crimes happen in remote and hard-to-reach areas of the country and we know only too well that resources are stretched. The combination of poor weather and delayed forensic examination at potential crime sites can compromise prosecution. The Scottish Government argues that the bill should not be delayed to enable further consultation on the extension of those powers.

I recognise that there are complex issues to clarify, but I understand that the SSPCA is working with ministers, officials and Police Scotland to find a suitable solution away from the bill. As Finlay Carson highlighted, the SSPCA has said:

“Now is the right time to establish a taskforce to review enforcement when it comes to tackling wildlife crime in Scotland and allow for the potential of extension of wildlife powers to be discussed in more detail. We believe this group could be established within the next three months.”

The issue was live in the previous session of Parliament, and Scottish Labour asks for a resolution in the current one.

Colin Smyth (South Scotland) (Lab)

On the issue of enforcement, the bill proposes allowing animals to be rehomed without a court order, but does Claudia Beamish agree that one positive measure that a number of animal welfare charities are proposing is that there should be a time limit for dealing with appeals so that animals are not held for protracted periods while the court makes a decision on the appeal?

Claudia Beamish

I absolutely agree. The SSPCA has highlighted that animals can have to wait for a decision on their fate for weeks, months or sometimes years, so that is of fundamental importance.

In recommendation 51, the committee raised the issue of video surveillance relating to wildlife crime. That is a valuable detection tool and evidence opportunity, although it has long thrown up challenges. Following the recognition that such crimes are serious, I expect that Police Scotland will be able to make use of that method more widely, and I hope that that will be the case. The principles governing the admissibility of evidence are not specific to video or closed-circuit television evidence, which is often used in criminal trials in Scotland, so I hope that that will be a possibility.

As I will make further remarks in my closing speech, I will leave it at that for the moment.

15:29  



Mark Ruskell (Mid Scotland and Fife) (Green)

I welcome the introduction of the bill to Parliament. The Greens will of course back its general principles at stage 1. As the convener of the Environment, Climate Change and Land Reform Committee has pointed out, the way in which we as a society treat animals is a true measure of our wider values. Those who abuse and cause suffering to animals often go on to direct their sadism towards vulnerable people. By protecting animals, we protect everyone in society.

The bill introduces welcome and urgently needed increases to penalties, including for wildlife crime, but alone those are not enough. Much more needs to be done to address the wider barriers to successful convictions. As the 2015 wildlife penalties review group concluded, raising penalties is just part of the package that is needed to address wildlife crime and animal cruelty. There have been only two successful convictions under the vicarious liability provision in the Wildlife and Natural Environment (Scotland) Act 2011 since it was introduced seven years ago. In one high-profile case this year, a gamekeeper was convicted of multiple accounts of wildlife crime, including killing protected birds of prey, but the Crown Office did not proceed with a vicarious liability prosecution. There is still time for the bill to introduce wider reforms, including extending vicarious liability to mammals and ensuring that it can be applied to all forms of landowners.

As I am sure the minister knows, wildlife crime is prolific in areas such as the Angus glens. I had hoped that the Government’s special constable pilot in the Cairngorms would have proved to be the model for enhancing the detection of wildlife crime, but it has proved to be largely ineffective and has not resulted in any successful prosecutions whatsoever. Meanwhile, the Parliament has been incredibly patient while the Government has pondered extending the role of the SSPCA, so that its powers can cover wildlife crime. That was first proposed more than a decade ago by Peter Peacock MSP and since then the SSPCA has repeatedly offered to extend their role. In the intervening years, while we have been waiting, we have seen sustained persecution of birds of prey; every year we celebrate as fledgling sea eagles, golden eagles or hen harriers are tracked leaving their nests, but every year the same birds are found dead, poisoned and shot. That is Scotland’s national shame and we need to take decisive action. As part of the approach, we need a force with eyes and ears on the ground assisting the police. The SSPCA would be able to bring its professionalism and know-how to investigating and protecting wildlife crime evidence.

Why is it that an SSPCA officer can visit an illegal trap with a live animal caught in it, but a trap a few metres away with a dead animal is beyond its legal responsibility? Why is it that someone beating a dog at home is a matter for its investigation but someone beating a wild animal on the other side of the garden fence is not? The Scottish Government has the chance with this bill to do what it should have done years ago and make a logical extension to SSPCA powers while the statute book is still open.

On other aspects of the bill, the introduction of fixed-penalty notices is a welcome addition to tackle the most minor of offences in a speedy fashion. I am sure that there will also be further debate on extending maximum sentences to more welfare offences and on automatic bans on owning animals.

In a modern justice system, rehabilitation and restorative programmes as well as criminal sentencing, are vital. We discussed empathy training in the committee—indeed, it was a recommendation of the Poustie review that there should be such an option available at sentencing. We are, however, currently stuck in a chicken-and-egg scenario, where the lack of availability of appropriate empathy courses means that judges are unable to choose that route for an offender.

Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP)

What evidence did the committee see that empathy training has any impact? The evidence seemed to be ambiguous.

Mark Ruskell

That is the nature of the chicken-and-egg scenario that we are in. We have been unable to roll out empathy training in relation to animal cruelty despite the fact that judges have wanted to use it as a route. The restorative and rehabilitative approach works with other areas of criminality. There is good evidence from other countries on how the approach is starting to be used with wildlife crime and other forms of animal cruelty. It is an area that the minister is interested in and I ask her whether a reasoned amendment to the bill would help move us on at stage 2.

I warmly welcome Finn’s law in relation to service animals, which removes the defence that some may use to excuse violence against them. I ask the Government to review whether that provision could be broadened further.

The Animal Health and Welfare (Scotland) Act 2006 was a landmark piece of legislation. It was broad in scope, and I remember that the committee at the time had to work hard to scrutinise a wide range of issues, from the definition of an animal through to tail docking. With our exit from the European Union, the fresh bill could have been the opportunity to fully update the 2006 act, including consideration of more fundamental issues such as how the sentience of animals should be embedded across Government policy.

I recognise that a range of secondary legislation is in preparation for dealing with animal sanctuaries, breeding and sales, but there are still significant reforms that will now be delayed until the next session of Parliament, including—I am guessing, on the basis of the minister’s answer to my question earlier—the regulation of performance animals.

I hope that the minister can see that further opportunities still exist in the bill for the Government to take a progressive lead in the UK on animal welfare issues, and I hope that at stage 2 she will remain open to changes coming from Opposition parties as well as from the Government.

14:35  



Liam McArthur (Orkney Islands) (LD)

I am pleased to take part in this debate on the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill on behalf of the Scottish Liberal Democrats. I start by commending Gillian Martin and colleagues on the ECCLR Committee for their scrutiny work, and I thank all those who have supported their efforts, particularly those who have provided written and oral evidence at stage 1.

The Scottish Liberal Democrats strongly back the principles of the bill, and many of the measures that it proposes, not least the introduction of what has become known as Finn’s Law.

As Battersea Dogs & Cats Home and others have reminded us, Scotland has one of the lowest tariffs of sentence in Europe for animal cruelty. Twelve months in prison, plus a fine and a ban on keeping animals, for the worst act of animal cruelty compares badly with five years for crimes such as fly-tipping. The comparison does not reflect well on our justice system, nor does it reflect public attitudes towards crimes of animal and wildlife cruelty. The case for reform is therefore compelling. The bill seeks to bring in such reform by increasing the maximum available penalties for cruelty and causing unnecessary suffering to wild or domestic animals.

As OneKind has pointed out, establishing the principle of penalising wildlife offences at the same level as offences against domestic animals is both significant and very welcome. So too, I think, is the point that has been made by OneKind about the need to make a distinction between those acting perhaps out of ignorance, or a lack of capacity, and those who, as OneKind suggests, should know better. It is not unreasonable for courts to take a particularly dim view of individuals who perpetrate acts of cruelty or cause unnecessary suffering of animals in the course of their employment or business. Breeders, farmers, and gamekeepers can rarely argue with any credibility that they are somehow ignorant of the law.

In supporting an increase to up to five years’ imprisonment for the most serious cases of cruelty and abuse, the Law Society of Scotland helpfully clarified that the benefit is in the extent to which that broadens the range of prosecutorial options. That will allow certain offences to be tried on indictment, where circumstances merit it, and will potentially also increase police powers in the detection of certain more serious crimes.

As well as allowing for more appropriate sentencing in some instances, I hope and expect that the measures in the bill will act as a more effective deterrent. Obviously, the ambition is to see a reduction in cases overall, including a reduction in the number of individuals who reoffend. In that context, I was particularly struck by OneKind’s comments about the potential for alternative approaches. At a time when our prisons are full to bursting, when all the evidence tells us that short prison sentences are less effective in reducing rates of reoffending than community-based measures, this area seems ripe for making use of alternative and more effective approaches.

Community payback orders are already used widely to deal with animal welfare cases, but perhaps not enough attention is given to using them to deliver lasting behavioural change. That is in line with the Poustie review, which recommended

“That wildlife crime offenders should be required to attend retraining courses, including courses on empathy where appropriate”.

However, Poustie went on to warn that

“This would require establishing that such courses are available and raising awareness of such courses amongst the judiciary.”

As the Justice Committee has heard repeatedly over recent years, that is a common refrain when it comes to community-based measures.

The investment that is needed to increase capacity and raise awareness is far less costly than continuing with custodial sentences and high rates of reoffending. I hope the ECCLR Committee will look at how the bill might be amended at stage 2 to broaden sentencing options further, including, for the reasons that Mark Ruskell laid out, by using restorative justice.

I note the committee’s support for an extension of vicarious liability provisions. I was a member of the committee that considered the Wildlife and Natural Environment (Scotland) Bill, which first brought in vicarious liability provisions. The previous convener of that committee swung effortlessly into the role of minister before bringing forward the proposals that the committee was scrutinising. Those proposals were intended to respond to the persistent and egregious persecution of raptors and birds of prey.

Notwithstanding Mark Ruskell’s concerns about the lack of prosecutions, I believe that the measure has had some success as a deterrent. However, the painful truth is that the illegal poisoning and persecution of many of our iconic species continues at shameful levels. That helps to explain the conclusions that Professor Werritty reached in his report on the case for licensing. I think there is an argument for looking at how vicarious liability might sensibly be extended to other types of wildlife crime.

I am not yet persuaded on the argument for extending the powers of the SSPCA. That was another debate that we had at the time of the WANE bill’s passage through Parliament. I was sympathetic to the frustrations and difficulties in gathering evidence, and indeed about the capacity of police officers to cover the ground in a timely fashion. I also recognise the apparent anomalies in the powers that SSPCA officers have in responding to complaints of cruelty towards domestic animals compared to reports of wildlife crime incidents.

Nevertheless, I remain uneasy about an extension of SSPCA powers. My mind is not closed to the idea, but the implications—and knock-on consequences—of going down that route need very careful consideration. I believe a task force would be well placed to give that consideration.

Claudia Beamish

Will the member accept an intervention?

Liam McArthur

Do I have time to take an intervention?

The Deputy Presiding Officer

Oh, why not?

Claudia Beamish

Could the member explain why he is uneasy about the alteration of powers, especially in view of what Mark Ruskell said and of the fact that the SSPCA has said that it already has powers in relation to animals?

Liam McArthur

Claudia Beamish raises a legitimate question. I sympathise with some of the anomalies that Mark Ruskell has outlined, but I recall from the debates that we had about the WANE bill that the consequences of extending the SSPCA’s powers, as has been suggested, are not without challenges. The task force seems to be a suitable framework for further consideration before we bring forward any proposals about that.

That is just one of the issues that I am sure that ECCLR Committee members will wrestle with during stage 2. Another is the question of whether the Finn’s law provisions should be extended to cover other working animals, including assistance animals. I look forward to seeing how the debate on that and many other issues unfolds at stage 2.

Meantime, I welcome the bill and the additional protection that it will provide to animals and wildlife in Scotland. As the minister reminded us, its provisions enjoy overwhelming public support and Scottish Liberal Democrats will be happy to vote in favour of the principles of the bill at decision time.

The Deputy Presiding Officer

We move to the open debate. Please keep speeches to six minutes. I have a tiny bit of time in hand, but do not go overboard.

15:43  



Kenneth Gibson (Cunninghame North) (SNP)

I am pleased that the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill has been brought to the chamber. I thank OneKind, Battersea Dogs & Cats Home, Dogs Trust and a range of other animal charities for the briefings that they have provided.

The bill is another step in the Scottish Government’s strategy of improving animal welfare across Scotland. In 2016 the SNP Government improved responsible dog ownership through compulsory microchipping, which helps make it easier for dogs to be recognised and reunited with their owners if lost or stolen.

In February, the SNP Government appointed members of the Scottish animal welfare commission to advise on the welfare of sentient animals, in line with the 2019-20 programme for government. The Government has also consulted on introducing compulsory video recordings of slaughter in abattoirs to make sure that that is carried out humanely, and will bring forward secondary legislation on that next year. In that regard, the Government supports industry introduction of closed-circuit television in abattoirs before it becomes compulsory and is committed to exploring the potential for new systems of calf rearing in the dairy sector.

Animals are defenceless and might need human help when it comes to their safety, wellbeing and protection—particularly when they are threatened by other humans. Legislation provides a framework for that, and we should pay tribute to those who work, often as volunteers, on the front line.

In my constituency of Cunninghame North, such work is done at Hessilhead Wildlife Rescue near Beith. Dedicated staff who are mostly volunteers do all that they can on a daily basis to rescue animals, treat them and nurse them back to health. Once rehabilitated, the animals are released back into the wild when it is deemed safe. Facilities at Hessilhead include an intensive care unit, a swan and seal hospital with indoor pool, a hedgehog unit, a surgery with X-ray equipment and more than 60 outdoor aviaries, enclosures and release pens. Hessilhead is a busy rescue centre, known for carrying out its work with the utmost care and to the highest standards.

Sadly, not all rescue centres live up to that and there are still upsetting cases in which those we entrust with responsibility for our pets and other animals turn out to be the worst perpetrators. Colleagues may remember the 2017 case of the Ayrshire ark, a rescue home in Patna that was exposed for the mistreatment and neglect of animals after a police raid resulted in the discovery of the emaciated and mutilated corpses of 15 dogs and one cat. The photos of the frozen remains of once-loved pets paint terrible pictures of the suffering inflicted on them that stay with anyone who sees them.

The perpetrator received a pitiful seven-month jail sentence for causing the animals unnecessary suffering, with a concurrent four-month sentence for failing to ensure their welfare and a lifelong ban on owning or keeping animals. That was after the offender had pled guilty to nine charges, including causing unnecessary suffering, exposing dogs to unsatisfactory conditions and failure to provide the necessary nutrition and veterinary treatment.

Dee McIntosh, who was then the communications director of Battersea Dogs & Cats Home, said:

“Had this woman been convicted of fly tipping”—

which is another issue that members have raised today—

“she could have been jailed for up to five years. Instead, she escaped with just a few months.”

Increasing penalties, including a maximum custodial sentence of five years for animal cruelty, and introducing fixed penalties are, in my view, most welcome. However, as other members have pointed out, more needs to be done to secure successful prosecution; Mark Ruskell’s comments in that regard were particularly compelling. Such penalties are particularly important for wildlife crimes, which are just as serious as domestic animal crime. Cruelty is cruelty, and it should be treated as such by the authorities.

I pay tribute to the brave dogs and horses working for Police Scotland. I am not on Twitter, I am pleased to say, but I am told that I am truly missing out on the Scottish police dogs and Scottish police horses accounts. I understand that day in, day out the dogs and horses display the greatest valour and sometimes suffer vicious attacks in the line of duty, occasionally resulting in injury or death. That is why section 3 of the bill, which seeks to improve the protection of such service animals, is most welcome. Police dogs and horses are an extension of their handlers and when an alleged perpetrator attacks them it is an attack on the police. There should be no mitigating circumstances for that, and I agree that the self-defence argument should be removed.

I believe that to achieve maximum protection, the terminology that is used in section 3 could be reconsidered to clarify what a “service animal” is. I would not necessarily look for a definition along the lines of animal species, as limiting it to species that are currently in harness may not be enough in the future. It would be better to define more clearly which services the animals are involved in. It would also be good to clarify whether the definition includes guide dogs, which even more than rescue and armed forces service animals are an extension of the person who handles them. I am sure that such matters can be thrashed out as the bill is considered at stage 2.

I am delighted to support the principles of the bill and I look forward to it soon becoming law.

15:48  



Maurice Golden (West Scotland) (Con)

I have spent several years campaigning to improve animal welfare in Scotland, and there is much to welcome in the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill, not the least of which is toughening up punishments for animal cruelty.

The Scottish Conservatives are clear on this: those who inflict pain and suffering on animals should always feel the full force of the law. However, that has not been the case. In almost 800 animal cruelty convictions over the past decade, most perpetrators avoided prison. Only 41 custodial sentences were handed out. The public will understandably be outraged by that lack of justice. We saw that in the bill consultation, to which 99.4 per cent of respondents agreed that punishments should be strengthened. It is right that the bill should increase the maximum sentence for animal cruelty offences to five years or an unlimited fine. However, we should go further by introducing measures such as automatic bans on keeping animals for those who are convicted of the worst animal cruelty offences, and life bans for the worst offenders. That position is supported by a number of welfare organisations, including the Dogs Trust and the SSPCA.

I welcome the introduction of fixed-penalty notices for the most minor offences, which will give local authorities more flexibility to deal with more minor cases and help free up courts to deal with the more serious ones. Given the support for that across the Parliament, I hope that we can correct an omission from the bill: the lack of provision for a central register to track those fixed penalties, or animal cruelty cases in general. Such a register would help to make investigations more efficient, monitor risk factors and spot when low-level incidents might escalate. The Scottish Conservatives believe that that is too important an advantage to throw away, and we will look to amend the bill at stage 2 to make better provision for data sharing. I look forward to working with the minister where there is common agreement.

I am also pleased to see that the bill will introduce Finn’s law; Liam Kerr has already had an outing today. Service animals risk their lives to protect us, so it is only right that we give them protection in return. That is long overdue. PC Dave Wardell, along with the aforementioned Liam Kerr, has fought hard to introduce that.

On the other hand, I was disappointed to see the bill do nothing to address electric shock collars. I campaigned for an end to those cruel devices and over 20,000 people signed my petition in agreement. A prompt and effective ban was promised, but ineffective guidance was delivered. That is not good enough, and the welfare organisations agree. The Kennel Club and the Dogs Trust have said that they were disappointed. The Edinburgh Dog and Cat Home has called for an outright ban, and that was echoed by OneKind, which says that the Scottish Government should follow the Welsh example with a real ban. The minister should listen to the experts. The current guidance does not protect dogs. It is time to ban the use of electric shock collars in Scotland—once and for all.

Long overdue, too, is making pet theft a specific offence. As the law currently stands, pets are classified as objects. Stealing a dog is treated the same way as stealing a phone. Anyone who has a pet knows that they are not objects; they are part of the family and they deserve better protection in law.

In tandem, there is a need to improve how pet theft and animal cruelty incidents are recorded by the police. The Dogs Trust and SSPCA are actively looking at that. With five pet thefts each day across the UK, we need action. In Scotland, residents in Fife worry that gangs target specific homes, and, in one terrifying incident, an Arbroath lady was held at knife-point while trying to rescue her dog.

There is good will across the Parliament to see the bill succeed, and we should use that good will to ensure that Scotland has the highest animal welfare standards. I stand ready to work with the minister and with members across the Parliament to deliver the bill.

The Deputy Presiding Officer

I have a wee bit more time in hand now. If any members would like to offer or take interventions, I can allow time for that.

15:53  



Colin Smyth (South Scotland) (Lab)

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

Mahatma Gandhi once said:

“The greatness of a nation and its moral progress can be judged by the way its animals are treated.”

From baiting and fighting to mass puppy farming and the illegal shooting of birds of prey, there is nothing great about the heartbreaking stories of cruelty that we hear of taking place in Scotland every day. This Parliament has a moral duty to ensure that our laws help tackle that cruelty and deliver the highest standards of welfare for every animal in Scotland.

It is clear that the current sentencing options for animal welfare and wildlife crimes do not reflect the severity of the crimes that we hear about, so I welcome the decision to correct that in the bill and I congratulate all the campaigners who have fought so hard for that change in the law.

The penalties that are proposed in the bill for animal welfare and wildlife crime will act as a stronger deterrent and will give courts the flexibility that they need to deliver fairer sentences. In particular, the decision to set the maximum sentence for the most serious wildlife crimes at the same level as that for domestic animal welfare crimes at long last reflects the sentience of wild animals.

However, as well as increasing the penalties for those crimes, we need to look at whether the law’s coverage of crimes and animals is adequate. In their joint briefing on the bill, Blue Cross, Cats Protection, the Edinburgh Dog and Cat Home, PDSA and the Dogs Trust highlighted the significant number of animal offences that are not covered by legislation. Offences such as mutilation, cruel operations, poisons, failure-to-ensure-welfare offences, licensing activities involving animals and abandonment are not covered by the changes to be made by the bill, despite the serious harm that such crimes can clearly cause. As it stands, any such offences would be punishable only by a maximum of six months’ imprisonment or a £5,000 fine. If the aim of the bill is to properly punish, act as a deterrent and give the courts more flexibility to deal with animal welfare crimes, it does not go far enough and there is a clear case for expanding the number of offences that are covered by increased sentences.

Likewise, the Environment, Climate Change and Land Reform Committee’s positive report, on which I congratulate the committee, highlights problems with how wildlife crimes are categorised. The committee calls for

“a consistency of approach for categorising and prosecuting different types of wildlife offence.”

In their evidence to the committee, Scottish Badgers and Scottish Environment LINK specifically highlighted the need for stronger protection for habitats and badger setts, which was reflected in the committee’s conclusion that

“the destruction of a habitat could be as fatal as directly harming or killing an animal.”

The committee rightly recommends that the Government

“reconsiders its approach to ensure enhanced protections are extended to resting places and breeding sites”.

I was deeply disappointed that the Scottish Government dismissed that suggestion and I urge it to reconsider.

Scottish Badgers has suggested that a minimum fine is introduced for the most serious wildlife crimes, as recommended in the Poustie review. I hope that the Scottish Government will also give due consideration to that suggestion.

We need to review which animals are covered under the Animal Health and Welfare (Scotland) Act 2006. It is becoming increasingly clear that cephalopods and decapod crustaceans should be protected animals, as more and more evidence points to the fact that they are intelligent, sentient animals that are capable of experiencing pain.

Although the longer custodial sentences and higher fines that are proposed in the bill are welcome, they must not be the only action that is available. In its evidence to the Environment, Climate Change and Land Reform Committee, OneKind highlighted the need for alternative solutions

“to help an individual develop empathy and regard for animals and learn to treat them humanely”,

and suggested that community payback orders can be better utilised

“to effect behavioural change and provide long term protection for animals.”

It is vital that our response to such crimes is constructive and not purely punitive. Although non-custodial interventions, such as restorative justice processes and rehabilitation programmes, are not currently prohibited, there is no dedicated option for animal welfare, and little clarity on how and when such an approach should be taken. The bill is an opportunity to address that, so I am disappointed that the Government’s response to the committee fails to acknowledge the value that such a scheme could have, dismissing it as not “proportionate or cost effective”.

The introduction of fixed-penalty notices is a useful proposal, but it must be limited to minor offences, and I urge that consideration be given to Scottish Badgers’ suggestion that where FPNs are issued, they should be combined with behaviour orders specifying restrictions or goals for future behaviour.

We should also use the bill as an opportunity to discuss the possibility of automatic bans on owning animals for those who are convicted of serious animal cruelty offences.

On the subject of enforcement, although the strengthened penalties are welcome, they are meaningless if we do not improve the detection and prosecution of such crimes. That means backing up the bill with properly resourced specialist enforcement. I echo the committee’s recommendation that

“the Scottish Government explores in detail the options to enhance detection and prosecution by expanding the powers of the SSPCA”.

I hope that we do not look back on the bill as a missed opportunity to do so, given the SSPCA’s significant expertise and skills in this area. We should make the most of such skills in our fight against animal cruelty.

15:59  



Stuart McMillan (Greenock and Inverclyde) (SNP)

I welcome the bill and the stage 1 report by our colleagues in the Environment, Climate Change and Land Reform Committee. I thought that the report was extremely helpful for someone who is not a member of the committee and that it set out a lot of the issues in the bill. I recommend that anyone outside the Parliament who is interested in the bill and the subject that it deals with look at the report. I also thank the minister for our dialogue last year, when we had a meeting regarding a particular local issue that I will come to in a few moments.

I will focus my comments on that local issue, but I will first touch on a couple of issues in the bill and the stage 1 report. I thank my committee colleagues for their report and their clear analysis of the bill. The graphic information on page 2 of the report sets out clearly what the bill will do. It is important that people recognise that the bill

“Increases penalties for animal and wildlife crime ... Introduces fixed penalty notices ... Extends the time allowed for prosecution ... Increases the protection for service animals ... Gives new powers to ‘authorised persons’”.

Those are extremely important provisions. I welcome the recommendations on page 5 of the report to increase “maximum penalties” to “five years in prison” and that “further discussion” take place with the Scottish Government on the issue of “sentencing guidelines”.

Page 7 highlights the issue of “empathy training”. I welcome such training, but I believe that some individuals have no empathy whatsoever and that any empathy training would be totally wasted on them. Sadly, that is just a fact of life in society.

I welcome the recommendations on page 8 regarding the sharing of information, and I note the reply from the Government on that matter. For me, the issue here is that it does not matter where some individuals live, because the issue of local authority boundaries will make absolutely no difference to them. It is therefore important that we get it right on the issue of information sharing.

I turn now to the local issue that I referred to, which I have spoken to the minister about previously and raised in the previous parliamentary session as well. There was an incident in Gourock in 2011 at the Pets Corner animal shelter in Darroch Park. It was reported in the local newspaper, the Greenock Telegraph, that someone had entered the park and killed a number of the animals in the shelter. It was thought that the animals were killed by a golf club and by a dog. The article in the newspaper stated:

“The animal attackers went on a sickening rampage at the popular family attraction which left six animals dead, 12 missing and another two needing urgent treatment at a vet surgery. It’s thought a golf club and a large dog were used as lethal weapons in the frenzy.”

Local vet, Neil McIntosh, of the Abbey Group, who was involved in the treatment of the animals, said:

“The four guinea pigs were gripped and killed by the dog, and the rabbit had a badly broken jaw, probably caused by the golf club that was left lying at the scene.”

That crime shocked the whole community, and the local newspaper undertook a justice for pets campaign. The campaign received over 5,400 signatures for its petition, which was handed to the then cabinet secretary, Richard Lochhead, at a meeting. The ex-MSP Duncan McNeil and I attended that meeting and we were fully supportive of the Greenock Telegraph’s campaign. The campaign’s two asks were increased sentencing and removal of the time bar for prosecutions. The latter ask is important, because the crime took place in 2011 and local police found DNA evidence in 2013—two years later—that directly linked an individual to the offence. The police therefore arrested him. Sadly, as the arrest happened after the six-month period that was allowed at that point for arrests after an offence, the individual went free.

The bill seeks to safeguard domestic, farm and wild animals, and the various penalties highlighted are very welcome. Each of the penalties will involve trials under either solemn or summary procedure, and time bars for bringing prosecutions will not apply after the bill has been enacted. I would be grateful if the minister could clarify whether the bill achieves the goal set out in the Greenock Telegraph’s campaign. If there are any issues in that area, I will continue to have dialogue with the minister.

The minister wrote to me in March 2019 about the campaign. She said that the Scottish Government

“intends that the most serious animal welfare offences could, in future, be prosecuted under solemn procedure, removing the statutory time limits for prosecution. Those proposed changes would appear to meet the concerns of those supporting the Greenock Telegraph’s petition.”

However, I am very much aware that section 10 of the bill says:

“But no such proceedings may be brought more than 3 years”

after in certain cases. I would be grateful for a wee bit of clarification on that aspect.

I am genuinely delighted that this long-overdue bill has been introduced to Parliament. I thank the minister for her hard work on, and her determination in progressing, the bill. I know that animals across Scotland will be a lot safer as a consequence of the bill, and I am quite sure that many of my constituents will be delighted with it.

16:05  



Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

I thank the Environment, Climate Change and Land Reform Committee and its convener for all their hard work in putting together the recommendations that are set out in its report.

The bill will amend the Animal Health and Welfare (Scotland) Act 2006, several pieces of wildlife legislation and the Animal Health Act 1981 for the purposes of further protecting the health and welfare of animals and wildlife in Scotland.

It is important to remember that the bill does not create offences; rather, it is concerned with increasing the range of sentencing options for existing animal and wildlife offences.

Individuals who cause pain and suffering to animals should be met with the full force of the law. The Scottish Conservatives welcome this long-overdue bill, which will toughen sentences for animal cruelty.

Some 99.4 per cent of respondents to the Scottish Government’s consultation agreed that penalties are too low and that increasing the maximum penalties would increase sentencing options, which would ultimately act as a deterrent.

We have all heard about many shocking animal cruelty cases in which the maximum sentence available to the court was not sufficient. The bill amends the 2006 act to increase the maximum available penalties for causing unnecessary suffering, and it increases the penalty for animal fighting offences from the current 12 months’ imprisonment and/or a £25,000 fine to five years’ imprisonment and/or an unlimited fine.

Battersea Dogs & Cats Home has said that there needs to be a change because, no matter the circumstances in which an animal has suffered, the courts in Scotland can punish only the most serious acts of animal cruelty with up to 12 months in prison, a fine of up to £20,000 and a ban on keeping animals. The British Association for Shooting and Conservation submitted that

“BASC fully accept and recognise that the current penalties for animal welfare offences do not reflect the seriousness of the crimes in question.”

The proposed penalties of up to a five-year custodial sentence and/or an unlimited fine reflect the abhorrent nature of the offences, as detailed in sections 19 and 23 of the Animal Health and Welfare (Scotland) Act 2006. The severity of the sentences will likely be a strong deterrent factor, which will effectively reduce the prevalence of animal welfare offences across Scotland.

I turn to some of the changes that the bill will bring. The bill introduces powers to enable the Scottish ministers to make regulations for the issuing of fixed-penalty notices in respect of certain animal health and welfare offences. There is broad cross-party support for providing authorities with flexibility to determine the appropriate means for the range of enforcement tools that are needed to provide a deterrent for minor offences. It would be useful to hear the results of the consultation and how the Government intends to introduce fixed-penalty notices.

The Law Society of Scotland is concerned that the operation of fixed-penalty notices lacks detail, and it would have expected consultations to have been concluded before the introduction of the bill. For example, we do not know how the Scottish Government will ensure that fines do not go unpaid. The Scottish Conservatives hope to have the details about that ironed out as the bill progresses.

The Scottish Conservatives have vigorously campaigned to increase the protection for service animals. We consider that increasing such protection for police dogs and horses makes it easier to convict people of causing unnecessary suffering, and the bill will include the Scottish version of Finn’s law. Currently, when determining whether a person has committed such an offence, the court must have regard to whether the conduct was for

“the purpose of protecting a person, property or another animal”.

The bill will require a court to disregard that defence when the offence is committed against a service animal in the course of its duty.

Giving new powers to authorised persons is important, and the bill amends the 2006 act to introduce a new procedure to allow enforcement agencies to transfer, treat or destroy animals that are taken into their possession for welfare reasons without needing to obtain a court order. At the moment, enforcement agencies must obtain a court order to take such action. The new procedure will surely help in those circumstances.

With regard to wildlife crimes, the committee wants a consistent approach to be taken to the categorisation and prosecution of different types of wildlife offence, and it has asked the Scottish Government to consider taking such an approach. The committee understands that there are different tiers of penalties and is unclear about the logic for those differences. The effect of the destruction of a habitat could be as fatal as directly harming or killing an animal. For example, as we have heard, the destruction of setts could lead to the destruction of a colony and the deaths of the animals.

Given that Police Scotland played a full part in the wildlife crimes penalty review group, which was chaired by Professor Poustie, the organisation’s views were considered as part of his final report. As that appears to form the basis of a significant part of the bill, Police Scotland supports the bill in principle, as it will give the organisation additional options for investigating wildlife crime offences, such as the use of covert surveillance. However, it should be reiterated that the utilisation of such police tactics will always be considered on a case-by-case basis.

We support tougher sentencing for animal cruelty. It is long overdue for the most serious cases of animal cruelty to be dealt with much more severely by our courts. We campaigned for Finn’s law, and we thank PC Dave Wardell and Liam Kerr for their hard work in that regard. We believe that service animals such as police dogs play a vital role in the detection and prevention of crime, but, at the moment, the criminals who harm them are let off the hook. Anyone who causes pain and suffering to animals should be met with the full force of the law, and we support harsher sentences for animal cruelty.

Ruth Maguire (Cunninghame South) (SNP)

Would Ms Hamilton support legislation to tackle the cruelty of foxes being ripped apart by dogs?

Rachael Hamilton

As I have said numerous times, I think that it is important that anyone who inflicts cruelty on animals is punished in accordance with the law. I agree with many of the recommendations from the Bonomy review, including those on the code of practice and the monitoring.

The Environment, Climate Change and Land Reform Committee—of which I am no longer a member, as I have moved to the Rural Economy and Connectivity Committee—will strengthen the bill through amendments to ensure that agencies can share information on animal cruelty, which will make it easier to investigate abusers.

I would have liked to talk about the impact statements, which I think will be extremely important, and the committee’s recommendation to the Scottish Government about an amnesty on pesticides, but I must stop there.

16:03  



Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP)

I declare an interest as convener of the cross-party group on animal welfare and as a member of the SSPCA and RSPB Scotland. I congratulate the ECCLR Committee on its report. I almost—only almost—miss being on a committee. I thank the organisations that sent briefings in time for the debate.

Because I am speaking at the tail end of the debate—not that I mind being at the tail end—I will retread some of what has been said, starting with the purpose of the bill, which will amend the Animal Health and Welfare (Scotland) Act 2006. In particular, it will increase the maximum penalties for cruelty, introduce powers for the Scottish ministers to issue fixed-penalty notices, increase protection for service animals and provide for a new procedure to allow agents including the SSPCA to transfer, treat or destroy animals that are taken into their possession for welfare reasons without first having to obtain a court order.

On the number of animals that we know are in need, the SSPCA has told us that there were 82,000 reports in 2019, the majority of which related to injured wildlife. As we know, that is probably just the tip of the iceberg, because tracking and tracing animal welfare and wildlife crime is extremely difficult. It is difficult to locate it in the first place, and thereafter it is difficult to identify the culprits and to get sufficient evidence to pursue a prosecution. Such events, by their nature, take place covertly—one might say that they are perpetrated in a cowardly manner—and often in remote and rural areas.

As others do, I deplore every instance of animal cruelty, whether it is domestic or involves wildlife. To be frank, although I welcome the proposed increase in the penalties, I could support the maximum being raised even further.

I note that, according to the Scottish Government, there are more than 200 wildlife offences scattered across many pieces of legislation. I think that what Finlay Carson is calling for is a consolidation act. For the public, let alone for people who practice law, it is not handy to have 200 offences across many pieces of legislation: it would be handy to have them all in one place. That said, I welcome the proposed increase in the maximum penalty for offences from one year to five years, and I particularly welcome the removal of the time bar. With a time bar, if we do not prosecute soon enough, we cannot prosecute at all.

Fixed-penalty notices, which are a work in progress, are a good idea for minor and technical offences. I am not, however, so convinced about so-called empathy training, which I raised with Mark Ruskell. The Scottish Government said in its reply to the committee:

“There have been a number of recent studies on the efficacy of rehabilitation/empathy training on sexual/violent offenders, with mixed results being reported ... While it is possible that empathy training might benefit some offenders, it would be very difficult to come up with training that would effectively prevent/reduce re-offending in all offenders.”

I am not saying that such training is a bad thing; I just think that the jury is out.

Rachael Hamilton

When we discussed empathy training in the committee, concern was expressed that there would be issues related to resources and time.

Christine Grahame

We should investigate whether it is worth putting resources into things before we put resources into them—that is my point. The jury is out on whether empathy training is working where it is used at present.

The ability for agencies such as the SSPCA to rehome animals without the need to apply for a court order is long overdue. There is a cost to animals’ wellbeing. The average period for which animals are kept in custody, as it were, is currently 203 days, which is usually because they are being used in evidence in a case. Between 2016 and 2018, that cost the SSPCA some £1.5 million, which could perfectly well have been used for other things.

While I am talking about the SSPCA, I note that increased powers of investigation—which Mark Ruskell mentioned in passing—and even of enforcement are a really good idea. We are stretched in terms of policing wildlife crime. I note that special constables are being trialled—I think, in parts of the Cairngorms. That is a good idea. The more boots on the ground for finding out where wildlife crime is taking place, and for gathering evidence at the right time, the better.

Mark Ruskell

Does Christine Grahame agree that one of the issues is confusion about the powers of the RSPCA and SSPCA? The RSCPA can pursue its own prosecutions, whereas the SSPCA does more evidence-gathering work that supplements and supports the work of the police. That is the extension of powers that we want to focus on, rather than necessarily giving the SSPCA the full powers to prosecute that the RSPCA has in England.

Christine Grahame

When I mentioned enforcement, I did not mean prosecution. I agree that the problem of the distinction between the RSPCA and the SSPCA is long standing. People leave money in their wills to the wrong animal welfare organisation by mistake.

On the idea of a central register, it would be hugely difficult to get on one register all the information about written warnings, animal welfare cruelty and wildlife cruelty, but it is worth pursuing. I will plug my member’s bill—if Emma Harper can do it, I can do it. I have proposed the responsible breeding and ownership of dogs (Scotland) bill, which would provide for a central register of all puppies that are born in Scotland, to match the fact that all licensed breeders must register puppies. That is so that we would know who has dogs and where they have come from. That is nothing to do with the debate, but I mention it anyway.

The one recommendation that I could not quite follow is on absolute removal of the defence of self-defence in relation to attacks on service animals. I do not want anybody to get me wrong; I deplore attacks on service animals. However, if someone who is in charge of a horse or a dog weaponises it, or if an animal is out of control when it should be under its handler’s control, and someone—the victim—has to respond by inflicting a physical injury on the animal in order to protect themselves, that would be self-defence. In those examples, the handler would be using their animal almost as a weapon, either accidentally or deliberately.

When the committee asked the Government whether it was aware of any cases in which a working animal had been attacked and the attacker successfully used the defence of self-defence under the relevant section 19, the Government replied that it had no examples whatsoever. I do not see why we are taking away a defence that is so rarely used—even in the criminal courts when a person is attacked by another person. There might well be examples when it is perfectly legitimate for a person to say that they responded to the actions of an animal as an act of self-defence. I will leave that there for consideration. Other than that, I fully support the bill.

16:21  



Claudia Beamish

In closing for Scottish Labour, I will highlight more committee and party issues, and respond to some of the comments that have been made during the debate.

I start with the impact statement and the value in sentencing, which was compellingly argued for and was highlighted by the committee’s convener today. I would value a response from the minister on that.

Members have talked about empathy training in some detail. It is disappointing that the Scottish Government response rules out taking responsibility for its development. I appreciate that it would have costs, but the minister’s response states:

“Those animal welfare offences most likely to involve a significant lack of empathy and that result in custodial sentences are those involving deliberate abuse. Given that there are so few custodial sentences, it does not seem proportionate or cost effective to develop and deliver bespoke training for them.”

Some animal charities, including OneKind, with which my colleague Colin Smyth and I have had careful discussions, and which has experience and good judgment, have supported the proposal for empathy training. OneKind stated that the bill should be amended

“to require the courts to consider restorative justice processes and rehabilitation programmes for all people convicted of offences against animals, where these are available.”

I echo that. There should be funding for that crucial part of the range of sentencing opportunities.

I will therefore consider lodging an amendment to require the Scottish Government to develop a bespoke animal welfare empathy training programme to be delivered as part of community payback orders, where appropriate, and to set out guidance clarifying how and when that should be used in sentencing, as has been called for by some charities. As Colin Smyth said, it is important to be constructive and not only punitive.

I welcome the minister’s commitment to look at the detail of fixed-penalty notices before stage 2. In view of her comments about their use and the fees, I hope that it might be possible for local authorities to be responsible for them, and for them to use the fee money appropriately and relevantly. The minister’s letter to the committee today spoke about the FPN consultation process and highlighted a positive response.

The Environment, Climate Change and Land Reform Committee recommended robust information sharing. I hope that the minister will consider, in addition to the arrangements that she talked about, the committee’s suggestion about sharing information with social work departments, as appropriate, as is done in some countries. There is evidence of a link between a range of challenging crimes, some against animals, and others—equally sadly and worryingly—against humans.

I welcome the complementary measures in the bill, which were also highlighted by the minister. When I was a deputy convener of the animal welfare cross-party group, with Christine Grahame, closed-circuit television in abattoirs was explored in some detail. Will the minister say whether there will be support for smaller abattoirs if the proposal goes forward, because they might be challenged by installation costs?

Because they are connected with the bill, I feel an obligation to highlight the challenges that are faced in relation to some driven grouse moors and wildlife crime. Scottish Labour is clear that the Scottish Government should move urgently to introduce licensing of driven grouse moors, and with robust criteria. It is not acceptable to wait out the five-year pause that was recommended in the Werritty report on a range of issues that have gone on for far too many years.

Committee questions on suspension of general licences and appeal arrangements received a detailed response from the minister. The civil balance of probabilities test on whether wildlife crime has been committed

“can be an effective enforcement tool”,

but, of course, it in no way implies that criminal prosecution is not possible, or that criminal prosecution as a separate process should be delayed.

Finally, I commend all those who have supported the development of this vital bill, and I look forward to working with colleagues on the ECCLR Committee and with the minster and stakeholders as we progress to stage 2.

16:26  



Annie Wells (Glasgow) (Con)

I welcome the chance to speak about this long-overdue bill. One of the biggest perks of my new role as environment spokesperson is the chance to speak about animals and to ensure that they get the protection that they deserve.

I thank the Environment, Climate Change and Land Reform Committee for all the work that it has done so far. I welcome Gillian Martin’s contribution on behalf of the committee, and I look forward to working with her and fellow committee members throughout the progress of the bill.

As the owner of two dogs, Albert and Faith, I know how I would feel if they came to any harm, so it is right that we take the steps to make sure that sentences are appropriate and that justice is done. As Claudia Beamish said,

“there is strong public interest in ensuring the protection of animals”.

I totally agree with that. We can all readily agree that individuals who cause pain and suffering to animals should meet the full force of the law.

It is right that we increase the maximum penalties and make sure that there is an appropriate deterrent. Twelve months for animal cruelty, in the most severe cases, is just not enough. The justice system needs the flexibility to treat the most shocking acts more seriously than it does at the moment. Maurice Golden made a good point regarding a lifelong ban for those who commit the most serious of crimes, and I look forward to seeing amendments at stage 2 in that regard.

As Liam McArthur reminded us, Scotland has one of the lowest rates of sentencing in Europe, with only 41 custodial sentences in the past 10 years. The increase to a maximum of five years will bring us into line with the current penalties elsewhere, and there was unanimous agreement on those measures in the Scottish Government consultation. As we have heard, 99 per cent of respondents were in agreement; I do not think that I can remember that happening in any other consultation.

The Scottish SPCA’s briefing summed it up well when it said:

“Everything proposed in the Bill will make Scotland a better place for animals.”

I know that that is what we all want.

Blue Cross also made an interesting point in its briefing for today’s debate when it highlighted that it is not only the animal that suffers horribly from cruelty, because there is a huge amount of emotional and mental distress for the staff who have to deal with the aftermath. There is more that we can do to help those workers to get the support that they need. The bill is probably not the place for doing so, but I would like us to explore how we can better help those workers deal with trauma. Specific training for workers could perhaps be provided in the meantime.

Of all the measures in the bill, I am especially delighted to welcome the inclusion of Finn’s law. Last year, the UK Government passed its own bill, which is known as Finn’s law. As we know, my colleague Liam Kerr has fought hard to ensure that we get the right level of legal protection for service animals such as Finn. Some people do not realise how hard Liam has fought for the bill. He visited a police dog training centre, where he was fitted with protective gear, and a dog was encouraged to bite his arm. Needless to say, the dog went for it. Some of the photos did not see the light of day but the look on Liam’s face was something to behold. He has gone above and beyond to make sure that Finn’s law happens in Scotland, as it has in the rest of the UK. Therefore, I am glad to see recognition today for my colleague and everyone who has campaigned for Finn’s law.

On the suggestion that the provisions of Finn’s law should be extended to other working animals, it is important that we do not unnecessarily dilute that part of the bill. The committee found no firm evidence to support the idea that existing legislation cannot protect working animals. Attacks against other types of animal can be prosecuted under existing offences in the 2006 act, such as causing “unnecessary suffering”. I note the committee’s point that, regardless of the type of animal involved, the bill will increase the maximum penalties for those offences.

As far as improvements are concerned, the bill could be made better in two areas. First, the Law Society of Scotland made a worthwhile point when it suggested that there is a need for guidelines to help inform, guide and ensure consistency of sentencing. Anecdotally, I accept the Law Society’s point that we could have more firm evidence on that. The sentencing of people who have committed horrific acts on animals can be inconsistent. In her response to the committee, the minister raised the fact that the Scottish Sentencing Council has responsibility for guidelines. In May 2019, it said that it would defer the creation of those guidelines so that it could focus on sexual offences. Although I support that decision and the independence of the Sentencing Council, there is a need for guidelines to be introduced as soon as is practically possible. The minister said that she would write to the Sentencing Council to draw attention to those discussions; I hope that that happens and that the Sentencing Council receives the support that it needs to draw up those guidelines imminently.

Secondly, and as my colleague Finlay Carson set out in his speech, there appears to be a desire to share information between authorities but the committee heard that that does not happen in practice. That can act as a significant barrier to animal protection and can make investigations inefficient.

The committee took evidence and realised that sharing information about disqualification orders and fixed penalty notices might help to track patterns of offending, such as domestic abuse and criminal activity. Given that the committee convener and members have raised that point today, I hope that we can strengthen the bill with amendments on information sharing. The minister’s response to the committee on that point was welcome; she said that the Government is open to considering

“how we can support any possible improvements to information sharing and databases”.

The Scottish Conservatives look forward to working with other parties to make sure that that happens and that the necessary improvements are made, so that the bill is as strong as possible.

As the minister stated in her opening remarks, any animal cruelty or wildlife crime will not be tolerated.

The Deputy Presiding Officer

I call Mairi Gougeon to wind up the debate. Minister, I would be obliged if you could take us up to 4.45 pm.

16:34  



The Minister for Rural Affairs and the Natural Environment (Mairi Gougeon)

I have about a million pages here, so I will happily oblige you with that. I have been frantically taking notes throughout the debate, because a lot of points have been raised today.

As we have heard, we all take animal welfare and wildlife crime seriously in Scotland and across the chamber. People are rightly passionate about the subject, so I am proud to introduce this important bill to strengthen and modernise the enforcement of our world-leading legislation, because we have some of the best animal welfare standards in the world. This important and focused bill will have real impact on the ground, as soon as it comes into force later this year. It will send a strong message that animal cruelty and wildlife crime of any kind will not be tolerated.

Kenny Gibson best highlighted the contrast that we currently have when he pointed out that, right now, someone can receive a harsher penalty for fly-tipping than for some of the most unthinkable acts that are carried out against animals, which he outlined in his speech.

Finlay Carson

Given the restricted nature of what we are dealing with in this bill and the long list of other bills, including members’ bills, that are coming forward, does the minister agree that a fuller review of the 2006 act should have been considered? Does she agree that, as Christine Grahame mentioned, there was the potential to consolidate the legislation to make it slightly simpler to navigate?

Mairi Gougeon

I know that Finlay Carson raised that point in his contribution earlier. However, I hope that I outlined in my opening speech all the other complementary measures that we need to take. The measures that we are introducing today require primary legislation; others require secondary legislation. A number of different areas need to be looked at, but we are doing this in the most streamlined and consistent way we can.

We heard from Stuart McMillan about the truly horrific crimes that have taken place, which emphasises again why these proposals are so important and why the penalties need to better reflect the seriousness of the crimes. I am happy to reiterate what I stated in my letter to him, which is that, because the crimes will be considered to be serious, the time bar will not apply. That is a vital measure that we are introducing.

The bill will reduce the burden on the court system, enforcement officials and the police. However, more importantly, it will better protect the vulnerable people and animals that are involved in these often troubling animal welfare situations. The bill is welcomed by stakeholders and has strong support from the public, and I hope that its provisions will lead to behaviour changes that further reduce the incidence of animal cruelty and wildlife crime.

Members highlighted a number of issues in relation to the bill. In closing, I will try to cover them, as well as some of the issues that came out of the stage 1 report, as best I can. I will start by picking up on a few of the points that Gillian Martin raised on behalf of the Environment, Climate Change and Land Reform Committee. She highlighted the penalties that we have outlined for wildlife crimes, as did Claudia Beamish, Colin Smyth and a few others in the chamber. I will explain a bit more about the rationale for the position that we reached in determining the penalties for wildlife offences.

There are more than 200 wildlife offences across many pieces of legislation. The approach to increasing penalties for this area of crime was to offer a proportionate maximum level for crimes that involve direct unnecessary suffering, which would be similar to offences under sections 19 and 23 of the Animal Health and Welfare (Scotland) Act 2006. The penalties for the offences that we identified as having the most severe welfare impact, such as the killing or harming of a wild animal, have been increased to a maximum of five years’ imprisonment, or an unlimited fine, or both, under solemn conviction, as recommended by Professor Poustie in his review of wildlife crime.

We then considered a range of offences that may indirectly cause harm to a wild animal, such as the disturbance of, or damage to, habitats. For those offences, we have proposed that the maximum penalty be raised to 12 months’ imprisonment, or a £40,000 fine, or both, under summary conviction. When it comes to those kinds of offences, it is also important to remember that, if a person commits an offence in respect of more than one animal, egg and/or nest, there is currently provision in the Wildlife and Countryside Act 1981 for the court to consider each animal, egg, or nest separately when sentencing. It would therefore be possible for a fine to be imposed up to the new maximum of £40,000 in respect of each animal, egg and/or nest.

What we have proposed is proportionate, it is similar to some of the higher penalties that are found elsewhere in the world and it is in line with what was recommended as part of the Poustie review. If members have particular proposals that they want to raise with me, I am more than happy to discuss those with them. As I said, I know that the issue was highlighted by a few members around the chamber today.

Claudia Beamish

The minister may well be going to touch on this, but is she able to respond to Fisheries Management Scotland’s concerns about the iconic salmon species, either today or in the near future before stage 2?

Mairi Gougeon

That issue is covered in my copious notes, and I will give a direct response to Claudia Beamish on it, should I have time.

Rachael Hamilton, Christine Grahame and others touched on fixed-penalty notices. I assure members that those valuable additional and proportionate enforcement tools will be used for technical and minor offences only. The bill limits their use to offences with a maximum penalty of six months’ imprisonment, so they will not be used for the more serious animal welfare and wildlife offences that attract higher maximum penalties. I emphasise that we are not creating those fixed-penalty notice regimes as part of the bill. The bill will establish the powers to create those regimes but, as they progress, they will be subject to parliamentary scrutiny through the affirmative process. When I attended the committee, I stated that I will work with it on developing the regulations, and I remain more than happy to do that, because I want us to work together and get them right.

Finlay Carson and a few other members raised the issue of Scottish sentencing guidelines. As Mr Carson mentioned, the sentencing guidelines are, rightly, the responsibility of the Scottish Sentencing Council. Annie Wells touched on the fact that, in May 2019, the SSC announced that guidelines on wildlife and environmental crimes were being deferred to allow the council to deal with sexual offences. The council also highlighted that a delay would be needed anyway, because guidelines cannot be prepared while penalties are being changed. I am happy to reiterate what I said in response to the committee’s report. I will write to the SSC to draw its attention to the discussion that we have had today, which will help to inform its considerations of its future work programme.

On vicarious liability, after careful consideration and discussions with stakeholders, my officials and I have not been able to identify any further offences to which we think it would be useful or appropriate to extend the offence of vicarious liability. However, as I said, I would welcome suggestions on other particular offences that warrant that, and I will happily consider the matter further. Claudia Beamish might have made a suggestion earlier—[Interruption.]

The Deputy Presiding Officer

Excuse me, minister, but there is a terribly irritating low murmur going round the chamber. The minister has only a couple of minutes left in responding to the debate, so I ask members to listen to her, please.

Mairi Gougeon

Rachael Hamilton mentioned the potential for a pesticide amnesty, which I believe is an issue that she raised in the committee. There have been two previous pesticide amnesties in Scotland, so we think that it is unlikely that a further scheme would be effective, because those who wished to dispose of their stock have had ample opportunity to do so. We have sought the views of Science and Advice for Scottish Agriculture, the rural payments and inspections division, Police Scotland and the Crown Office and Procurator Fiscal Service on the need for and effectiveness of undertaking another disposal scheme, and it was felt that there would be little merit in that. A point was raised about considering increasing the penalties for holding illegal pesticides. Again, I am open to having a conversation on that with members.

Christine Grahame

Will the minister take an intervention?

Mairi Gougeon

I am sorry, but I do not have enough time.

Almost every member who spoke raised the issue of additional powers for the SSPCA relating to wildlife crime. To consider that as part of the bill would mean pausing the process to investigate the issues fully and gather more evidence before coming back to Parliament. It is not simply a case of granting more powers. Doing so could mean changes to the SSPCA as an organisation, which obviously needs to have the time to consider that. Given the amount of work that has to be done, my fear is that that approach could significantly delay the bill to the extent that there might not be sufficient time to complete its passage in the current parliamentary session. I want to ensure that the issue gets the time and detailed consideration that it deserves, so I have already given a commitment, which I am happy to reiterate today, that it will be investigated. I hope that members will be content with that assurance.

I hoped to be able to touch on a number of other points, one of which was the point that Claudia Beamish raised about wild salmon. I will respond to her about that.

One important final point that I want to touch on is the issue that Colin Smyth raised in an intervention on Claudia Beamish about the appeal process when animals are seized. It is important to highlight that the decision to appeal will have to be made within three weeks, and that the onus will lie with the owner to make the appeal and to pay the court fee for lodging it. That is a complete change from the current process. Also, the decision on the appeal will be final, and there will be no further appeal beyond that. Therefore, the process will be much more expedited—infinitely more so than it is at the moment. Further, compensation will be considered entirely separately, so that will not hold up any proceedings.

I thank all members for their contributions. The strength of feeling on the issue is clear, as is the passion that we all have for the welfare of animals and wildlife in Scotland. I am pleased that the bill has attracted wide support from stakeholders and from members. I emphasise that, although I could not get through all the points that I wanted to, my door is always open. I am happy to meet members to discuss potential amendments prior to stage 2 to consider how we can improve the bill. That offer stands for those who raised issues that I did not get the chance to cover and which they wish to discuss further.

I hope that members will join me in supporting the general principles of the bill.

The Deputy Presiding Officer

That concludes the stage 1 debate on the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill.

Vote at Stage 1

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Vote at Stage 1 transcript

The Presiding Officer (Ken Macintosh)

There is just one question to be put as a result of today’s business. The question is, that motion S5M-21200, in the name of Mairi Gougeon, on the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill, be agreed to.

Motion agreed to,

That the Parliament agrees to the general principles of the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill.

Meeting closed at 17:32.  



Stage 2 - Changes to detail 

MSPs can propose changes to the Bill. The changes are considered and then voted on by the committee.

Changes to the Bill

MSPs can propose changes to a Bill  these are called 'amendments'. The changes are considered then voted on by the lead committee.

The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.

The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.

How is it decided whether the changes go into the Bill?

When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.

The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.

Depending on the number of amendments, this can be done during one or more meetings.

First meeting on amendments

Documents with the amendments considered at the meeting that will be held on 26 May 2020:

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First meeting on amendments transcript

The Convener (Gillian Martin)

Good morning and welcome to the 11th meeting in 2020 of the Environment, Climate Change and Land Reform Committee.

Today’s business is consideration of the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill at stage 2. We are joined by the Minister for Rural Affairs and the Natural Environment, Mairi Gougeon, and her officials, whom I welcome. We are also joined by Colin Smyth MSP and Maurice Golden MSP. I welcome you both, too.

We have a lot to get through this morning, so the meeting will work well if we take things slow and steady. When I call someone to speak, please take a short pause before you start, to allow your microphone to be switched on.

Everyone should have a copy of the bill as introduced and the marshalled list of amendments, which sets out the amendments in the order in which they will be disposed of. Members also have the paper with the groupings of amendments.

I remind members that requests to speak should be made by typing “R” in the BlueJeans chat function, after I call each group of amendments. Please speak only when I have called your name.

Only committee members are eligible to vote. We will use the BlueJeans chat function to vote. If, when I read out the result of the vote, you think that your vote has been incorrectly recorded, please let me know that as soon as possible. I will pause to provide time for that. If we have tied votes on an amendment, as convener I will vote in the same way as I voted in the division. I will do that consistently throughout the process.

Should time be against us and we do not complete consideration of the amendments by 1 pm, we will continue consideration of the bill at our next meeting.

If we lose the connection to any member or to the minister, I will suspend the meeting until we reconnect. In the unlikely event that reconnection is not possible, we will reschedule stage 2 consideration. I will suspend the meeting for five minutes for a comfort break at a suitable point—probably around 11 o’clock.

I strongly encourage short and succinct contributions from everyone who speaks, if that is at all possible.

Before section 1

The Convener

Amendment 65, in the name of Colin Smyth, is in a group on its own. I refer members to the correction slip that has been issued in relation to the amendment.

Colin Smyth (South Scotland) (Lab)

Amendment 65 would extend the scope of the Animal Health and Welfare (Scotland) Act 2006 to include cephalopods and decapods—that is, animals such as octopuses, squids, crabs and lobsters—as protected animals. Such animals are not currently covered by the 2006 act and therefore receive no protection under it.

The Scottish Government has indicated its willingness to consider such a change, should appropriate scientific evidence become available. There is significant evidence that those animals are sentient, intelligent and capable of experiencing pain. In 2007, in his paper, “Cognitive ability and sentience: Which aquatic animals should be protected?”, Professor Donald Broom concluded:

“There is evidence from some species of fish, cephalopods and decapod crustaceans of substantial perceptual ability, pain and adrenal systems, emotional responses, long- and short-term memory, complex cognition, individual differences, deception, tool use, and social learning. The case for protecting these animals would appear to be substantial.”

Cephalopods, in particular, are known to be incredibly intelligent; octopuses have large and well-developed brains, and are known to be capable of learning, navigating mazes and solving puzzles.

Similarly, decapod crustaceans have been found to be capable of experiencing pain, and animals such as lobsters have advanced central nervous systems. In fact, a 2005 paper on the welfare of animals, by the European Food Safety Authority, designated cephalopods and decapods as category 1 animals, which are animals for which

“The scientific evidence clearly indicates ... that animals in those groups are able to experience pain and distress”.

The Animal Health and Welfare (Scotland) Act 2006 provides a specific exemption for anything that occurs in the normal course of fishing, so I stress that amendment 65 would not have an adverse impact on the fisheries sector or other sectors. They would simply be required to maintain the same safe standards of care as we do for all protected animals.

Making cephalopods and decapods protected animals under the 2006 act would reflect the evidence of their sentience and ensure that those animals would be protected from cruel treatment and inhumane slaughter methods. They are protected by animal welfare legislation in a number of other countries, so the change would simply bring Scotland into line with international best practice, and it would reinforce our reputation as a world-leading country for animal welfare.

If the minister is not willing to support amendment 65 and is not convinced by what I believe is clear evidence, I hope that she will clarify what would be considered to be sufficient evidence to make the change. I also hope that she will assure us that the Scottish Government will make the change as soon as evidence emerges that satisfies her.

I move amendment 65.

Mark Ruskell (Mid Scotland and Fife) (Green)

I welcome amendment 65 from Colin Smyth. I was on the predecessor committee, which dealt with the Animal Health and Welfare (Scotland) Act 2006. We heard a lot of evidence that some species that do not have backbones—invertebrates—can, nevertheless, feel pain and distress, and can show complex behavioural patterns. Amendment 65 would bring us up to speed and into line with European Union and United Kingdom legislation on scientific procedures. That legislation recognises that decapods and cephalopods are sentient and need to be protected under animal welfare legislation. It would be a welcome catch-up. The evidence exists, so we should be bringing such species into line with the protection that exists for vertebrates.

The Minister for Rural Affairs and the Natural Environment (Mairi Gougeon)

The purpose of amendment 65 is to expand the definition of “animal” as it is in section 16 of the 2006 act. However, the 2006 act allows for such a change to be made under regulations. That is why I will not support amendment 65.

A scientific review of the evidence for sentience in cephalopods and decapods will be held in the near future. The outcome of that can then be considered by the UK animal welfare committee and our new Scottish animal welfare commission. If that review illustrates that cephalopods and decapods require such protection, I will, of course, be happy to introduce the necessary consultation and potential statutory instrument for the committee’s consideration under the affirmative procedure.

I will not support amendment 65, so on the basis of what I have said, I ask Colin Smyth to seek to withdraw it.

Colin Smyth

I welcome the Government’s willingness to consider the issue and am happy not to press amendment 65 on that basis. However, I reiterate the point that there is already sufficient evidence to merit an urgent review of the scope of the 2006 act. I understand that, as the minister said, the Department for Environment, Food and Rural Affairs is undertaking research into the sentience of cephalopods and decapods. I hope that it will confirm what other research shows—that they are sentient animals.

I will not press amendment 65, but I hope that we get an update on the outcome of the research from the minister, posthaste.

The Convener

Thank you. Can you confirm that you wish to withdraw amendment 65?

Colin Smyth

Yes.

Amendment 65, by agreement, withdrawn.

Section 1—Prevention of harm to animals: penalties for offences

The Convener

Amendment 67, in the name of Colin Smyth, is grouped with amendment 99.

Colin Smyth

My notes say that amendments 66 and 63 are next, but that could be wrong.

Amendment 67 seeks to create more consistency in use of disqualification orders. During stage 1, a number of stakeholders highlighted the need for greater clarity on when those orders should, or should not, be used.

Amendment 67 seeks to introduce an automatic lifetime disqualification order for those who are sentenced to the maximum penalty for animal cruelty. It calls for the Scottish ministers to create regulations that set out where those orders should otherwise be used, in order to support consistency and proportionality in their use.

I appreciate that a disqualification order is not always appropriate or useful, so my amendment 67 also calls for regulations that would clarify when disqualification orders should be waived, while making it clear that, in such instances, the convicting court must state the reasons for doing so.

Amendment 67 would create a crucial way of achieving transparency. I have chosen to take a largely enabling approach, in order to acknowledge the need for flexibility and to give ministers the opportunity to fulfil prior fishing regulations.

Amendment 99 by Maurice Golden similarly aims to address concerns that have been raised about use of disqualification orders. It calls on the courts to consider a lifetime disqualification for those who receive the maximum penalty, and would require the courts to provide a reason when they do not do so. I do not disagree with Maurice Golden’s amendment; I believe that it would be an improvement on the current law. However, it is not as comprehensive as my amendment 67 and would not do anything to clarify use of disqualification orders outwith the rare instances in which the maximum penalties are issued.

Maurice Golden (West Scotland) (Con)

Amendment 99 would provide a duty on courts to consider a lifetime disqualification from owning animals for people who receive the maximum penalty for relevant offences. In such circumstances, the court will almost certainly be dealing with the worst cases of animal cruelty. As such, I believe there would be an intention among the public—

The Convener

I am sorry, Maurice: I have to stop you. I turned two pages instead of one, earlier. I had two pages stuck together. I hope that it will be the only mistake that I make today. I am going to go back. Colin Smyth was correct to say that I should have called amendment 66. The clerks have now corrected me. I will allow Colin a few seconds to get himself together. I apologise to everyone.

Amendment 66, in the name of Colin Smyth, is grouped with amendment 73.

Colin Smyth

Thank you, convener. The good news is that when we get to amendment 67 I will be able to refer members to my previous comments.

Amendments 66 and 73 aim to make breaches of laws related to licensing subject to new higher maximum penalties. The introduction of five-year sentences for animal cruelty is a key aim of the bill. As the bill stands, that applies to only two offences. All other offences remain subject to only six months’ imprisonment or maximum fines of £5,000.

My amendments 66 and 73 would make the new maximum penalties cover any offences that are created in regulations that are made under section 27 of the Animal Health and Welfare (Scotland) Act 2006. The enabling powers in section 27 are very broad and could underpin the creation of a wide range of very serious offences and unlicensed activities in settings including breeding, animal sanctuaries and pet shops.

The case for higher penalties is as clear in this matter as it is in any in which there is the potential for harm on a mass scale. Such offences could involve profitable businesses, which means that fines should be high enough to act as a deterrent. Amendments 66 and 73 would increase the maximum penalty for those offences, while maintaining the options of summary conviction and lower penalties. The amendments would not mandate a higher penalty, but would simply give flexibility to issue one where appropriate.

I move amendment 66.

The Convener

No other member has indicated that they wish to speak, so I call the minister.

09:15  



Mairi Gougeon

Amendments 66 and 73 would set the maximum penalties that would be available under animal licensing regulations at the same level as the increased penalties that the bill makes available for the most serious unnecessary suffering in animal-fighting offences. Setting a maximum penalty of five years in prison and an unlimited fine for all possible future licensing infringements would not be proportionate. There are other issues.

Amendments 66 and 73 would prevent Parliament from treating each piece of future licensing legislation on its merits, and from considering at that time what the most appropriate penalty regime would be. That would bind the hands of future parliamentary decision making, which would not be proportionate because future licensing regimes are likely to include offences that are of varying degrees of seriousness. It would therefore not be appropriate to dictate that the highest penalties should apply in all circumstances.

For example, the proposed licensing legislation on animal sanctuaries, dog, cat and rabbit breeding and pet sales is currently being drafted, and it seems likely that many of the associated offences will be relatively minor and technical, and will not directly involve harm to animals. They could include failing to renew a licence or not complying with all the conditions of a licence. A maximum five-year prison sentence for someone who fails to renew a dog-breeding licence would clearly be excessive.

Another important point is that, as the committee knows, the bill will introduce the power to develop new fixed-penalty notice regimes, which will cater for a wide range of scenarios. That development will be subject to affirmative procedure and will devise the most suitable penalties for each regime. Licensing legislation is likely to be particularly suitable for future FPN regimes under which, as I have said, the offences might be relatively minor and technical, and might not involve direct harm to animals. It will be possible to develop FPN regimes only for offences for which the maximum penalty is no more than six months’ imprisonment or a level 5 fine.

Setting the maximum penalty for all future licensing legislation at a higher level would deprive the Scottish Government of opportunities to develop such regimes in an area where they would be particularly suitable, and where they would provide a proportionate and cost-effective way of improving compliance with the legislation. That is why I cannot support amendment 66, so I ask Colin Smyth to seek to withdraw it.

Colin Smyth

I believe that the broader and potentially very serious nature of the offences that can be created under section 1 of the bill means that it is important to provide as much flexibility as possible on fines, and to have a more robust and higher penalty, if that is required. The potential for making profit in licensed activities means that higher fines must be on the table so that they are a strong enough disincentive. Sentencing guidelines can be used to clarify whether higher penalties would be appropriate in order to ensure that they are not applied unfairly, just as for offences under sections 19 and 23 of the 2006 act.

However, I acknowledge that someone can be charged with minor breaches of the conditions of licence. Also, the minister said that regulations on dog, cat and rabbit breeding are in the pipeline. Other licensing regulations are due on pet vending, performance animals and so on. The minister has emphasised that more minor offences might be committed in those areas, but I ask her to make it absolutely clear ahead of stage 3 whether the Government will consider stronger penalties as an option as it develops regulations. I will not press amendment 66, but I note that I could bring the issue back at stage 3, if the Government does not do that.

Amendment 66, by agreement, withdrawn.

The Convener

As previously trailed, amendment 67, in the name of Colin Smyth, is grouped with amendment 99.

Colin Smyth

I will keep my comments very short. Amendment 67 seeks to create more consistency in the use of disqualification orders.

I am happy to support amendment 99, in Maurice Golden’s name, which similarly aims to address the concerns that have been raised about the use of disqualification orders. I do not disagree with his amendment; however, my amendment 67 is more comprehensive, as it does not do anything to clarify the use of disqualification orders outwith the rare instances when the maximum penalties have been issued. I will leave it at that, convener.

I move amendment 67.

Maurice Golden

Amendment 99 relates to the provision of a duty on the court to consider a lifetime disqualification from owning animals for those who receive the maximum penalty for relevant offences. In such circumstances, the court will certainly be dealing with the worst cases and, as such, I believe that there will be a public expectation that those involved are not fit to own or care for animals and that the best way to ensure that future offences are prevented is to disqualify those people from animal ownership.

That position is broadly shared by animal welfare organisations such as the Scottish SPCA, the Dogs Trust and OneKind. In such cases, the court would be mandated to consider a lifetime disqualification and, if one is not imposed, to state the reasons for declining to impose one. I believe that that is a balanced approach that allows the court some leeway to take account of exceptional circumstances while retaining the welfare of animals as a consideration in sentencing decisions.

I welcome the spirit in which Colin Smyth lodged amendment 67, but I believe that amendment 99 is a more workable and practical solution to broadly the same issue.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

I will make a technical point. Amendment 67 addresses only the issue of ownership of animals, which would create, if it were to be agreed to—and I am not likely to support it for other reasons—the option for people whom we would not wish to have care of animals to have animals in their care. Restricting the issue to ownership is not an adequate way to achieve the intention of the amendment.

Mairi Gougeon

I completely understand the motivation behind the amendments, and I am absolutely mindful of the concerns that have been raised about whether disqualification orders should be used more frequently and consistently by the courts than they currently are.

However, I cannot support either amendment. They would impose a requirement on the courts to consider a lifetime disqualification from keeping animals for those people who receive the maximum available penalty for animal welfare offences or, in the case of Maurice Golden’s amendment 99, the full range of animal health, wildlife and wild plant offences.

Although there are some fundamental problems with the drafting of both amendments, that is not my principal objection to them. Members will be aware that, under section 40 of the 2006 act, courts are already able to issue a disqualification order to ban someone who has been convicted of an animal welfare offence from keeping or owning animals or from being involved in a wide range of activities that involve animals. That disqualification can be for any time period, up to and including a lifetime ban, which rightly provides the courts with the flexibility to address the particular circumstances of each case and the likely risk that each offender could pose to animals in future.

Further, section 40(5) of the 2006 act already requires the courts to state their reasons if they decide not to make a disqualification order for the relevant offence. That puts the onus on the courts to consider imposing a disqualification order and to then explain any decision not to impose such an order, which encourages the use of such orders where appropriate.

Disqualification orders are routinely raised in animal welfare cases. In recent years, more than half the court cases in which the Scottish SPCA has been involved have resulted in a disqualification order, with most being for five years or more.

I know that the Scottish SPCA has concerns about the apparent lack of consistency in the lengths and types of disqualification orders that the courts have issued in different cases. However, the Scottish SPCA understands and accepts the important and long-established principle that sentencing in any given case is a matter for the courts, which take into account all the facts and circumstances of the case before reaching a decision within the overall legal framework that is provided by the Parliament. Any new requirement for the courts to follow as they undertake their sentencing responsibilities has to be a matter for the judiciary or the independent judicially led Scottish Sentencing Council. If Parliament were to place new obligations on sentencing, that would run the risk of threatening that judicial independence, so such moves should be resisted.

It is worth noting that, if and when the changes to the overall legal framework for sentencing that are proposed in the bill are enforced, the Scottish Sentencing Council will look at the area, with a view to considering the guidelines. That seems an appropriate way to proceed that does not threaten judicial independence.

In saying all that, I recognise that the area is of concern, particularly for Colin Smyth and Maurice Golden, who have lodged amendments. I am willing to work with them to consider whether it will be possible to lodge a stage 3 amendment to section 40 of the 2006 act, in order to strengthen the existing requirement on courts to explain their reasons for deciding not to impose a disqualification order for a relevant offence. If both members are content with that, I invite Colin Smyth to withdraw amendment 67 and Maurice Golden not to move amendment 99, because, for the reasons that I have outlined, I cannot support the amendments.

Colin Smyth

Both amendments in the group try to address a clear issue that exists in the use of disqualification orders, and I believe that both would be an improvement.

My amendment 67 looks to create as much consistency and clarity in the process as possible, while recognising the need for flexibility. Given that the issue is complex and requires proper consultation, I have opted for a largely enabling amendment to allow that work to take place. My aim is to set out clearly when it is appropriate and proportionate to use disqualification orders, right up to an automatic lifetime ban for the most serious convictions. However, I recognise that a one-size-fits-all approach will not work, and my amendment 67 is clear that there must be a mechanism for waiving a disqualification order when appropriate, provided that an explanation is given.

As there are two amendments on the issue, I am happy to discuss changes to the specific wording of my amendment ahead of stage 3. Given the Government’s assurances about the general aim of my amendment and its willingness to discuss the matter further, I will not press amendment 67. However, I make it clear that I intend to lodge an amendment at stage 3, and I hope to work with Maurice Golden and the Government ahead of that stage, so that they can have input into the final wording.

Amendment 67, by agreement, withdrawn.

The Convener

Amendment 68, in the name of Colin Smyth, is grouped with amendments 69 to 72.

Colin Smyth

As with the amendments in group 2, all the amendments in this group aim to expand the offences that are covered by the increased maximum penalties that the bill will introduce. I fully support the introduction of five-year sentences and unlimited fines for the most serious animal welfare crimes but, as it stands, the change will not be applied widely enough.

The amendments in the group seek to expand the offences to which the new maximum penalties will apply. Amendment 68 would increase the maximum penalty for offences relating to mutilation; amendment 69 would do the same for offences relating to the performance of cruel operations on animals; amendment 70 would do so for poisoning offences; amendment 71 would do so for offences relating to the failure to ensure the welfare of animals; and amendment 72 would do so for offences relating to abandonment.

There is clearly scope for serious harm to have been done under all those offences, and the current maximum penalties of six months’ imprisonment or a fine of up to £5,000 simply do not reflect that. Increasing the maximum penalty for such offences while retaining the options for a summary conviction or lower penalties will give flexibility to ensure that proportionate sentences can be issued, depending on the severity of the crime that has been committed.

The amendments shine a light on the diverse nature of cruelty offences, and highlight that not all of them are given the prominence that they should have in sentencing. For example, I cannot understand why abandonment is anything other than a cruelty offence; it should be placed in a higher category than in the 2006 act. The bill brings in fixed penalties for lesser offences, but a fixed penalty for abandonment, for example, would be totally unacceptable, given the potentially serious outcome of such an offence.

If the Government is not prepared to accept amendments that would bring in those stronger sentences for a wider range of offences, I hope that consideration might be given to the question whether an offence such as abandonment should still be seen as a lower-level offence in the categorisation of offences.

I move amendment 68.

09:30  



Mairi Gougeon

By taking action to increase the penalties for the worst forms of animal cruelty, the Government is setting out clearly our commitment to properly protect the welfare of animals in Scotland.

We are taking bold action with the bill. If passed, it could mean imprisonment for up to five years for those who commit the most extreme offences, which involve unnecessary suffering, animal fighting and the worst sorts of wildlife crime. Fortunately, such horrific cases are rare, but they rightly attract considerable public interest as well as concern that suitable penalties should be available.

I acknowledge that some animal welfare groups believe that all animal welfare offences, of any sort, should attract the strongest possible penalties. However, as we take bold action to increase penalties, it is vital that we do so in a way that does not undermine long-established legal principles, which include the need for proportionality between the offence and the sentence.

Before setting out why it is not proportionate to include all those offences within the new penalty regime, I highlight from the outset that the most important feature of the 2006 act is that, if the circumstances of any offence involve unnecessary suffering, they can be prosecuted under section 19, which sets out the maximum penalties available under the act. That important feature already provides robust protection across the board. As we clamp down on animal cruelty, I am keen to ensure that we retain the long-established and proportionate two-tier approach of lesser offences continuing to be subject to a lesser penalty.

The offences in sections 20, 21, 22 and 29 of the 2006 act are rarely prosecuted. I completely understand that their terminology is very emotive, but it is important that we consider that what that amounts to in practice tends to relate to some of the lesser, more technical offences.

For example, a more accurate description of the offence that is described as “mutilation”—a very emotive term—is that it relates to the carrying out of any procedure that interferes with sensitive tissues or the bone structure of an animal. That might include routine procedures such as micro-chipping or ear tagging, which are permitted by regulations that control the way in which they are done. Accordingly, a failure to carry out procedures in accordance with the regulations is an offence under section 20, which could include incorrectly inserting an identification ear tag in a farm animal, for example.

Regarding abandonment, which Colin Smyth mentioned, an offence under section 29 could include temporarily leaving an animal unattended without making adequate provision for its welfare, which could include situations in which no harm is caused to the animal. In those circumstances, a five-year prison sentence would, quite clearly, be disproportionate.

The offence in section 24 of the 2006 act of failing to take reasonable steps to ensure that the welfare needs of an animal are met

“to the extent required by good practice”

is most commonly used in prosecutions for behaviour that might affect the welfare of an animal but which does not amount to causing unnecessary suffering. That can often occur due to ignorance or misunderstanding, rather than intentional neglect or cruelty. That distinction is very well understood and accepted by the enforcement authorities, which include the Scottish SPCA, local authorities and the Animal and Plant Health Agency. They know that, if the circumstances of an offence involve unnecessary suffering, they can be prosecuted under section 19 of the 2006 act, and can attract the higher penalty.

Although the offences that we are considering have the potential to involve harm to animals, it is vital that our penalty regime is proportionate. In any case, where unnecessary suffering is actually caused, the new, higher maximum penalties will already be available.

Another important point to remember is that, if Colin Smyth’s amendments in this group are agreed to, they would—as was the case with amendments 66 and 73, which we discussed earlier—prevent ministers from using the powers in section 2 that relate to fixed-penalty notices, because FPNs can be exercised only in relation to offences for which the maximum penalty on conviction does not exceed six months’ imprisonment. Colin Smyth’s amendments would remove our ability to deal with those lesser offences, so I cannot support them, and I urge the committee not to support them, either.

The Convener

I invite Colin Smyth to wind up.

Colin Smyth

Strengthening penalties for the most serious animal welfare crimes is one of the key aims of the bill. However, in my view, if any serious crimes continue to carry a maximum sentence of just six months, that aim will not be achieved. It does not make sense that some animal welfare crimes will carry a sentence of up to five years in prison or an unlimited fine, while offences such as that of mutilation, which can be severe, will carry a maximum sentence of six months or a fine of £5,000.

My amendments would not mean that minor crimes under the provisions in question would have to be dealt with differently—when a short sentence or a small fine was appropriate, that would still be what was issued. They would simply mean that, when a higher sentence was needed, the scope would exist to issue one. As I indicated in relation to amendments 66 and 73, clear guidance would need to be provided to clarify when higher penalties would be appropriate to ensure that they would be used appropriately.

However, I recognise that the most severe offences can be charged on the ground of causing unnecessary suffering. The challenge is ensuring that that would continue to be the case and that such offences would become subject to the new maximum sentence. It is equally important that we ensure that offences such as abandonment are not covered only by the issuing of fixed penalties; I do not share the minister’s view that abandonment can be seen as a relatively minor breach of the law. I would therefore welcome further discussion with the Government about how that can be achieved.

On that basis, at this stage, I will not press amendment 68 or move my other amendments in the group, given that we have a period of time to discuss the issue before stage 3.

Amendment 68, by agreement, withdrawn.

Amendments 69 to 73 not moved.

Section 1 agreed to.

Sections 2 and 3 agreed to.

Section 4—Fixed penalty notices for offences relating to animal health

The Convener

Amendment 3, in the name of the minister, is grouped with amendments 4 and 5.

Mairi Gougeon

Section 4 of the bill at introduction provided for a general power to make provision in regulations for fixed-penalty notices to address animal health offences. The aim is to provide an additional level of enforcement that could be delivered without the intervention of Scottish courts while still providing a meaningful penalty for those who breach animal health rules.

The bill contains provisions to allow the Scottish ministers to create such a scheme for minor and technical animal welfare offences. We consider that similar provisions should be available for appropriate animal health offences. That uniformity in approach will provide clarity and consistency and send an important message that we expect all animals in all circumstances to be protected from harm. We held a consultation last autumn to test those proposals further, and the majority of respondents to it were supportive of the principle behind section 4.

Amendment 4 sets out the detail of how those powers will work in practice. The provisions are subject to strict limits but also allow sufficient flexibility to take account of any future changes to animal health legislation. Amendments 3 and 5 extend the provisions to include offences under the Bees Act 1980 and offences in any order that are made under that act. That ensures that fixed-penalty notices can be used, where appropriate, in respect of offences relating to the control of diseases of kept bees.

Prior to the bringing forward of secondary legislation to introduce a fixed-penalty notice scheme, further stakeholder consultation will be undertaken to help develop the details of the scheme and the range of offences to which it would apply. Any future regulations that make provision for the issuing of FPNs will be subject to the affirmative procedure and, as such, scrutinised by Parliament before being made, as is the case with animal welfare FPN provisions.

I move amendment 3.

Mark Ruskell

I have a brief question. I should probably declare an interest, as I am a beekeeper. In relation to the Bees Act 1980, as I understand it, amendment 3 increases the level of fine on summary conviction from level 3, which is £3,000, to level 5, which is £5,000. The minister outlined the issues about disease control. Does the Scottish Government have any concerns that compliance with the Bees Act 1980 is not high?

The Convener

I invite the minister to address that question, and to wind up.

Mairi Gougeon

I would be happy to get back to the committee with more information on Mark Ruskell’s question. Certainly, I have not been made aware of any particular issues with compliance with that act. Nonetheless, it is important that compliance is covered by any regime that we bring in to ensure that we have it.

Amendment 3 agreed to.

Amendments 4 and 5 moved—[Mairi Gougeon]—and agreed to.

Section 4, as amended, agreed to.

Section 5—Wildlife and Countryside Act 1981: penalties for offences

The Convener

Amendment 6, in the name of the minister, is in a group on its own.

09:45  



Mairi Gougeon

In the course of considering the bill’s provisions, it was brought to my attention that there is an anomaly in section 15A(2) of the Wildlife and Countryside Act 1981, which governs the use of pesticides and biocides. The purpose of amendment 6 is to address that anomaly by extending the defence in section 15A(2) of the 1981 act to include European Union regulation (EC) 1107/2009, which governs the use of plant protection products—in essence, to extend the legitimate defence to the offence regarding plant protection products.

Currently, section 15A(3) of the 1981 act empowers the Scottish ministers to prescribe, by order, ingredients of pesticides that it is an offence to possess. The power was used to make the Possession of Pesticides (Scotland) Order 2005, which prescribes a list of eight active ingredients that it is an offence to possess. Although the 2005 order refers to pesticides, the banned ingredients relate to substances that can be used in plant protection products.

PPPs are used to protect plants from pests, diseases and weeds and might be agricultural pesticides or biocidal products that control harmful or unwanted organisms through chemical or biological means. Examples of biocides are disinfectants, food preservatives, hand sanitiser and insect repellents.

Under section 15A(2) of the 1981 act, a defence is available to the offence of possession of pesticides

“if the person shows that the possession of the pesticide was for the purposes of doing anything in accordance with—

(a) any regulations made under section 16(2) of the Food and Environment Protection Act 1985 (c. 48), or

(b) Regulation (EU) No 528/2012 of the European Parliament and of the Council.”

Let me give an example. Some of the ingredients in the 2005 order can still be used in rodenticides, so a professional, trained pest controller could show that their possession of a product was in accordance with the regulations, if they were using the product for its permitted purpose and in full compliance with the conditions that governed its use.

Amendment 6 will extend section 15A(2) of the 1981 act to ensure that a defence is also available if the person can show that the offence was for the purpose of doing anything in accordance with regulation (EC) 1107/2009 of the European Parliament and Council.

Amendment 6 will have no immediate effect, because the 2005 order does not currently list any substances that are approved for use in plant protection products under the EU PPP regulations. However, our adding a reference to the PPP regime at this time will enable us to add any substances that are covered by that regime to the 2005 order through secondary legislation, should the need arise. That is important, because it will allow a fast policy response, should it be discovered that new pesticides are being used for wildlife crimes, for example.

Amendment 6 will also allow us to add pesticides to the 2005 order while preventing the unintended consequence of criminalising a person who legitimately uses a plant protection product under the EU plant protection regime.

I move amendment 6.

Amendment 6 agreed to.

The Convener

Amendment 74, in the name of Claudia Beamish, is grouped with amendments 75 to 78, 95 and 96.

Claudia Beamish (South Scotland) (Lab)

I will speak to my amendments and, briefly, to Mark Ruskell’s amendment 95.

My amendments in this group are intended to ensure that wildlife crimes and crimes against wild mammals can be considered for vicarious liability prosecution, where there is evidence of a prosecutable crime. It is important that the landowner or occupier who has the legal right to carry out management activities on the land can be prosecuted under vicarious liability. That might act as a deterrent to those few landowners who do not respect the law. The amendments apply to offences that are found in the Wildlife and Countryside Act 1981 and the Wild Mammals (Protection) Act 1996.

I will talk about my amendments briefly. They would mean that vicarious liability would be applicable to various offences under sections of the 1981 act, including those on the “Sale etc of live or dead wild birds, eggs etc”; the “Registration etc of certain captive birds” and their eggs; the “Protection of captive birds”, which relates to ensuring that they have a sufficient cage size; the “Protection of certain wild animals”, which includes the protection of shelters and the prevention of poaching; the “Protection of wild hares etc” in the close season; the “Prohibition of certain methods of killing or taking wild animals”; the “Prevention of poaching: wild hares, rabbits etc”; the “Protection of wild plants”; the “Prohibition on keeping etc of invasive animals or plants”; and the “Prohibition on sale etc of invasive animals or plants”. Finally, the amendments would also cover offences under section 1 of the Wild Mammals (Protection) Act 1996, which lists the ways in which causing unnecessary suffering to any wild mammal can occur.

I took the decision not to include marine mammals in the list not because they are any less precious, but because ownership of them is such a complex issue, as they are at sea. The minister has now indicated that she will lodge amendments at stage 3 in relation to the killing of seals. Therefore, it might be appropriate to discuss the application of vicarious liability to that with her between stages 2 and 3. However, I ask the minister whether at this stage she is in a position to comment on a possible Scottish Government amendment, and how that can be consulted on and scrutinised by our committee.

I also decided that it was not appropriate to include the protection of deer in my amendments, as deer management will continue to demand appropriate culling. Therefore, in my view, it would be too complex to include them in the section that is being considered on vicarious liability.

I have made individual amendments for each species—and I hope that that was the correct way to do it—to give members and the minister the choice as to which ones they wish to take forward, if any. If passed, the amendments should send a strong statement of deterrence across Scotland to all those concerned.

I will listen with care to Mark Ruskell’s remarks on his amendment in this group.

I move amendment 74.

Mark Ruskell

Amendment 95 would introduce vicarious liability for offences relating to badgers. I appreciate and support Claudia Beamish’s attempt to apply vicarious liability more widely. However, I believe that the case for extension is strongest for badgers. Vicarious liability is about landowners taking responsibility for the actions of those who are working on their property, and badgers face a huge amount of persecution through the destruction of their setts.

I have heard of a number of cases—including some in Fife, which is in the region that I represent—in which it has been difficult to pin down liability because there are contractors, sub-contractors, agents and landowners all passing the buck. Perpetrators can get away with damaging badger setts because landowners are not liable and penalties are too low. In one case that took place in my region, a factor was simply given a warning letter that was written by the court following the damage of a sett.

Badger setts are being damaged and destroyed through building works or forestry operations, and I have heard of horrific cases in which tunnels have been blocked by soil, rocks, trees and brush, which has then caused the animals below to suffocate.

There are also examples of estates on which multiple “doughnuts” have been discovered. A doughnut is a large circular area of disturbed ground that is typically dug by a badger when it is caught in a snare and dies while it is struggling to break free. In one case, eight doughnuts were found on an estate, stretching back over a number of years. The landowner had clearly avoided taking action to prevent that from happening time after time.

Badgers are territorial animals that settle in particular areas. Their presence is easily identifiable because of their visible setts; it is virtually impossible for a landowner not to know that badger setts are there. Law-abiding landowners have nothing to fear from vicarious liability being applied to offences relating to badgers. However, those who allow sett destruction and persecution to take place need to know that the buck stops with them.

Mairi Gougeon

Vicarious liability was widely discussed during stage 1. I said at that point that, although I had not been able to identify any further offences to which I thought it would be useful or appropriate to extend vicarious liability, I would absolutely welcome the committee’s suggestion on any particular offences that members felt warranted such an extension.

I have given close and careful consideration to all the amendments that Claudia Beamish and Mark Ruskell have lodged, and I have a number of significant concerns with them, which I will lay out for you now.

Amendments 74 to 77 would extend vicarious liability to a range of offences, but I simply do not believe that the evidence is there to justify that extension. When vicarious liability was introduced under sections 18A and 18B of the Wildlife and Countryside Act 1981, it was because we believed that there was clear evidence that demonstrated the need for it in relation to offences against wild birds and their nests and eggs, and the use of banned pesticides. Extending vicarious liability to poaching, for example, would not make sense, because it is often the landowner or manager who is the victim of that kind of crime.

Likewise, I have heard no compelling reason why vicarious liability is needed for offences that relate to the protection of wild plants or the keeping or sale of invasive animals, and I have heard nothing that demonstrates the type of employer-employee relationship that would make it reasonable to hold the employer criminally liable for the acts or omissions of their employee in relation to such offences. I do not feel that we have evidence to show that landowners and managers have been complicit in those types of crimes.

We need to remember that vicarious liability is a type of strict liability. Where vicarious liability applies, it is sufficient to show that an employee committed an offence in the course of their employment for their employer to be held criminally liable for the acts or omissions of their employee, unless they are able to demonstrate a due diligence defence. It would therefore be a significant step to open up vicarious liability to other offences and extend the situations in which it applies.

Amendments 78, 95 and 96 open up the possibility of a vicarious liability prosecution to be taken against owners or occupiers of land who have a legal right to provide “management activities” on that land. “Management activities” has a wide-ranging and non-exhaustive definition in amendment 78 and opens up the possibility of a vicarious liability prosecution being brought against a host of individuals who would not be liable under the existing provisions in the 1981 act. Although we discussed during stage 1 the possibility of extending the offences to which vicarious liability could be applied, there were no discussions on widening the definition of to whom it could be applied. It would be inappropriate to make such far-reaching changes without first engaging in proper consultation or undertaking full impact assessments so that all the implications and ramifications of such a change could be fully understood.

It is also important to remember that it is already an offence for someone to knowingly cause or permit an offence under sections 6, 7, 9, 11 and 13 of the 1981 act and sections 1 to 4 of the Protection of Badgers Act 1992. Admittedly, that does not go as far as vicarious liability, but it means that, should an employer or land manager instruct an employee to commit one of those offences, they would be liable for that offence.

Having said all that, I think that there are some things in amendments 78, 95 and 96 that we could consider ahead of stage 3, but I cannot support the amendments as they are currently drafted.

Claudia Beamish raised a point about seals and referred to the letter that I sent to the committee about lodging a stage 3 amendment in relation to seals. This is not an ideal situation and that is not something that I would ordinarily do. In that letter, I offered the committee the opportunity to discuss this further with officials, if that is something that the committee wishes to do. I hope that you take up that offer so that officials can give you more detailed information about the potential for that amendment.

10:00  



Finlay Carson (Galloway and West Dumfries) (Con)

We strongly disagree that the new provisions of vicarious liability add anything to existing laws. We do not accept the extension in the bill because it would appear to make the landowner liable for the actions of third parties, irrespective of whether he or she has paid due care and attention.

We accept the legal principles of liability, and agree that landowners can and should be held responsible in certain circumstances, but these amendments appear to make the landowner liable for the actions of third parties, irrespective of whether he or she has taken due care and attention. We will not support the amendments.

The Convener

Minister, I give you the opportunity to come back on any of that.

Mairi Gougeon

I am happy to move on, convener.

The Convener

I call Claudia Beamish to wind up and press or withdraw amendment 74.

Claudia Beamish

I thank those members who have contributed to the debate. If it is appropriate, convener, before I tell the committee my decision on my amendments, I want to comment briefly on Mark Ruskell’s amendment 95.

A landowner would definitely know about the existence of badger setts on their land, or they could easily be informed of it by those who manage their land. As Mark Ruskell said, there have been some serious cases of sett destruction. I would simply state that I support amendment 95.

I note what the minister said about poaching and invasive plants, and I take that point on those amendments.

As amendments 78 and 96, on those with the legal right to carry out management activities, widen definitions, I do not want to move them today because the minister said that consultation will be needed. On the section on traps and snares, I hope that it might be possible for the minister to consider something in relation to vicarious liability before stage 3. Convener, is it possible for the minister to comment on that, or have I left it too late?

The Convener

I am happy for the minister to answer that.

Mairi Gougeon

That is one area that I would certainly be happy to discuss with Claudia Beamish ahead of stage 3.

The Convener

Claudia, do you wish to press or withdraw amendment 74?

Claudia Beamish

I wish to withdraw it.

Amendment 74, by agreement, withdrawn.

Amendments 75 to 78 not moved.

The Convener

Amendment 7, in the name of the minister, is grouped with amendment 9.

Mairi Gougeon

It was brought to my attention that the bill needed to be updated to bring it into line with recent amendments to section 21 of the Wildlife and Countryside Act 1981, which provides the penalties for the offences in that act. Without this update, there would be a discrepancy in the section that provides penalties for all the offences in part 1 of the 1981 act.

After the bill was laid in Parliament, in September last year, the Wildlife and Countryside Act 1981 was amended by secondary legislation in order to enact the new EU invasive alien species regulations. The Scottish statutory instrument made changes to some sections in the 1981 act concerning the control and release of invasive non-native species, and it inserted a new offence of contravention of regulation (EU) 1143/2014, which covers the prevention, management, introduction and spread of invasive alien species.

As the bill was drafted prior to the SSI being laid, it does not include penalties for the offences inserted by those regulations. The present drafting of the bill is based on how section 21 of the 1981 act was set out prior to its being amended by the 2019 regulations. If these amendments were not made, the provisions would not make sense.

At the same time, we will increase the maximum penalties for the new offences so that they attract the same maximum penalties as the similar existing offence in section 14 of the 1981 act, which also deals with invasive alien species. That will allow sheriffs to issue equivalent sentences in cases in which multiple offences have been carried out across the 1981 act.

I move amendment 7.

Amendment 7 agreed to.

The Convener

Amendment 8, in the name of Claudia Beamish, is grouped with amendments 10, 79 to 90, 11 and 91.

Claudia Beamish

These amendments are about increasing maximum penalties and focus on offences relating to breeding sites and resting places, as found in section 1 of the Wildlife and Countryside Act 1981, and offences relating to illegal pesticides, as found in section 15A of the 1981 act.

I thank RSPB Scotland, the Scottish Wildlife Trust and, for their evidence on these amendments, Scottish Environment LINK and the Bat Conservation Society. The designated offences would now have a new penalty on summary conviction of imprisonment for a term not exceeding 12 months or a fine not exceeding £40,000, or both, or, on conviction on indictment, of imprisonment for a term not exceeding five years or a fine, or both.

Members may note that amendment 10 differs from the rest in terms of sentencing. I lodged the amendment in error, for which I apologise, and I will not move it.

The offences that I wish to include relate to the intentional or reckless damaging, destroying or obstructing of nests that are habitually used; taking or destroying eggs of certain wild birds; possession of certain dead wild birds or their eggs; disturbing nest building or nests with eggs or young, or birds with dependent young; disturbing lekking, which I found out is competitive displays to attract mates; harassing any wild bird in schedule 1A to the 1981 act, which is a list of specific birds of prey; damaging, destroying or obstructing the shelter of certain wild birds; disturbing certain wild animals while they are occupying shelter; possession of pesticides containing one or more proscribed active ingredients; and knowingly causing or permitting the possession of said illegal pesticides.

In its stage 1 report, the committee recommended that the Scottish Government

“reconsiders its approach to ... resting places and breeding sites”,

as crimes involving those can “have equivalent outcomes”. The report says that

“the destruction of a habitat could be as fatal as directly harming or killing an animal.”

The unlimited fine is vital, because there are cases in which offenders can benefit financially from not following the law, through the development of land and so on, and in which providing alternative roosting sites would have a greater cost than the existing fine.

I appreciate the Government’s comments on a potential further amnesty on illegal pesticides. However, I consider that enough time has passed since those substances were banned and that the illegality of their possession, or of causing someone else to possess them, is well known. Those should be considered serious crimes, with a penalty that would properly deter. Such crimes can be a source of immense suffering in wild animals, and an increase in penalties will appropriately recognise their sentience and help to better deter the known harm to them.

I move amendment 8.

Mairi Gougeon

Given the extremely toxic nature of some of these substances, the continued illegal use of pesticides to poison animals poses a danger not only to domestic and wild animals but also to human health. As Claudia Beamish highlighted, during stage 1 the committee raised the matter of the appropriate level of penalty for the possession of banned pesticides. I said then that I was open to considering an increase to the maximum penalty.

Following careful consideration of the evidence, I am happy to support amendments 8 and 11, to increase the maximum penalties for the possession of proscribed pesticides to 12 months’ imprisonment or a £40,000 fine, or both, by summary procedure, and five years’ imprisonment or an unlimited fine, or both, by solemn procedure.

Turning to the amendments on the disturbance of nests and habitats, I will first make a technical comment. I draw the committee’s attention to the fact that, as drafted, the amendments do not repeal the penalties for the offences that are set out in the bill as introduced. Therefore, should the amendments be agreed to as they are currently drafted, the offences will have two conflicting maximum penalties—which would, of course, make the legislation unworkable.

On the amendments’ purpose, I share Claudia Beamish’s concerns about the impact that offences involving the disturbance of nests and habitats can have on wildlife, which is why I initially proposed to increase the maximum penalties for those offences to 12 months’ imprisonment or a £40,000 fine, or both. However, I appreciate that some committee members, as well as many other MSPs and stakeholders, hold the view that those proposals do not go far enough and that the impact of some of the offences can be significant, thereby warranting a higher penalty.

I am willing to listen to, and work with, the committee and Parliament to ensure that the bill affords the best protection for our wild and domestic animals. Although I cannot support all the amendments in the group as they stand, due to the technical issue that I have highlighted, I am prepared, after listening to the arguments that have been put forward, to give further consideration to the amendments relating to the disturbance of nests and habitats ahead of stage 3.

I support amendments 8 and 11, and I give Claudia Beamish a commitment that I will work with her on drafting an amendment for stage 3 should she be willing to not move the other amendments in the group.

Claudia Beamish

I am relieved to hear what the minister has said about illegal pesticides. The time has come to recognise that there is no excuse for storing or making use of those chemicals, which are dangerous to animals and our environment. I therefore press amendment 8.

I will be pleased to work with the minister and other members and stakeholders who have expressed an interest in and concerns about nests and resting places. I recognise that we will need to look again at the amendments before stage 3, because those that do not repeal previous provisions would, of course, not be appropriate—I thank the minister for her useful comment, as I was not aware of that. I will, therefore, not move those amendments today.

Habitats and resting places are fundamentally important to many animal species, and I look forward to working with the minister at stage 3 to provide better protection to animals.

Amendment 8 agreed to.

10:15  



Amendment 9 moved—[Mairi Gougeon]—and agreed to.

Amendments 10 and 79 to 90 not moved.

Amendment 11 moved—[Claudia Beamish]—and agreed to.

Amendment 91 moved—[Claudia Beamish].

The Convener

The question is, that amendment 91 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Wells, Annie (Glasgow) (Con)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Carson, Finlay (Galloway and West Dumfries) (Con)
Beamish, Claudia (South Scotland) (Lab)

Against

Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
MacDonald, Angus (Falkirk East) (SNP)

The Convener

The result of the division is: For 4, Against 3, Abstentions 0.

Amendment 91 agreed to.

Section 5, as amended, agreed to.

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

The Convener

Amendment 92, in the name of Colin Smyth, is grouped with amendments 93 and 94.

Colin Smyth

All the amendments in the group would increase the maximum penalties for interfering with or damaging a badger sett, in order to bring them into line with the penalties for harming a badger directly. Interfering with a badger sett can cause at least as much—and often more—damage as killing a badger directly, because it can cause elongated suffering and more drawn out and painful deaths, and it can harm entire groups of badgers and risk local extinction. The disruption of badger setts causes badgers to be crushed, suffocated and drowned, and dependent cubs are left vulnerable when adults desert damaged setts. Because the fines for such offences are currently so much lower than those for killing a badger directly, people can often choose to damage setts with the aim of killing badgers. Indeed, there is no reason for damaging a badger sett other than to harm the animals, and that needs to be reflected in the penalties.

It is clear that the current penalties are not acting as a strong enough deterrent. Scottish Badgers receives up to 100 incident reports a year, about 80 per cent of which can be considered potential offences, and the majority of those are offences against setts rather than against badgers. As drafted, the amendments would retain the option of summary convictions and lower penalties. There is a case to be made for removing that option altogether, but, in the interests of compromise and seeking agreement on the issue, I am not suggesting that we do so at this point. If the amendments were to be agreed to, a great deal of flexibility would still be available in how such cases could be dealt with, depending on the severity and impact of the crime, which is an important point.

Increasing the maximum penalties for such crimes and bringing them into line with the penalties for offences against the animal will reflect the significant scope for damage from such crimes, and it will send a clear message that disrupting a badger sett is a serious wildlife offence. That will ensure that serious crime receives appropriate penalties, and it will act as a deterrent for those who see badger setts as an easy target compared with the animals themselves.

I move amendment 92.

Mark Ruskell

I very much welcome amendment 92. We need to see the increase in penalties for the destruction of badger setts as a package alongside the provisions on vicarious liability, and we must ensure that the penalties are in line with those for other offences.

It is worth bearing in mind that some of the landowners and others who are responsible for sett destruction are particularly wealthy. We are talking about commercial and corporate interests. Even if we can get a conviction—which, again, raises the issue of vicarious liability—the fines that are attributed for sett destruction are so low that, in many cases, they would barely register on a business’s balance sheet. We need to increase those penalties and vicarious liability in order to bring an end to the destruction of badger setts, which is happening across Scotland.

The Convener

As no other members have indicated that they wish to speak, I invite the minister to respond.

Mairi Gougeon

As I said when I was considering Claudia Beamish’s earlier amendments, I absolutely appreciate the impact that offences involving the disturbance of habitat and resting places, including badger setts, can have on wildlife. That is why I proposed at the outset of the bill to increase the maximum penalties for those offences to 12 months’ imprisonment or a £40,000 fine, or both.

I have listened to the concerns that have been raised today, and I am prepared to give Colin Smyth’s amendments 92, 93 and 94 further consideration ahead of stage 3. I would simply ask him, as I asked Claudia Beamish, to withdraw or not move the amendments in the group, and I will look to work with him on an amendment for stage 3.

The Convener

I call Colin Smyth to press or withdraw amendment 92.

Colin Smyth

It is simply not right that crimes against badger setts are not subject to the same penalties as crimes against animals when, in reality, crimes against setts are crimes against animals. The amendment would close the loophole that allows people to kill an entire group of badgers in a cruel and inhumane way with less severe consequences than if they had killed an individual badger.

Amendments 92 to 94 would retain the option of summary conviction with lower maximum penalties, so that, where appropriate, such crimes could continue to be dealt with as they currently are. The amendments would, however, allow for stronger penalties to be applied where necessary, as we know that there are circumstances where that is necessary. The amendments do not go any further than bringing an offence against badger setts into line with offences against badgers, and doing so would reflect the true impact of such crimes.

I take on board what the minister says, although I am happy with the text of my amendments. I want to make very clear that the aim of any amendment at stage 3 must be to bring crimes against badger setts into line with crimes against the animal. I am happy to work with the Government on a stage 3 amendment in order to resolve any wording issues, so I will not press or move the amendments at this stage. However, I certainly intend to pursue the matter at stage 3.

The Convener

I put on record my support for the policy intention of the amendments. I spoke on the matter in the stage 1 debate, and I agree with all the comments that have been made about the impact of destruction of badger setts on the animals.

Amendment 92, by agreement, withdrawn.

Amendments 93 and 94 not moved.

Amendment 95 moved—[Mark Ruskell].

10:30  



The Convener

The question is, that amendment 95 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Ruskell, Mark (Mid Scotland and Fife) (Green)
Beamish, Claudia (South Scotland) (Lab)

Against

Wells, Annie (Glasgow) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Carson, Finlay (Galloway and West Dumfries) (Con)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 95 disagreed to.

Section 6 agreed to.

Sections 7 and 8 agreed to.

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

Amendment 96 not moved.

Section 9 agreed to.

Section 10 agreed to.

After section 10

The Convener

Amendment 12, in the name of the minister, on wildlife offences and fixed-penalty notices, is grouped with amendment 64.

Mairi Gougeon

The aim of the bill is to create a suite of measures to deal with offences against animals. The bill at introduction contained provisions to allow the Scottish ministers to create a fixed-penalty notice scheme for minor and technical animal welfare offences.

Amendment 12 seeks to introduce the same provisions, but for wildlife offences, bringing the protections of wildlife into line with those of domestic animals. It will enable the Scottish Government to introduce secondary legislation in future to create a fixed-penalty notice scheme for minor and technical wildlife offences. The amendment limits the offences to which fixed-penalty notices can be applied to those that carry a maximum penalty of six months’ imprisonment or a level 5 fine.

The bill already contains provision to confer a power on the Scottish ministers to make regulations for the use of fixed-penalty notices in relation to animal welfare offences.

The merits of that regime were discussed at stage 1, and the committee welcomed the proposal. Amendment 12 seeks to extend the agreement to wildlife offences. I note again that, before laying secondary legislation to introduce an FPN scheme, we will undertake further stakeholder consultation to help to develop the details of the scheme and the range of offences that it will apply to.

Any future regulations that make provision for the issuing of fixed-penalty notices will be subject to the affirmative procedure and, as such, will be scrutinised by the Scottish Parliament before being made, as is the case with the existing animal welfare FPN provisions.

I move amendment 12.

Amendment 12 agreed to.

The Convener

Amendment 1, in the name of Mark Ruskell, is grouped with amendment 98.

Mark Ruskell

Amendment 1 follows up one of the many recommendations from Professor Poustie’s review that we are discussing today. It recognises that the causes of violence against animals may be deep-rooted in a person’s upbringing and that their lack of empathy could be a result of fear and violence in their life.

Rehabilitation and reintegration into society are important outcomes for the criminal justice system, but no empathy training courses are available in relation to animal welfare offences, despite intervention programmes such as the SSPCA’s animal guardians programme being available for young people who are starting to show offending behaviour. Courts want to apply restorative justice approaches. There was a recent case where two young people had put a lizard into a kitchen blender and killed it. The judge wanted to send them on an empathy course, but unfortunately no courses were available.

My amendment 1 would simply require ministers to

“take such steps as appear to them to be required”

to facilitate the development of programmes. That could involve providing funding and guidance, as is specified directly in Claudia Beamish’s amendment 96, but under my amendment 95 it would be at the minister’s discretion.

I move amendment 1.

Claudia Beamish

Amendment 98 would place on the Scottish Government an obligation to ensure that guidance was developed and funding made available as appropriate to enable sentence disposals of empathy training and restorative justice services to be available to the courts for use where it is judged to be appropriate for those who are convicted of animal crimes under the listed acts. Such programmes could well break what have in some cases been intergenerational negative and inappropriate behaviour patterns towards animals. The amendment requires the guidance to be laid before Parliament.

My other amendments that we have discussed have concerned deterrence and dissuasive sentencing. Amendment 98 proposes an approach that could be used alongside sentencing to develop empathy in offenders, which may prevent future offending and thereby better protect animals.

We must recognise that violence against animals and violence against humans can on occasion be linked. That is addressed in other amendments, such as those that are about letting other groups and statutory organisations know of an offender’s behaviour.

Amendment 98 could mean that the offender has to face the reality and consequences of his or her actions in order to better understand the wrongness of those actions. Members will remember that, at stage 1, parallels were raised with speeding offences, but there are also parallels with domestic abuse offenders, who have in some cases been able to take part in the Caledonian system while in prison. That has been part funded by the Scottish Government.

I thank OneKind for its work on the issue and its help with amendment 98. Animal cruelty convictions must effect changes in attitudes. OneKind has highlighted the Scottish Government’s 2007 report, which suggested that, in some cases, community sentencing can have more effect in preventing recidivism. OneKind is working in that area and, if amendment 98 were agreed to, it hopes to promote the development of a suitable programme or course.

I support Mark Ruskell’s amendment 1 and how it relates to the discretion that the Scottish Government and the courts could have in relation to restorative justice and empathy training.

The Convener

As no other members have indicated that they would like to speak on the amendments in this group, I will go to the minister.

Mairi Gougeon

At first glance, amendments 1 and 98 look similar, but they differ in the detail. After careful consideration, I cannot support them for three main reasons. The first and primary reason is that I understand that local authorities already have the powers to organise a range of community payback order requirements, and the courts already have the ability to order such requirements as part of sentencing.

Secondly, I am not sure that it is necessary, or that it would be a justifiable use of resources, to oblige the Government to make community payback order programme requirements of the detailed type that is described available to all offenders who are convicted of the full range of animal welfare or wildlife offences.

Thirdly, I cannot support the amendments because of the extent to which they could constitute interference with the long-established principle that Government should not interfere in judicial decision making.

To take the first point, we should consider what the community payback orders that are run by local authorities involve at present. Before a sheriff or judge can sentence someone to a community payback order, they must first obtain a report from a criminal justice social worker. That report will give the sheriff or judge background information on the person, such as any offences that they have previously committed, their risk of offending again, their health and living situation and so on.

The criminal justice social worker is assigned by the local authority to supervise the different requirements of the community payback order. Nine different requirements can be imposed, and it is for the sheriff or judge to decide which ones should be selected for each sentence. Examples of possible requirements are an unpaid work requirement, a drug treatment requirement or a programme requirement, which is what we are considering here.

If a programme requirement is attached to the community payback order, the person who is convicted of the offence could be ordered to attend a programme arranged by a social worker. Such programmes deal with offending behaviour and can cover a range of issues, but there is very little evidence that specific animal welfare empathy programmes are beneficial in such circumstances. Without that crucial evidence on effectiveness, I am not convinced that it would be a good use of national or local authority resources to develop and provide the highly specific programmes that amendments 1 and 98 would require.

The powers already exist for local authorities to develop relevant programmes on a non-statutory basis, and it could be argued that that is a more appropriate approach. Evidence could be gathered on the impact on the organisations involved and their capacity to deliver, as well as on the priority and effectiveness of such measures. Such programmes would be designed and offered by local authorities in collaboration with partners, and their use would remain a matter for the courts, which consider the individual circumstances of each offender.

Such programmes could already include the restorative justice approach that is referred to in Claudia Beamish’s amendment 98, whereby the offender and the victim—or, in animal-related cases, the animal’s owner or other representative—agree to participate voluntarily to understand and acknowledge the harm that the offence has caused. In that regard, the Scottish Government has already set out a clear vision for having restorative justice services, with the interests of victims at their heart, widely available across Scotland by 2023. The Government provided £300,000 to support the delivery of such services when the restorative justice action plan was published in June last year, and additional funding will be available in the current financial year.

In any case, a person who is sentenced to a community payback order with supervision as a result of conviction for an animal welfare offence—or indeed most other offences—will have a risk assessment and an action plan that focuses on addressing the offending behaviour, attitudes to offending and so on, without the requirement for a programme as such.

10:45  



The Scottish Government strongly supports the provision of empathy training as a preventative measure—that is an important area on which to focus. There are a number of initiatives that teach children empathy and are centred on kindness to people and/or animals. In particular, we have supported the Roots of Empathy programme in some Scottish schools, which is an evidence-based classroom programme that has shown significant effects in reducing aggression levels in schoolchildren, by increasing social and emotional competence and empathy. Scotland was the first country in the world to deliver the Roots of Empathy programme in every council area, through funding of £1.2 million.

The Scottish SPCA has done significant work in the area, through school visits and programmes that intervene with children and young people who are starting to display potentially offending behaviour towards animals. I am thinking of the Scottish SPCA’s animal guardians programme, for example.

The point that I made about judicial interference is particularly relevant in relation to Claudia Beamish’s amendment 98, which would require guidance to be issued to the courts. It is a long-established and important principle that sentencing, in any case, is a matter for the court alone. The court takes account of all the facts and circumstances of a case before it reaches a decision, in the overall legal framework, and guidance to the courts about how they undertake their sentencing responsibilities should be a matter for the judiciary or the independent, Scottish judiciary-led Scottish Sentencing Council. The placing of an obligation on the Scottish ministers to provide guidance to the courts on sentencing matters would run the risk of threatening judicial independence and should be strongly resisted.

It is worth noting that the independent Scottish Sentencing Council has indicated that, as part of its current business plan, it intends to consider sentencing guidelines in the area of wildlife and environmental offending. If and when changes to the overall sentencing legal framework proposed in the bill come into force, the Scottish Sentencing Council will consider issuing guidelines. That is the correct order in which matters should be considered.

Having said all that, I think that there is scope for us to give further consideration to restorative justice in the context of animal welfare and wildlife cases. We could undertake a project to look at the most recent evidence from other countries in that regard. I do not know whether Mark Ruskell and Claudia Beamish will be content respectively to seek leave to withdraw amendment 1 and not move amendment 98 on the basis that we can commit to further investigation, so that we can discuss what that would look like.

Mark Ruskell

I listened carefully to that, and I am certainly interested in hearing more from the minister at some point about what such a project might look like.

The problem is that we are stuck in a bit of a chicken-and-egg scenario. Yes, there is no direct evidence on the success of empathy training in a restorative justice approach, but that is partly because there are no empathy training and restorative justice programmes available for offenders to attend.

The minister was right to point out, as did I, that some empathy training is available for young people in schools, but such an approach is not being rolled out under CPOs, and we have to question why that is. The minister mentioned resources. We are talking about specialist rehabilitation and bespoke courses, which a single local authority might not be able to pursue in an area where a low number of offenders might attend such courses. A nationally co-ordinated approach is needed and I hope that the Government can move on that.

I take on board the minister’s comments about guidance in the context of Claudia Beamish’s amendment 98, which is why my amendment 1 attempts to put a light-touch approach in legislation, while ensuring that the Government takes action on the matter.

I look forward to further discussion with the minister ahead of stage 3. I will not press amendment 1. I will have a look at what the scope might be for action to be taken on a non-statutory basis. I will look at the specification for that and consider whether, on the back of that discussion, it would be worth lodging another amendment at stage 3.

Amendment 1, by agreement, withdrawn.

The Convener

I invite Claudia Beamish to move or not move amendment 98.

Claudia Beamish

I will not move amendment 98. I have noted the minister’s comments about possible discussions.

Amendment 98 not moved.

The Convener

Amendment 97, in the name of Colin Smyth, is in a group on its own.

Colin Smyth

Amendment 97 is intended to create a framework for more efficient information sharing on animal welfare and wildlife related crimes in response to concerns that were raised with the committee on that issue at stage 1.

A number of stakeholders noted that the lack of information sharing in relation to those offences limited investigations and made it difficult to track offenders and identify patterns of behaviour. Indeed, the committee’s stage 1 report concluded:

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

It also recommended that the Scottish Government

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

My amendment seeks to underpin the creation of such a system. I have taken an enabling approach that calls on the Scottish ministers simply to issue guidance on the matter, in order to give us as much flexibility as possible on the specifics of the system. However, the aim is incredibly important, and I hope that we can agree on this straightforward amendment as a first step towards addressing the problem.

I move amendment 97

Stewart Stevenson

This is probably a question for the minister as much as it is for Colin Smyth, although it would be proper for Colin to comment as well.

The amendment leaves me uncertain about how it would interact with the operation of Disclosure Scotland, in particular in relation to community payback orders and disqualification orders and so on. Were the amendment to be moved, I am not minded to support it. I wonder how Disclosure Scotland fits in. For example, the amendment’s proposed new subsection (9), on the meaning of an “enforcement authority”, does not list Disclosure Scotland. That may or may not be correct. There are issues with the drafting of the amendment, besides any that may arise in the policy.

Mairi Gougeon

I state at the outset that I absolutely support the aims of the amendment in principle, because the Government recognises the importance of improving information sharing and co-ordination between the various bodies that have a role in animal health, welfare and wildlife enforcement. Those include local authorities, APHA, Food Standards Scotland, the Scottish SPCA, Police Scotland and others.

Our officials are involved in on-going discussions with enforcement bodies on that subject. I have been informed that there are current moves to standardise the databases that are used by Scottish local authorities and others and to agree protocols for greater sharing of information between the various bodies that are involved in the wide range of animal health and welfare enforcement. That includes many forms of information and intelligence and is not limited simply to the outcome of criminal cases. However, we will have to carefully consider whether the proposed amendment would, in fact, produce the improvements that we would like to see, and whether it would be legally feasible, because there are various legislative competence issues that would need to be worked through.

A particular issue is to what extent it would constitute a direction from the Scottish ministers to Police Scotland, which would be contrary to the proper process and could amount to unacceptable interference by the Government in the independent system for the investigation and prosecution of crime in Scotland, which is headed by the Lord Advocate.

Any guidance that is issued to enforcement authorities would also need to take account of data protection legislation, for example in ensuring that personal data was processed lawfully, fairly, and in a transparent manner, and was collected for specified, explicit and legitimate purposes only.

We would also need to consider whether anything should be added to the provisions to ensure that they comply with article 8 of the European convention on human rights, which concerns the sharing of information about the private lives of individuals.

Stewart Stevenson also highlighted a couple of points.

For those reasons, I cannot support the amendment as currently drafted, because there are fundamental and complex legal issues involved. However, I offer again to work with Colin Smyth on whether the aims, which we both share, of in general improving information sharing and co-ordination between enforcement authorities can be progressed more effectively but in other ways.

Colin Smyth

[Temporary loss of sound.]—welfare and wildlife offences is a significant issue, which the committee agreed needed to be addressed as part of the consideration of the bill.

It is not clear to me from the minister’s comments whether the Government supports an amendment to the bill to ensure that that happens, because, frankly, so far it has not done so. I would be deeply concerned if we did not have an amendment that gave some legal underpinning to a requirement for the better sharing of information.

I am happy not to press amendment 97 at this stage, but I intend to lodge it at stage 3, and I hope that the Government will be happy to work with me on the wording. I do not think that we can simply leave it to discussions; it needs to be given the very clear direction of Parliament to make sure that the desperately needed improvements in information sharing happen. That is why it needs to be in the bill. We will have another opportunity at stage 3.

I do not agree with a number of the points that the minister made about some of the wording of the amendment—it was very carefully considered, and any tweaks could happen at stage 3 if the amendment were agreed to today. However, in the spirit of discussions so far, I will not press the amendment and I hope that the Government will work with me on appropriate wording for stage 3.

Amendment 97, by agreement, withdrawn.

The Convener

Members will be pleased to know that at this point we can have a short break.

10:58 Meeting suspended.  



11:10  



On resuming—

The Convener

Amendment 99, in the name of Maurice Golden, has already been debated with amendment 67.

Maurice Golden

On the basis of—[Temporary loss of sound.]—and the intention behind amendment 99, I am happy not to move it.

Amendment 99 not moved.

The Convener

Amendment 2, in the name of Mark Ruskell, is in a group on its own.

Mark Ruskell

I hope that it is clear to the minister and most members of the committee that we have yet to put in place the right resources to successfully detect and prosecute wildlife crime, especially in our most remote areas. A pilot involving special constables was run in the Cairngorms, but it was found that that was not the solution. There is a glaring need for a team of professionals who can work to assist the police in evidence gathering and enforcement.

The SSPCA is working successfully in most areas of animal welfare enforcement, but as we heard in evidence at stage 1, there is a mismatch in its powers. For example, an SSPCA inspector can visit an illegal trap that has a live bird inside it, gather evidence and intervene, but they would have no jurisdiction over a trap with a dead bird inside it, even if it was just 2m away.

I am aware that the minister knows that that needs to be fixed, and soon, and I am aware of the Government’s work with stakeholders including the SSPCA to discuss the extension of the powers that are needed. However, I am concerned that, despite the consensus on what needs to change, we could wait a long time before the Parliament has another opportunity to pass primary legislation. The last time that we had primary legislation that could have fixed the issue was in 2006. We cannot wait another 14 years while our bird of prey populations continue to be decimated.

Amendment 2 would allow ministers to act, when the time is right, to confer further powers on wildlife inspectors through regulations under the affirmative procedure. That would enable the Parliament to move at pace, but with proper scrutiny. The SSPCA’s offer to extend its role in wildlife inspection has been on the table for years. We need a robust route to make progress on the issue, which is what I am proposing.

I move amendment 2.

Mairi Gougeon

Mark Ruskell’s amendment would allow the Scottish Government to make broad changes to the function of wildlife inspectors through secondary legislation. I have concerns about that, because the amendment does not place any caveats or limitations on what the powers could be, and it is not clear why the powers would be needed or what they are for.

11:15  



I appreciate that the committee has raised concerns previously about the resourcing of wildlife law enforcement and that it is keen to explore whether it would be possible to extend the powers of SSPCA inspectors to undertake investigations in that area. The committee will be aware that the First Minister has given a commitment that the Government will look at the issue further. I can confirm that I plan to convene a task force later this year to consider the matter in detail. I will write to the committee to provide more information about the purpose and remit of that group and the timescales that it will work to. I intend to do that ahead of stage 3.

It would be inappropriate to pre-empt the findings of that task force by doing anything in the bill that could be viewed as paving the way to extend further powers to persons who are involved in the investigation of wildlife crime. We should first have a clear view of what those powers could and should be, as well as any potential wider implications. I understand that the Scottish SPCA is happy with the approach that I propose.

Therefore, I cannot support amendment 2. I ask Mark Ruskell, rather than pressing the amendment now, to withdraw the amendment and allow the task force the time to complete its work.

Mark Ruskell

I am tempted to seek to withdraw the amendment. I take on board what the minister is saying about the task force and the commitment that she has given to write to the committee about its purpose and remit. However, I still have a concern about the legislative timescale, which is the point that I made in my opening remarks. The SSPCA’s offer to extend its powers has been on the table for many years and we have been going round the houses on the matter for a long time. If feedback on the remit and work of the task force is to come to the committee, I would like that to include a clear indication of a legislative approach and a legislative timescale for the issue.

I take on board the minister’s comments about the amendment being quite broad, but I need to see more detail on how the Government intends to take on board the task force’s conclusions and deliver them in legislation. Otherwise, we could be waiting for years and years for the next piece of primary legislation to come through in order to make a change that we all want and that is logical.

I will not press amendment 2. I will look carefully at the letter that the minister sends, and I hope to have further discussions with her ahead of stage 3. I will consider options at that point.

Amendment 2, by agreement, withdrawn.

The Convener

Amendment 100, in the name of Maurice Golden, is in a group on its own.

Maurice Golden

Amendment 100 relates to the requirement to conduct a general review of the provisions of the bill after it is enacted to ensure that, in overall terms, it is sufficient to safeguard animal welfare and protect wildlife.

Animal welfare should never have an end point; we must constantly strive to improve it. As such, a review would be an opportunity to test and strengthen the legislation. Such a review would be required to consider—in particular, but not exclusively—the inclusion of pet theft as a specific offence, as well as to follow up on previous statements in Parliament against wearable electric shock training aids for dogs. Both of those positions have received considerable support both within and outwith Parliament; as such, a serious appraisal of both should be conducted.

I move amendment 100.

Mairi Gougeon

Amendment 100 calls for the Scottish ministers to conduct a review of the provisions of the act as soon as practicable after the bill receives royal assent, and I cannot support that for a number of reasons.

First, it would be highly unusual and arguably pointless to review an act so soon after royal assent. Reviews are generally done after several years. Undertaking a review so quickly would be meaningless, because there would have been no time for practical issues that are associated with the new provisions to arise or be fully considered. We cannot formally review the new provisions effectively, because there will be no evidence about how they have operated in practice. We need time for that.

Secondly, amendment 100 raises the issues of pet theft and electronic training collars. I know that they are matters of particular concern to members, as they are for me. However, the amendment is not necessary to deal with those issues, because they are being looked at anyway and can be pursued through the Scottish animal welfare commission, which I hope we will discuss later in today’s meeting.

The commission will be able to consider a wide range of specific animal welfare issues, including companion animals and wildlife, and it will be able to provide independent expert advice on how those issues should be prioritised and taken forward. I hope that we will be able to discuss that in more detail after this debate, but for now I am content that the commission will be the most appropriate forum for dealing with the important issues that have been mentioned.

Finally, I reassure members that many of the important improvements that are contained in the bill have been developed through close and co-operative working relationships with those at the front line of enforcing legislation, and through on-going consideration of the operation of their powers. I have no doubt that that will continue and so I am comfortable that a formal review would be of no value at this time.

Maurice Golden

I respect the minister’s views about amendment 100 and appreciate her efforts to improve animal welfare in Scotland. However, for too long in Parliament, we have heard warm words and I believe that amendment 100 will help to strengthen animal welfare in Scotland, which is an aim that we all share. I will therefore press amendment 100.

The Convener

The question is, that amendment 100 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Wells, Annie (Glasgow) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Beamish, Claudia (South Scotland) (Lab)

Against

Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Martin, Gillian (Aberdeenshire East) (SNP)
MacDonald, Angus (Falkirk East) (SNP)

The Convener

The result of the division is: For 3, Against 4, Abstentions 0.

Amendment 100 disagreed to.

Section 11—Taking possession of animals: additional powers

The Convener

Amendment 13, in the name of the minister, is grouped with amendments 14, 18, 20 to 22, 32, 37 and 40.

Mairi Gougeon

The next six groups of amendments all relate to the new powers for dealing with animals that have been seized for welfare reasons, which are found in section 11 of the bill. Section 11 inserts a number of new provisions in relation to those new powers into the 2006 act. The new powers to deal with animals are found in proposed new section 32A of the 2006 act; related provisions and procedures are found in proposed new sections 32B to 32L.

The first group of amendments addresses a number of technical issues regarding appeals, under proposed new section 32D of the 2006 act, in relation to decisions to deal with animals made using the new powers. The bill as introduced provides that a court may order different relevant steps from those originally specified in the notice that is served on the owner prior to exercise of the new powers. The provisions assume that the step that is taken is the step that is specified in the notice. However, the court may direct that another step be taken if an appeal is made under proposed new section 32D.

Accordingly, amendment 21 provides that, when a court makes an order on appeal that is in addition to or instead of the original decision, that is to be achieved by varying the notice. That change overcomes the difficulties that are posed by any steps being ordered in an appeal that were not specified in the notice. There are also a number of minor and consequential amendments.

Amendment 20 qualifies one of the grounds of appeal in proposed new section 32D(5) that are available to owners in relation to the proposed exercise of the new powers, so that any error of fact must have materially affected the decision to serve a decision notice or to specify any relevant step in it.

The purpose of the group of amendments is to ensure that the new process works correctly.

I move amendment 13.

Amendment 13 agreed to.

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

The Convener

Amendment 15, in the name of the minister, is grouped with amendments 15, 19, 23, 25 to 31, 33, 34, 36, 38, 39 and 41.

Mairi Gougeon

The amendments rectify issues regarding the circumstances in which the ability to seek a release order or a disposal order under the existing provisions of the 2006 act should be reinstated after a decision notice has been served using the new procedure.

Specifically, the amendments allow a release order to be sought when a decision notice is served and an application for a release order under existing provisions in the 2006 act is then made but ultimately rejected by the court. The right to seek a release order will be reinstated a year after such a rejection.

Other associated amendments are housekeeping measures in proposed new sections 32E and 32F and relate to other consequential matters that arise from the main amendments that I have described.

I move amendment 15.

Amendment 15 agreed to.

The Convener

Amendment 16, in the name of the minister, is grouped with amendments 54, 58 and 62.

11:30  



Mairi Gougeon

This group of amendments deals with the implications of the receipt of proceeds of sale where animals are sold using the new powers.

Amendment 58 has the effect of inserting a new section into the 2006 act, which provides for what happens to any proceeds of sale arising from exercise of the new powers. The amendment provides that any proceeds of sale must be applied first to meet any liability of the owner to pay relevant expenses and secondly to meet any liability to pay the compensation amount. The same amendment clarifies that the owner’s entitlement to compensation is instead of any entitlement any owner has to any proceeds of sale of the animal. That clarification rules out the possibility that the owner would be entitled to the proceeds of sale in addition to the compensation amount provided for under the new procedures.

Amendment 62 makes provision in relation to the proceeds of sale in the event that a court orders the forfeiture of the compensation amount. The amendment gives the court the power to make an order as to the disposal of the proceeds of sale. It also confers a power on the Scottish ministers to make provision for, or in connection with, the disposal of such proceeds of sale. For example, the power could be used to specify bodies to which the proceeds of sale could be paid.

This group of amendments includes a clarification that, when exercising any of the new powers to deal with animals in new section 32A of the 2006 act, the owner has not only the powers but the rights that an owner of the animal would have in taking the relevant step. Amendment 54 clarifies that the definition of “relevant expenses” that is found in new section 32H(5) also applies to new sections 32HA and 32K.

I move amendment 16.

Amendment 16 agreed to.

The Convener

Amendment 17, in the name of the minister, is grouped with amendments 24, 35, 46, 51, 56 and 61.

Mairi Gougeon

This group contains various minor amendments that have little legal effect on the workings of the new process for dealing with animals that have been taken into possession. They relate to consistent use of terminology, including the use of the term “protected animal” throughout the provisions.

I move amendment 17.

Amendment 17 agreed to.

Amendments 18 to 41 moved—[Mairi Gougeon]—and agreed to.

The Convener

Amendment 42, in the name of the minister, is grouped with amendments 43, 44 and 63.

Mairi Gougeon

The amendments in this group address the particular scenario in which, following service of a decision notice and exercise of the new powers to deal with animals, it is difficult or impossible to serve a compensation notice by the methods of service currently provided for in new section 32G of the 2006 act. For example, it may not be possible to serve a compensation notice when the owner has moved address following service of the decision notice and cannot otherwise be traced to an alternative address.

Amendment 43 provides some flexibility regarding the service of compensation notices by permitting service by any method that is directed by the court. The authorised person will be able to apply to the court for such a direction where there is difficulty with serving the notice by the methods that are specified in section 32G of the 2006 act.

The other amendments in the group make related changes, including placing a duty on the authorised person to carry out certain investigations before they serve a compensation notice.

I move amendment 42.

Amendment 42 agreed to.

Amendments 43 and 44 moved—[Mairi Gougeon]—and agreed to.

The Convener

Amendment 45 is grouped with amendments 47 to 50, 52, 53, 55, 57 and 60.

Mairi Gougeon

The amendments in this group concern the calculation of the amount of compensation to which the owner of the animal might be entitled after the exercise of the new powers to deal with animals. They will ensure that compensation is calculated fairly and without giving rise to unintended results where multiple events give rise to compensation.

Under the bill as introduced, compensation is calculated in the context of treatment, with reference to the decrease in the value of the animal when it was taken into possession and the value of the animal immediately after the treatment. Amendment 47 revises that approach so that the compensation is measured with reference to the decrease in the value of the animal that is caused by the administration of the treatment. That change will avoid anomalies occurring when multiple compensation notices are served in relation to consecutive treatments.

In order to avoid double counting, amendments 48, 52, 53, 55 and 57 revise and reorder the provisions in section 32H that specify the sums that are deducted when a compensation award is calculated.

Amendment 50 provides for the proceeds of sale to be taken into account when the animal is valued for the purpose of calculating compensation. That will ensure that the proceeds of sale are used as the starting point for calculating compensation in the unlikely situation in which they exceed the market value of the animal.

Amendment 60 provides for the scenario in which the compensation amount cannot be paid to the owner of the animal. It allows an application to be made to the court for an order as to disposal of the compensation in those circumstances. That will ensure that funds do not need to be held indefinitely for the benefit of the owner when they are unclaimed.

The other amendments in the group—amendments 45 and 49—make technical changes to the compensation provisions in order to avoid unintended inferences about the exercise of calculating compensation.

I move amendment 45.

Amendment 45 agreed to.

Amendments 46 to 58 moved—[Mairi Gougeon]—and agreed to.

The Convener

Amendment 59, in the name of the minister, is in a group on its own.

Mairi Gougeon

Amendment 59 adds three categories of persons who are entitled to be heard in an appeal in relation to compensation under proposed new section 32I to the 2006 act. The bill as introduced was silent as to who, other than the owner, would be entitled to be heard in such an appeal, and amendment 59 ensures that authorised persons and certain inspectors and constables can be heard during an appeal, if the owner of the animal makes an appeal regarding the compensation relating to that animal.

I move amendment 59.

Amendment 59 agreed to.

Amendments 60 to 63 moved—[Mairi Gougeon]—and agreed to.

Section 11, as amended, agreed to.

Sections 12 to 15 agreed to.

Long Title

The Convener

Amendment 64, in the name of the minister, was debated with amendment 12.

Mairi Gougeon

Amendment 64 is a technical amendment that modifies the long title of the bill to include a reference to fixed-penalty notices in relation to wildlife offences.

Amendment 64 moved—[Mairi Gougeon]—and agreed to.

Long title agreed to.

The Convener

That ends stage 2 consideration of the bill. Printed copies of the bill, as amended, will be available from Wednesday 27 May 2020. I thank everyone for their succinct arguments and for their co-operation. I am delighted that we have got through all the stage 2 amendments.

We will take a short break before we move to agenda item 2.

11:42 Meeting suspended.  



11:51 On resuming—  



Delegated Powers and Law Reform Committee's Stage 2 report

Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill as Amended at Stage 2

Who spoke to the Committee after Stage 2


MSPs wanted to lodge amendments to the Bill in relation to seal licensing. This session was held with Government officials before Stage 3.
Video Thumbnail Preview PNG

Evidence session after Stage 2

The Convener

The third item of business is a session with Government officials, following receipt of a letter from the minister signalling the Scottish Government’s intention to lodge amendments at stage 3 of the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill in relation to seal licensing, which we discussed last week.

I welcome our witnesses from the Scottish Government: Mike Palmer, deputy director for marine planning and policy; Michael McLeod, head of marine conservation; and Elaine Tait, marine evidence manager. Thank you all for coming in—virtually—to see us this morning.

We will move straight to questions. Could one of you give us an overview of the policy intention of the proposed change and what it actually means? I am not sure who is best placed to answer that question. We will go to Mike Palmer—over to you, Mike.

Mike Palmer (Scottish Government)

The overall policy intention of the amendments is to enhance and improve the welfare of seals. The amendments would do that by prohibiting the licensed shooting of seals in certain specific circumstances and by increasing the maximum penalties that could be applied in relation to killing, injuring or taking seals.

We believe that those purposes are congruent with the purposes of the bill. The amendments would increase the maximum penalties, as I have said. They would not introduce new licensing provisions but would vary the current provisions. For those reasons, we believe that they are consistent with the overall purposes of the bill.

The Convener

It is not as though the Government is introducing a new crime, because this is about licensing. At the moment, someone can get a licence to cull or manage the seal population somewhere. However, the amendments would mean that those licences would no longer be awarded, because that would not be in line with the requirements of the United States with regard to our exporting fish to it. Can Mike Palmer provide clarification on that?

I should register an interest in that I am the Parliament’s grey seal champion. It is important to put that on the record, so that people do not think that I am trying to hide it. I have an interest in seals, obviously, coming from the largest seal haul-out area in Scotland.

Mike Palmer

Currently, there are a couple of grounds on which the Scottish ministers—the Scottish Government—can grant licences to shoot seals: to protect the health and welfare of farmed fish in and around fish farms and to prevent serious damage to fisheries or fish farms. As a result, a degree of shooting of seals happens within the fish farm sector and the wild recreational fisheries sector. The proposed amendments would take away those two grounds on which licences can be granted. They would adjust the current licensing regime rather than bring in or take away a licensing regime.

You are absolutely right to reference the US legislation that is coming in to protect marine mammals, because it is another factor, and it has influenced the timing of the amendments more than anything else. The amendments also have the purpose of improving the welfare of seals. We are proposing the amendments both for domestic reasons, to protect the welfare of seals, and because of the broader international movement, which the US regulations have crystallised in a way, to protect marine mammals against injury or killing. The United States has taken that forward by saying that it will not accept imports of commercial seafood products from any fish farm that might have shot or injured seals intentionally.

Those two policy developments have come together and brought us to this particular set of amendments at this time.

The Convener

That is clear, but when did the US bring in that condition about not accepting fish from other countries? I would like to know when that was and how long the Scottish Government has had to deal with it. We have questions as to timing—why now?

Mike Palmer

We totally understand that it is very unusual to lodge amendments of this nature at stage 3. We have been on a journey around the US regulations.

Members may recall that, in 2018, during the committee’s inquiry into the impacts of salmon farming, we notified it that we were liaising with the US authorities. At that point, the US authorities were developing their legislation, and we have been in constant dialogue with them since then to clarify and understand exactly what its requirements are and how we need to comply with it. That has been a tortuous journey in some respects, because it is very complex legislation; the various conditions and requirements are wide ranging and needed to be gone into in some depth with the US authorities in order that we could understand exactly what we need to do.

In March—so, really very recently—we finally got written confirmation from the US authorities that they would require us to take legislative action by way of amending our licensing regime. Up to that point, it had not been clear that they would require us to take exactly that set of actions. We are still seeking to clarify some aspects of their requirements, which is why it has taken us until stage 3. We had hoped to be able to lodge amendments earlier in the bill process, but we were not totally clear on some aspects of what was required, even at stage 2.

From our point of view, it is unfortunate that we have not been able to lodge the amendments before this stage; we would have liked to do it earlier. That has been the result of the quite challenging process that we have had to go through with the US authorities to clarify certain aspects of the bill.

Just after we heard in writing from the US authorities what they require, the Covid-19 situation emerged, and that has created a lot of pressure on our resources—we were unable to develop our proposals with the speed that we would have liked. The pandemic has had an impact on us in that resources have been redeployed elsewhere. The US, too, is feeling the pressure from that.

The Convener

We totally understand that.

Finlay Carson also had questions on the timing, but this seems like a good point at which to bring in Claudia Beamish on stakeholder engagement. I will give Finlay Carson the chance to contact me if he wants to come in on the timing issue, but I will go to Claudia next.

Claudia Beamish

Good morning to the panel. I will leave it to the panel to decide for whom my questions are most appropriate.

I have listened carefully to what Mike Palmer has been saying about timing, but there is concern among committee members about how stakeholders will be affected. In 2018, our committee considered the issues of the shooting of seals and the injury of seals by acoustic devices, which my colleague Mark Ruskell will come on to. I am concerned, in the public interest, about how stakeholder interests will be dealt with.

11:15  



Mike Palmer

I am happy to answer that question. I will give a summary to kick off and then hand over to my colleagues, who will give a bit more detail. Because of the compression of the timeframe, we have not been able to do the kind of formal consultation with all stakeholders that we would like to have done. However, we have made efforts to go out to some of the key stakeholders that we know will be directly affected, particularly in the farmed fish sector and the wild fisheries sector.

I will hand over to Michael McLeod or Elaine Tait, who will give a bit more detail on the kind of engagements that we have had with those sectors.

Michael McLeod (Scottish Government)

As Mike Palmer says, we have been engaging with the sectors that will be directly affected by the changes. We have had a series of meetings with them over the past couple of months. After the minister wrote to the committee at stage 2, we wrote to every current holder of a seal licence to make them aware of the proposed changes. We have done our best to inform everyone despite the difficulties with timing and the ability to have stakeholder engagement in the current circumstances.

I have also tried to have conversations with NGOs. Clearly, they have been badly affected by Covid-19 in that a significant number of people are furloughed. However, just before the furlough process kicked in, I informed them that we would be bringing forward proposals very quickly, although at that point we were not 100 per cent sure about that.

Because of the circumstances, we certainly have not had the level and depth of engagement that we would normally aspire to have.

The Convener

Before Claudia Beamish comes back in, I will just check whether Elaine Tait wants to come in to supplement that evidence.

Elaine Tait (Scottish Government)

I have nothing to add to what Mike Palmer and Michael McLeod have already said on the issue.

The Convener

Thank you—it is always best to check.

Claudia Beamish

I do not know whether there is any further comment on the point that I tried to bring out, which is that the committee looked at the issues in 2018. I appreciate that United States law is important and that we have to get our approach right in that regard, but it is hard to understand why, over the past two years, we could not simply have proceeded and implemented changes on the basis of the concerns that were expressed by the committee and a range of stakeholders outside the Parliament in relation to seals and other marine conservation issues.

Mike Palmer

I understand the point. We were cognisant of the concerns that the committee raised about the seal licensing regime during its inquiry into salmon farming. We ultimately addressed that point in our responses to the reports of the Rural Economy and Connectivity Committee and the Environment, Climate Change and Land Reform Committee.

When the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill came along, given this committee’s concerns and our resulting policy thinking—which was reflected in our response to the committee’s report—we looked at whether we should use the bill specifically for these kinds of measures. We did that at the outset of designing the bill, but that was before the Covid situation had emerged and before it was clear what would be required in order to respond to the US regulations.

We took the view then that we should do what we routinely do anyway, which is to place the concerns and issues around the seal licensing regime in and among the range of issues that we would routinely consider in terms of amending and improving our primary marine legislation and the Marine (Scotland) Act 2010. That is a process that we routinely go through as part of good governance. However, given the parliamentary timetable and so on and so forth, there was not a defined set of proposals to bring through a set of amendments to the 2010 act at that time. There still is not, because we are still in the process of putting together what might be improvements to the 2010 act at some point in the future.

That was the thinking at that time. Clearly, things moved on with the developments around the US regulations, which forced the timing. We were also very conscious of the pressures on parliamentary time resulting from the Covid situation. Those developments coming together brought us to the conclusion that it would be sensible to draft the amendments now so that we could use this bill. The decision is the result of a set of developments that have occurred since we first thought about the bill.

The Convener

Claudia, are you happy for me to move on to the next committee member?

Claudia Beamish

I still have concerns, but Mike Palmer has answered as he sees fit. Thank you.

Finlay Carson

I have the same concerns as Claudia Beamish. We have heard some responses as to why the seal licensing proposals have been brought forward, but my concern is that the bill is a tight one and it was made clear at the outset that it would deal with only certain issues. I believe that the seal licensing proposals are outwith the scope of the bill that was introduced for us to consider. I do not buy the idea that the proposals could not have been raised at stage 1, given that, as we have heard, there have been concerns since 2018. Members lodge amendments during the bill process and a bill will be amended to ensure that we get the eventual law right.

This is not a good way to make law. It is not good governance; we will not get the opportunity to scrutinise the amendments properly and, as Michael McLeod has said, there has not been the depth of engagement that would normally happen. Introducing amendments so late in the day is very disappointing.

Given the committee’s concerns about the welfare of seals, I am really concerned about adverse, unintended consequences of bringing in these new laws. My colleague will raise our concerns about acoustic deterrent devices, but I put on record that this is not acceptable. Although I have listened and I understand the reasons, I still do not understand why something could not have happened at stage 1 to allow us to get stakeholders involved.

Covid-19 will become the excuse for so many things—I do not buy it in this instance. Convener, I do not have another question but it is important to say that I am not happy about this being brought in at stage 3.

The Convener

Finlay, do you want a response from any of our guests, or are you happy just to leave those points on the record? Mike Palmer may like to respond.

Finlay Carson

Mike, are you happy that this is the right bill? Is there no alternative legislative vehicle? The amendments are all a bit rushed because of the US requirement, which is not a good reason for making law.

Mike Palmer

We fully acknowledge and recognise the concerns that Finlay Carson has raised. I have said that the situation is not ideal and that we would have wished to provide more notice. Back at stage 1, it was not clear that the US regulations would require us to go to these lengths. It seemed to us then that any measures about seals would be better done in a future package of marine amendments, alongside other amendments to marine legislation that would be introduced at some point in the future. I am reiterating what I said earlier.

With regard to your question, we believe that this is the right bill. There is a good fit between the overall purpose of the amendments—to improve the welfare of seals while not bringing in a new licensing regime or taking one out—and the purpose of the bill, which is to increase penalties for breaches of due welfare for animals and wildlife. That is exactly what the amendments do; they improve the welfare of seals, which are a species of wildlife, by taking away a couple of conditions in the licensing. That seems to us to be in the scope of the bill and that is the position that we have arrived at.

Mark Ruskell

I will move us on, because we are where we are. The Government has known about the need to prevent the damage to marine mammals since 2017 and it has taken a long time for this licensing proposal to be introduced. I am glad that it is being introduced, but there are potentially consequences that could impact on other marine mammals.

As I see it, if we rightfully remove the licensed killing of seals, the industry could respond in two ways: it could use tensioned nets and seal blinds to prevent the access of seals to aquaculture cages, but it could also continue to use acoustic deterrent devices. There is scientific literature on ADDs and their impact on marine mammals—not only on seals, but also whales, dolphins and porpoises. According to a 2010 study by Northridge and others, ADDs can be detected at more than 14km from the sound source.

11:30  



Another paper, which was written in 2014 by Lepper and others, found that commercially available ADDs can cause injury, stress, hearing damage and behavioural disturbance. The same study went on to state that there is a credible risk of exceeding injury criteria for both seals and porpoises.

This year, a study by Götz reported concerns about the new wave of acoustic deterrent devices, which are called “GenusWave”. Will the witnesses acknowledge that there is an impact on marine mammals from acoustic deterrent devices?

Mike Palmer

We are absolutely aware of the concerns about ADDs. The issue came up in the inquiry that this committee undertook, and it prompted us to undertake a programme of work to look into ADDs and their impacts. We are undertaking government-funded research, so that we can have proper evidence-based development of policy on ADDs and how they should be addressed as a non-lethal deterrent in future.

I will hand over to my colleague Elaine, who can give a bit more detail on our work.

Elaine Tait

At the moment, a range of non-lethal measures are used by fish farms and the river fishery sector to deal with seal predation. That range of methods includes seal blinds, tensioned nets and also ADDs. As Mike said, we appreciate that there are some concerns regarding disturbance and the potential impact of those devices on cetaceans.

When the committee reviewed the impacts of fish farming, there was talk about various unknowns and uncertainties. We have commissioned research on that, which aims to start to fill some of the key gaps on the extent of ADD use across the sector—including how and where they are used, duty cycles and places in which ADDs are not used—to get a full picture. That means that when we start to move forward we will have a strong evidence base and knowledge about how ADDs are being used.

The effectiveness of ADDs is also part of the project. We will work with the industry to get a feel of their effectiveness. That project will also look at developing science-based industry guidance about how ADDs should be used in order to reduce any potential environmental impact. All that work is on-going and it is due to be completed this year.

As well as funding that research, we are undertaking a review of the current management and regulation of ADDs. That is also on-going and once the review is completed we will set out further details.

Those are the two workstreams that we have at the moment, and we are conscious of the concerns.

Annie Wells

I have two further quick questions. Can you tell us when the research started, given that there was a committee inquiry in 2018? Can you foresee any potential unintended consequences that might need more investigation?

Elaine Tait

The research commenced last summer. It is on-going and will complete later this year. As I said, we are interested in finding out exactly what is going on, so we are not looking at the impact of ADDs in particular. Really, we are looking at efficacy and usage. It is clear that we do not know how these devices are used and, in order to move forward, we need a solid evidence base.

The Convener

Before we wind up this session, Mark Ruskell will ask a supplementary question.

Mark Ruskell

The US Marine Mammal Protection Act is clear. It prohibits the taking of marine mammals, and it says:

“The term ‘take’ means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.”

The act defines harassment as

“any act of pursuit, torment, or annoyance which—

(i) has the potential to injure a marine mammal ... in the wild; or

(ii) has the potential to disturb a marine mammal ... by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.”

With due respect to the witnesses, the issue is not about whether ADDs are lethal; it is about their ability to disrupt, annoy and harass marine mammals, whether they are seals, whales, dolphins or porpoises. There appears to be a major issue with compliance with an act that—let us face it—was drafted in 1972. Surely, the compliance issue is not about the extent of the use of ADDs; it is about the nature of that use and their impact on marine mammals. I would like to push our witnesses for a response on that point.

Michael McLeod

You are absolutely right about the MMPA. We have to achieve comparability with how the US uses its regulations, and it has a process that enables the use of acoustic devices. We will be working towards having something that is comparable in that regard. However, to get to that position we need the evidence base that Elaine Tait outlined, because it is the use that creates the noise in the marine environment, and that is what will determine the level of effect that that noise will have.

The Convener

I thank our colleagues from the Scottish Government for talking to us this morning. As we have finished our questions, they may leave the meeting.

Stage 3 - Final changes and vote

MSPs can propose further changes to the Bill and then vote on each of these. Finally, they vote on whether the Bill should become law

Debate on the proposed changes

MSPs get the chance to present their proposed changes to the Chamber. They vote on whether each change should be added to the Bill. Documents with the changes considered at the meeting that will be held on 17th June 2020:
Video Thumbnail Preview PNG

Debate on proposed changes transcript

The Presiding Officer (Ken Macintosh)

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

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

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

Section 1—Prevention of harm to animals: penalties for offences

The Presiding Officer

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

Colin Smyth (South Scotland) (Lab)

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

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

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

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

I move amendment 32.

Finlay Carson (Galloway and West Dumfries) (Con)

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

Liam McArthur (Orkney Islands) (LD)

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

The Minister for Rural Affairs and the Natural Environment (Mairi Gougeon)

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

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

Amendment 32 agreed to.

After section 3

The Presiding Officer

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

Mark Ruskell (Mid Scotland and Fife) (Green)

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

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

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

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

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

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

I move amendment 33.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

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

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

Mark Ruskell

Will the member give way?

Gail Ross

Yes, absolutely.

Mark Ruskell

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

Gail Ross

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

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

Brian Whittle (South Scotland) (Con)

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

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

Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP)

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

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

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

16:15  



Claudia Beamish (South Scotland) (Lab)

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

Liam McArthur

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

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

Finlay Carson

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

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

Mark Ruskell

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

The Presiding Officer

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

Finlay Carson

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

Mairi Gougeon

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

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

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

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

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

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

Mark Ruskell

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

Mairi Gougeon

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

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

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

Mark Ruskell

I press amendment 33.

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

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

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

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

The Presiding Officer

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

Members: No.

The Presiding Officer

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

16:23 Meeting suspended.  



16:28 On resuming—  



The Presiding Officer

We will proceed with the division on amendment 33.

For

Wightman, Andy (Lothian) (Green)
Stewart, David (Highlands and Islands) (Lab)
Smyth, Colin (South Scotland) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Harvie, Patrick (Glasgow) (Green)
Greer, Ross (West Scotland) (Green)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Boyack, Sarah (Lothian) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)

Against

Yousaf, Humza (Glasgow Pollok) (SNP)
Whittle, Brian (South Scotland) (Con)
White, Sandra (Glasgow Kelvin) (SNP)
Wells, Annie (Glasgow) (Con)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Russell, Michael (Argyll and Bute) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rennie, Willie (North East Fife) (LD)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lochhead, Richard (Moray) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kerr, Liam (North East Scotland) (Con)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Greene, Jamie (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Golden, Maurice (West Scotland) (Con)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Corry, Maurice (West Scotland) (Con)
Constance, Angela (Almond Valley) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Carson, Finlay (Galloway and West Dumfries) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Ballantyne, Michelle (South Scotland) (Con)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

Abstentions

Gibson, Kenneth (Cunninghame North) (SNP)

The Presiding Officer

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

Amendment 33 disagreed to.

The Presiding Officer

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

16:30  



Maurice Golden (West Scotland) (Con)

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

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

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

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

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

I move amendment 34.

Colin Smyth

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

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

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

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

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

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

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

“instead of ... any other penalty”.

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

The legislation as amended would read:

“A disqualification order may be made in addition to any other penalty or order which may be imposed in relation to”

a relevant offence. It would not say that disqualification orders could be issued only alongside a penalty—although I cannot think of a scenario whereby a disqualification order on its own would ever be deemed appropriate without a penalty such as a fine.

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

Mairi Gougeon

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

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

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

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

The Presiding Officer

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

Maurice Golden

I will press amendment 34.

Amendment 34 agreed to.

Amendment 35 moved—[Colin Smyth].

The Presiding Officer

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

Members: No.

The Presiding Officer

There will be a division.

For

Wightman, Andy (Lothian) (Green)
Whittle, Brian (South Scotland) (Con)
Wells, Annie (Glasgow) (Con)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Sarwar, Anas (Glasgow) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rumbles, Mike (North East Scotland) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rennie, Willie (North East Fife) (LD)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lindhurst, Gordon (Lothian) (Con)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Kerr, Liam (North East Scotland) (Con)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Harvie, Patrick (Glasgow) (Green)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Greer, Ross (West Scotland) (Green)
Greene, Jamie (West Scotland) (Con)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Golden, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Corry, Maurice (West Scotland) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Carson, Finlay (Galloway and West Dumfries) (Con)
Briggs, Miles (Lothian) (Con)
Boyack, Sarah (Lothian) (Lab)
Bowman, Bill (North East Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Ballantyne, Michelle (South Scotland) (Con)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)

Against

Yousaf, Humza (Glasgow Pollok) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lochhead, Richard (Moray) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Constance, Angela (Almond Valley) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

The Presiding Officer

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

Amendment 35 agreed to.

Section 5—Wildlife and Countryside Act 1981: penalties for offences

The Presiding Officer

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

Claudia Beamish

The amendments in this group seek to extend the bill’s provisions on vicarious liability to certain offences under the Wildlife and Countryside Act 1981 and the Wild Mammals (Protection) Act 1996.

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

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

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

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

Amendment 54 is consequential to amendment 53.

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

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

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

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

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

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

I move amendment 36.

Mark Ruskell

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

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

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

Edward Mountain (Highlands and Islands) (Con)

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

Mark Ruskell

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

16:45  



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

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

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

Finlay Carson

Will the member take an intervention?

Mark Ruskell

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

Finlay Carson

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

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

Mark Ruskell

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

Finlay Carson

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

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

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

The Law Society also states:

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

It goes on:

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

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

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

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

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

Liam McArthur

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

Edward Mountain

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

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

Mairi Gougeon

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

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

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

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

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

“land on which badgers are found”.

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

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

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

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

Claudia Beamish

I will press amendment 36.

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

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

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

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

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

17:00  



The Presiding Officer

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

Members: No.

The Presiding Officer

There will be a division.

For

Wightman, Andy (Lothian) (Green)
Stewart, David (Highlands and Islands) (Lab)
Smyth, Colin (South Scotland) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Harvie, Patrick (Glasgow) (Green)
Greer, Ross (West Scotland) (Green)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Boyack, Sarah (Lothian) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)

Against

Yousaf, Humza (Glasgow Pollok) (SNP)
Whittle, Brian (South Scotland) (Con)
White, Sandra (Glasgow Kelvin) (SNP)
Wells, Annie (Glasgow) (Con)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Russell, Michael (Argyll and Bute) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rennie, Willie (North East Fife) (LD)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lochhead, Richard (Moray) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kerr, Liam (North East Scotland) (Con)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Greene, Jamie (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Golden, Maurice (West Scotland) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Corry, Maurice (West Scotland) (Con)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Carson, Finlay (Galloway and West Dumfries) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Ballantyne, Michelle (South Scotland) (Con)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

The Presiding Officer

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

Amendment 36 disagreed to.

Amendment 37 moved—[Claudia Beamish].

The Presiding Officer

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

Members: No.

The Presiding Officer

There will be a division.

For

Wightman, Andy (Lothian) (Green)
Stewart, David (Highlands and Islands) (Lab)
Smyth, Colin (South Scotland) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Harvie, Patrick (Glasgow) (Green)
Greer, Ross (West Scotland) (Green)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Boyack, Sarah (Lothian) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)

Against

Yousaf, Humza (Glasgow Pollok) (SNP)
Whittle, Brian (South Scotland) (Con)
White, Sandra (Glasgow Kelvin) (SNP)
Wells, Annie (Glasgow) (Con)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Russell, Michael (Argyll and Bute) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rennie, Willie (North East Fife) (LD)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lochhead, Richard (Moray) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kerr, Liam (North East Scotland) (Con)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Greene, Jamie (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Golden, Maurice (West Scotland) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Corry, Maurice (West Scotland) (Con)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Carson, Finlay (Galloway and West Dumfries) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Ballantyne, Michelle (South Scotland) (Con)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

The Presiding Officer

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

Amendment 37 disagreed to.

Amendment 38 moved—[Claudia Beamish].

The Presiding Officer

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

Members: No.

The Presiding Officer

There will be a division.

For

Wightman, Andy (Lothian) (Green)
Stewart, David (Highlands and Islands) (Lab)
Smyth, Colin (South Scotland) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Harvie, Patrick (Glasgow) (Green)
Greer, Ross (West Scotland) (Green)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Boyack, Sarah (Lothian) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)

Against

Yousaf, Humza (Glasgow Pollok) (SNP)
Whittle, Brian (South Scotland) (Con)
White, Sandra (Glasgow Kelvin) (SNP)
Wells, Annie (Glasgow) (Con)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Russell, Michael (Argyll and Bute) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rennie, Willie (North East Fife) (LD)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lochhead, Richard (Moray) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kerr, Liam (North East Scotland) (Con)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Greene, Jamie (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Golden, Maurice (West Scotland) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Corry, Maurice (West Scotland) (Con)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Carson, Finlay (Galloway and West Dumfries) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Ballantyne, Michelle (South Scotland) (Con)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

The Presiding Officer

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

Amendment 38 disagreed to.

Amendment 39 moved—[Claudia Beamish].

The Presiding Officer

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

Members: No.

The Presiding Officer

There will be a division.

For

Yousaf, Humza (Glasgow Pollok) (SNP)
Wightman, Andy (Lothian) (Green)
White, Sandra (Glasgow Kelvin) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Smyth, Colin (South Scotland) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Russell, Michael (Argyll and Bute) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rumbles, Mike (North East Scotland) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rennie, Willie (North East Fife) (LD)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lochhead, Richard (Moray) (SNP)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Harvie, Patrick (Glasgow) (Green)
Greer, Ross (West Scotland) (Green)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Boyack, Sarah (Lothian) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Beamish, Claudia (South Scotland) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

Against

Whittle, Brian (South Scotland) (Con)
Wells, Annie (Glasgow) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lindhurst, Gordon (Lothian) (Con)
Kerr, Liam (North East Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Greene, Jamie (West Scotland) (Con)
Golden, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Corry, Maurice (West Scotland) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Ballantyne, Michelle (South Scotland) (Con)

The Presiding Officer

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

Amendment 39 agreed to.

Amendment 40 moved—[Claudia Beamish].

The Presiding Officer

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

Members: No.

The Presiding Officer

There will be a division.

For

Wightman, Andy (Lothian) (Green)
Stewart, David (Highlands and Islands) (Lab)
Smyth, Colin (South Scotland) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Harvie, Patrick (Glasgow) (Green)
Greer, Ross (West Scotland) (Green)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Boyack, Sarah (Lothian) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)

Against

Yousaf, Humza (Glasgow Pollok) (SNP)
Whittle, Brian (South Scotland) (Con)
White, Sandra (Glasgow Kelvin) (SNP)
Wells, Annie (Glasgow) (Con)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Russell, Michael (Argyll and Bute) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rennie, Willie (North East Fife) (LD)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lochhead, Richard (Moray) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kerr, Liam (North East Scotland) (Con)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Greene, Jamie (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Golden, Maurice (West Scotland) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Corry, Maurice (West Scotland) (Con)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Carson, Finlay (Galloway and West Dumfries) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Ballantyne, Michelle (South Scotland) (Con)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

The Presiding Officer

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

Amendment 40 disagreed to.

The Presiding Officer

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

Angus MacDonald (Falkirk East) (SNP)

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

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

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

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

I move amendment 41.

Claudia Beamish

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

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

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

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

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

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

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

Mairi Gougeon

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

That is really the purpose of amendments 14 and 27. They seek to correct section 21 of the Wildlife and Countryside Act 1981—which provides the penalties for the offences within that act—by removing duplication of references to offences. Amendment 14 will repeal section 21(4ZZA) of the 1981 act, because the penalties for the offences that are listed in that section are already provided for in section 21(4C).

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

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

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

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

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

Liam McArthur

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

Finlay Carson

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

The Presiding Officer

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

Angus MacDonald

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

Amendment 41 agreed to.

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

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

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

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

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

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

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

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

After section 5

17:15  



The Presiding Officer

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

Claudia Beamish

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

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

I move amendment 28.

Mairi Gougeon

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

First, amendment 28 has a number of technical issues; I am concerned that the amendment as drafted is fundamentally flawed. The intention behind it appears to be to increase penalties for offences relating to prohibitions on importation, sale and supply of pesticides. However, the amendment fails to identify properly the power in section 16 of the Food and Environment Protection Act 1985 under which such prohibitions are made and under which, for that matter, the offences arise. Because of how the amendment has been drafted, it is doubtful that the increased penalties that it mentions will apply to offences under the 1985 act.

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

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

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

Finlay Carson

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

The Presiding Officer

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

Claudia Beamish

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

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

Amendment 28, by agreement, withdrawn.

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

Amendment 1 moved—[Mark Ruskell].

The Presiding Officer

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

Members: No.

The Presiding Officer

There will be a division.

For

Wightman, Andy (Lothian) (Green)
Stewart, David (Highlands and Islands) (Lab)
Smyth, Colin (South Scotland) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Harvie, Patrick (Glasgow) (Green)
Greer, Ross (West Scotland) (Green)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Boyack, Sarah (Lothian) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)

Against

Yousaf, Humza (Glasgow Pollok) (SNP)
Whittle, Brian (South Scotland) (Con)
White, Sandra (Glasgow Kelvin) (SNP)
Wells, Annie (Glasgow) (Con)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Russell, Michael (Argyll and Bute) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rennie, Willie (North East Fife) (LD)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lochhead, Richard (Moray) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kerr, Liam (North East Scotland) (Con)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Golden, Maurice (West Scotland) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Corry, Maurice (West Scotland) (Con)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Carson, Finlay (Galloway and West Dumfries) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Ballantyne, Michelle (South Scotland) (Con)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

The Presiding Officer

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

Amendment 1 disagreed to.

The Presiding Officer

Group 7 is on the Protection of Badgers Act 1992: penalties for offences et cetera. Amendment 49, in the name of Colin Smyth, is grouped with amendments 50 to 52.

Colin Smyth

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

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

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

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

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

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

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

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

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

I move amendment 49.

Liam McArthur

I place on record my gratitude to Colin Smyth for his amendments on the further protection of badger setts, which, as he rightly points out, would bring those penalties into line with those that are already in place in respect of harming badgers directly. The descriptions that we have seen of the suffocation that can occur through a sett being tampered with are horrific and they absolutely justify the approach that Colin Smyth takes in his amendments, which the Scottish Liberal Democrats will support, with the exception of amendment 52.

Finlay Carson

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

Mairi Gougeon

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

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

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

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

The Presiding Officer

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

Colin Smyth

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

I welcome the minister’s willingness to look again at the definition of a badger sett and consider whether any changes are needed. I note that that commitment is on the record and, on that basis, I will not move amendment 52. I and many organisations such as Scottish Badgers, which has done some outstanding work to promote the study, conservation and protection of Scotland’s badgers, look forward to working with the minister on the issue in order to ensure that we have a definition of a badger sett to complement the changes to the penalties.

I press amendment 49.

Amendment 49 agreed to.

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

Amendment 52 not moved.

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

Amendment 53 moved—[Claudia Beamish].

The Presiding Officer

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

Members: No.

The Presiding Officer

There will be a division.

For

Wightman, Andy (Lothian) (Green)
Stewart, David (Highlands and Islands) (Lab)
Smyth, Colin (South Scotland) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Harvie, Patrick (Glasgow) (Green)
Greer, Ross (West Scotland) (Green)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Boyack, Sarah (Lothian) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)

Against

Yousaf, Humza (Glasgow Pollok) (SNP)
Whittle, Brian (South Scotland) (Con)
White, Sandra (Glasgow Kelvin) (SNP)
Wells, Annie (Glasgow) (Con)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Russell, Michael (Argyll and Bute) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rennie, Willie (North East Fife) (LD)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lochhead, Richard (Moray) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kerr, Liam (North East Scotland) (Con)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Greene, Jamie (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Golden, Maurice (West Scotland) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Corry, Maurice (West Scotland) (Con)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Carson, Finlay (Galloway and West Dumfries) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Ballantyne, Michelle (South Scotland) (Con)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

The Presiding Officer

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

Amendment 53 disagreed to.

Amendment 54 not moved.

After section 10A

The Presiding Officer

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

17:30  



Mairi Gougeon

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I move amendment 29.

Mark Ruskell

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

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

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

Why has the Scottish Government allowed a free-for-all in the use of ADDs on fish farms? According to one study, they could be polluting over 12,500km2 of our seas. Why are fish farms not required by Marine Scotland to apply for licences to use ADDs? Is that because Marine Scotland knows full well that applications would not pass the licensing tests because there are clear alternatives for fish farms to protect their stock by using tension nets and seal blinds, as is done in Shetland?

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

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

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

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

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

I move amendment 29A.

Claudia Beamish

Amendment 61 is an important one that deserves the support of Parliament. It applies a new maximum penalty for the few instances in which fisherpeople are convicted of contravening a marine conservation order or of committing offences relating to the protected features of nature conservation MPAs. I drew the amendment narrowly. I hear what the minister says about other marine protected features, but I focused particularly and deliberately on marine protected areas.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Finlay Carson

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

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

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

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

Andy Wightman (Lothian) (Green)

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

Finlay Carson

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

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

We will not support amendment 61.

Edward Mountain

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

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

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

Liam McArthur

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

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

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

The Presiding Officer

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

Mairi Gougeon

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

I press amendment 29.

Amendment 29A, by agreement, withdrawn.

Amendment 29 agreed to.

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

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

Amendment 55, as amended, agreed to.

Amendment 61 moved—[Claudia Beamish].

The Presiding Officer

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

Members: No.

The Presiding Officer

There will be a division.

For

Wightman, Andy (Lothian) (Green)
Stewart, David (Highlands and Islands) (Lab)
Smyth, Colin (South Scotland) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Harvie, Patrick (Glasgow) (Green)
Greer, Ross (West Scotland) (Green)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gibson, Kenneth (Cunninghame North) (SNP)
Boyack, Sarah (Lothian) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)

Against

Yousaf, Humza (Glasgow Pollok) (SNP)
Whittle, Brian (South Scotland) (Con)
White, Sandra (Glasgow Kelvin) (SNP)
Wells, Annie (Glasgow) (Con)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Russell, Michael (Argyll and Bute) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rennie, Willie (North East Fife) (LD)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lochhead, Richard (Moray) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kerr, Liam (North East Scotland) (Con)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Greene, Jamie (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Golden, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Corry, Maurice (West Scotland) (Con)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Carson, Finlay (Galloway and West Dumfries) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Ballantyne, Michelle (South Scotland) (Con)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

The Presiding Officer

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

Amendment 61 disagreed to.

18:00  



The Presiding Officer

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

Claudia Beamish

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

“a rehabilitation programme to develop empathy skills”.

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

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

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

I move amendment 58.

Mark Ruskell

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

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

Finlay Carson

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

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

Christine Grahame

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

Mairi Gougeon

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

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

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

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

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

The Presiding Officer

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

Claudia Beamish

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

Mairi Gougeon

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

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

Claudia Beamish

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

Amendment 58, by agreement, withdrawn.

The Presiding Officer

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

Maurice Golden

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

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

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

Mark Ruskell

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

Maurice Golden

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

Stewart Stevenson

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

Maurice Golden

That would be a matter for the courts to determine—[Laughter.] I am sure that the member would give a strong account of himself were that to come into play.

I move amendment 59.

Christine Grahame

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

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

18:15  



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

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

I note the role of the Scottish Animal Welfare Commission.

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

Claudia Beamish

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

Mairi Gougeon

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

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

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

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

Maurice Golden

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

Mairi Gougeon

We are already addressing the issues through non-legislative means. If the member will let me finish my points, I will further illustrate that.

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

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

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

Maurice Golden

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

The Presiding Officer

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

Members: No.

The Presiding Officer

There will be a division.

For

Wightman, Andy (Lothian) (Green)
Whittle, Brian (South Scotland) (Con)
Wells, Annie (Glasgow) (Con)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Sarwar, Anas (Glasgow) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rumbles, Mike (North East Scotland) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rennie, Willie (North East Fife) (LD)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lindhurst, Gordon (Lothian) (Con)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Kerr, Liam (North East Scotland) (Con)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Harvie, Patrick (Glasgow) (Green)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Greer, Ross (West Scotland) (Green)
Greene, Jamie (West Scotland) (Con)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Golden, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Corry, Maurice (West Scotland) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Carson, Finlay (Galloway and West Dumfries) (Con)
Briggs, Miles (Lothian) (Con)
Boyack, Sarah (Lothian) (Lab)
Bowman, Bill (North East Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Ballantyne, Michelle (South Scotland) (Con)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)

Against

Yousaf, Humza (Glasgow Pollok) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lochhead, Richard (Moray) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Constance, Angela (Almond Valley) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

Abstentions

Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)

The Presiding Officer

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

Amendment 59 agreed to.

The Presiding Officer

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

Colin Smyth

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

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

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

The committee recommended that the Scottish Government

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

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

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

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

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

I move amendment 60.

Christine Grahame

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

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

Finlay Carson

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

Mairi Gougeon

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

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

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

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

Claudia Beamish

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

Mairi Gougeon

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

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

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

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

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

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

Colin Smyth

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

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

18:30  



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

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

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

I press amendment 60.

The Presiding Officer

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

Members: No.

The Presiding Officer

There will be a division.

For

Wightman, Andy (Lothian) (Green)
Whittle, Brian (South Scotland) (Con)
Wells, Annie (Glasgow) (Con)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Sarwar, Anas (Glasgow) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rumbles, Mike (North East Scotland) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rennie, Willie (North East Fife) (LD)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lindhurst, Gordon (Lothian) (Con)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Kerr, Liam (North East Scotland) (Con)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Harvie, Patrick (Glasgow) (Green)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Greer, Ross (West Scotland) (Green)
Greene, Jamie (West Scotland) (Con)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Golden, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Carson, Finlay (Galloway and West Dumfries) (Con)
Briggs, Miles (Lothian) (Con)
Boyack, Sarah (Lothian) (Lab)
Bowman, Bill (North East Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Ballantyne, Michelle (South Scotland) (Con)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)

Against

Yousaf, Humza (Glasgow Pollok) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lochhead, Richard (Moray) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Constance, Angela (Almond Valley) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

The Presiding Officer

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

Amendment 60 agreed to.

The Presiding Officer

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

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

Alison Johnstone (Lothian) (Green)

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

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

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

Having been invited by the organisers to speak at the rally, I committed to campaign until that slaughter ceased. The Cabinet Secretary for the Environment, Climate Change and Land Reform also addressed the rally and said that she, too, would act—if she had sufficient evidence.

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

In March 2018, OneKind, the League Against Cruel Sports and Lush released a video that is narrated by Chris Packham that exposes the shocking reality of Scotland’s mountain hare culls. The video aired on national television. Sadly, it provided evidence aplenty. It showed an armed squad of quad bikers wearing balaclavas driving across the Cairngorms national park. What was their aim? Apparently, it was to shoot as many hares as they could. We saw hares suffering from injury and maiming limping off—one was caught by a dog in a drawn-out struggle. I asked the First Minister for her views on that obscene activity and she agreed that such slaughter is unacceptable.

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

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

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

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

Finlay Carson

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

Alison Johnstone

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

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

I move amendment 30.

The Presiding Officer

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

Mark Ruskell

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

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

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

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

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

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

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

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

Mike Rumbles (North East Scotland) (LD)

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

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

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

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

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

Alison Johnstone

Will the member take an intervention?

Mike Rumbles

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

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

Alison Johnstone

Will the member take my intervention now?

Mike Rumbles

Okay.

Alison Johnstone

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

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

18:45  



Mike Rumbles

I never said that Alison Johnstone was not entitled to lodge amendment 30, so I do not know why she defends herself on that point. What I said was that lodging it was unwise. [Laughter.] It is unwise; that is not how law should proceed in our system. We have a proper stage 1 process and a proper stage 2 process, and stage 3 is meant to be about fine tuning of bills through amendments that are based on evidence. However, amendment 30 is not about fine tuning.

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

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

Christine Grahame

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

Mike Rumbles

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

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

Brian Whittle

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

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

Alison Johnstone

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

Brian Whittle

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

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

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

Stewart Stevenson

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

I commend Alison Johnstone’s efforts on the issue and her support of the subject for some years. She referred to the completion of a consultation on 15 September last year. Curiously, that was a mere 15 days before the publication of the bill that is before us. To me, it would have seemed a sensible, rational way of progressing support for mountain hares to have brought that forward as part of the committee’s and Parliament’s consideration of the subject—[Interruption.]—Not yet; maybe later.

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

Alison Johnstone

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

Stewart Stevenson

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

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

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

Edward Mountain

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

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

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

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

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

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

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

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

If members do not believe me, they can go to Creag Meagaidh to see what SNH has achieved with the trees that have been grown. It was done only by culling hares and deer as they moved in. Licensing is not that responsive. As the snow closes in and the hares are forced to the area of—[Interruption.] Does Gillian Martin want to make an intervention? I would be very happy if she would like to do so. If she does not, I am happy to continue.

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

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

19:00  



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

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

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

Mark Ruskell

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

Edward Mountain

That is a decision for the cabinet secretary to make under the management plan. Mark Ruskell suggests that no culling of beavers could take place. I have been involved in management across Scotland, and I know how much money the Government has pumped into trees and re-established riverine habitat. The Cabinet Secretary for Rural Economy and Tourism, Mr Ewing, has rightly pushed the reintroduction of trees and native species to create habitat. It would be a pity if they were all destroyed. I cannot support an amendment that would prevent the removal of problem beavers.

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

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

Claudia Beamish

I want to speak in support of amendment 30.

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

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

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

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

Edward Mountain

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

Claudia Beamish

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

Scottish Labour will support all the amendments in the group.

Murdo Fraser

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

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

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

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

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

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

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

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

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

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

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

Liam McArthur

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

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

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

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

The Presiding Officer

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

Liam Kerr

I will be suitably brief.

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

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

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

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

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

Christine Grahame

I will be brief because it is a late time of night. I very much support Alison Johnstone’s amendment 30.

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

19:15  



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

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

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

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

Mairi Gougeon

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“unless they are satisfied—

(a) that there is no satisfactory alternative, and

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

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

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

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

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

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

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

Alison Johnstone

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

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

Mike Rumbles

Will the member give way?

Alison Johnstone

I will not, Mr Rumbles.

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

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

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

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

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

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

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

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

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

The Presiding Officer

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

Members: No.

The Presiding Officer

There will be a division.

For

Yousaf, Humza (Glasgow Pollok) (SNP)
Wightman, Andy (Lothian) (Green)
White, Sandra (Glasgow Kelvin) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Smyth, Colin (South Scotland) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Russell, Michael (Argyll and Bute) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rennie, Willie (North East Fife) (LD)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lochhead, Richard (Moray) (SNP)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Harvie, Patrick (Glasgow) (Green)
Greer, Ross (West Scotland) (Green)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Boyack, Sarah (Lothian) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Beamish, Claudia (South Scotland) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

Against

Whittle, Brian (South Scotland) (Con)
Wells, Annie (Glasgow) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Rumbles, Mike (North East Scotland) (LD)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Kerr, Liam (North East Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Greene, Jamie (West Scotland) (Con)
Golden, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Corry, Maurice (West Scotland) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Ballantyne, Michelle (South Scotland) (Con)

The Presiding Officer

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

Amendment 30 agreed to.

19:30  



Amendment 56 moved—[Mark Ruskell].

Amendment 56A moved—[Mark Ruskell].

The Presiding Officer

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

Members: No.

The Presiding Officer

There will be a division.

For

Wightman, Andy (Lothian) (Green)
Stewart, David (Highlands and Islands) (Lab)
Smyth, Colin (South Scotland) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Harvie, Patrick (Glasgow) (Green)
Greer, Ross (West Scotland) (Green)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Boyack, Sarah (Lothian) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)

Against

Yousaf, Humza (Glasgow Pollok) (SNP)
Whittle, Brian (South Scotland) (Con)
White, Sandra (Glasgow Kelvin) (SNP)
Wells, Annie (Glasgow) (Con)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Simpson, Graham (Central Scotland) (Con)
Russell, Michael (Argyll and Bute) (SNP)
Rumbles, Mike (North East Scotland) (LD)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rennie, Willie (North East Fife) (LD)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lochhead, Richard (Moray) (SNP)
Lindhurst, Gordon (Lothian) (Con)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kerr, Liam (North East Scotland) (Con)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Greene, Jamie (West Scotland) (Con)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Golden, Maurice (West Scotland) (Con)
Gibson, Kenneth (Cunninghame North) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Davidson, Ruth (Edinburgh Central) (Con)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Corry, Maurice (West Scotland) (Con)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Carson, Finlay (Galloway and West Dumfries) (Con)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Ballantyne, Michelle (South Scotland) (Con)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

The Presiding Officer

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

Amendment 56A disagreed to.

The Presiding Officer

I ask Mark Ru