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Will you repeat the statement?

It was specifically to do with the threatened status of the mountain hare as a whole.

Amendment 170 is a technical amendment. As has just been discussed, the exception under section 7 allows dogs to be used to control wild mammals for purposes that have an environmental benefit.

Section 7(2)(a) as drafted allows a person to use up to two dogs or more than two dogs under licence to search for, stalk, or flush wild mammals for the purpose of

“preserving, protecting or restoring a particular species”.

Amendment 170 inserts the words “for environmental benefit” at the end of that provision. Without the amendment, it would be possible for a person to use two dogs to manage wild mammals for the purposes of protecting a particular species, even if that would not amount to or result in an environmental benefit. The amendment is therefore required in order to make clear that the preservation, protection or restoration of a species must have an environmental benefit attached to it. Again, it is about consistency of expression.

I will not be supporting amendment 229, in the name of Rachael Hamilton. The reason for the inclusion of the word “scheme” in section 7 is that I believe that, where dogs are being used to control wild mammals for environmental benefit, it should be done to meet a specific objective as part of an overall plan, and not ad hoc. That is important not only for the purposes of section 7, but equally because it is linked to the issuing of licences on that basis. We must require a person to have a plan before they allow dogs to control wild mammals.

Likewise, I cannot support amendment 31, in the name of Rachael Hamilton, which is linked to amendment 229 and requires

“a definition of ... a scheme”,

although I note that it does not suggest one. Where a term is not specifically defined in the bill, it will rely on its ordinary meaning. A scheme means a plan, a design or a programme of action. It is not necessary to include a definition in the bill where a word simply takes on its ordinary meaning. The explanatory notes that accompany the bill set out that

“the requirement for a scheme means that the activity has to be planned and designed for one of the subsection (2) purposes.”

That activity could be anything from the larger-scale projects that we discussed last week—involving stoats on Orkney, for example—or an individual gamekeeper planning a deer cull. However, for any stakeholders who would like more clarity, I intend that further information about what constitutes a scheme for the purpose of applying for a licence under the section 7 exception will be set out in the licensing guidance that will be produced should the bill be passed. That information would be read across to the use of the exception without a licence—that is, using up to two dogs.

For those reasons, I ask Rachael Hamilton not to press or move her amendments.

It is exactly as I said in my previous point: it is to achieve consistency of language with the stop and search powers that we are introducing and so that those powers mirror what is in the 2002 act.

Yes.

Amendment 175 introduces powers for a constable to stop and search a person without warrant where that constable has

“reasonable grounds for suspecting that a person has committed or is committing an offence”

under the bill. It includes powers for a constable to

“search or examine any thing found in the course of a search”

and to

“seize any thing found in the course of a search”.

Where a constable has reasonable cause to suspect that a person has committed an offence under the Protection of Wild Mammals (Scotland) Act 2002 and to suspect that evidence of the offence is to be found on the person, section 7 of the 2002 act allows them to stop and search the person in question.

Of course, stop and search powers should not be conferred lightly. However, having reflected on comments that were made by the police at stage 1 of the bill’s progress through the Parliament, and having considered the powers that are available to the police under other legislation on wildlife, we consider it appropriate to include in the bill powers for the police to stop and search a person on similar terms to those in the 2002 act.

Amendments 177 to 179, in my name, change the test in the bill’s schedule for empowering a constable to enter premises from one where that constable has reasonable grounds for “believing” that a relevant offence has been committed to one where they have reasonable grounds for “suspecting” that such an offence has been committed.

Section 13 of the bill introduces the schedule that makes the provision about the powers for constables. Currently, there are powers for constables to enter premises together with powers associated with entry, including those of search and seizure. Amendments 177 to 179 make minor adjustments to the schedule so that the wording of the tests for entry and seizure of items is consistent with that for the stop and search powers.

I could move on to speak to other members’ amendments—

I am happy to, convener.

Good morning, everyone.

I will begin with the amendments that Edward Mountain led with and then move on to the others.

The effect of amendments 70 and 98, in Mr Mountain’s name, would be that a person would only have to intend to kill a wild mammal after flushing it from cover. That could create another loophole that could allow a person to prolong the hunting of a wild mammal as long as they intend to kill it, which could clearly be detrimental to the animal’s welfare.

The individual’s intention is also incredibly difficult to prove. That could, therefore, create enforcement problems because, if someone is searching for or flushing a wild mammal using a dog for one of the purposes in sections 3 or 6, they cannot achieve that by simply intending to kill it at some point. It is entirely right that, in those circumstances, the law requires that a person take action to kill the wild mammal

“as soon as reasonably possible”.

For those reasons, I cannot support those amendments.

Amendments 29, 32, 140 and 141, in the name of Rachael Hamilton, would remove the condition to kill a wild mammal

“in a way that causes it the minimum possible suffering”

and replace that with the term “as humanely as possible”, thus reintroducing a test from the Protection of Wild Mammals (Scotland) Act 2002. On the face of it, the amendments might not appear problematic, but we have good reason to require that the wild animal is killed in a way that causes “minimum possible suffering”, as we included in the bill. We deliberately did not use the word “humane”. We considered what that would require in practice, and we tried to be as specific as possible. To do that, we looked to the dictionary definition of “humane”, which is:

“designed or calculated to inflict minimal pain”.

The word “pain” is important there, because we have deliberately referred to “suffering”. The difference is important, because using “humane” would mean that we consider only the physical humaneness of the kill, whereas “suffering” also includes the circumstances that the wild mammal experiences. If we use the term “minimum possible suffering”, a person would not be allowed to put the animal through fear, stress or anguish that causes it to suffer unnecessarily prior to actually killing it. I believe that that is a higher standard and one that we should seek to use. For that reason, I cannot support those amendments.

Amendments 36 to 39, in the name of Rachael Hamilton, would add the conditions to section 3 that dogs may be used to kill a wild mammal in circumstances where the animal has been injured but not killed, the animal is inaccessible and cannot be killed by shooting, or just that killing it in that way is considered humane in the circumstances. Those amendments would, in effect, allow a pack of dogs to kill a wild mammal in certain circumstances, which I think ought to be clear is entirely contrary to the principle of the bill. In fact, we have been clear from the very beginning that preventing and banning the chasing and killing of a wild mammal by dogs is the fundamental premise of the bill, and I think that those provisions could create a very obvious loophole.

In addition to the fact that I cannot condone a pack of dogs killing an injured wild mammal, I am not confident that it would always be possible to establish that a mammal had genuinely been injured prior to being killed by dogs, which would, again, create the uncertainty in enforcement that we have sought to avoid. For those reasons, I cannot support those amendments.

Similarly, amendments 69, 71, 97 and 99, in Edward Mountain’s name, seek to allow a pack of dogs to kill a wild mammal, but do so without any caveats at all. Under those amendments, in our interpretation, a person would only have to attempt to kill a wild mammal before they could set a pack of dogs on it. The amendments would create the glaring loophole of allowing a person to make a token gesture of searching and flushing with two dogs, shooting, missing and then carrying out a hunt with a full pack of dogs. That, again, is contrary to what we are pursuing in the bill, so I cannot support those amendments.

Amendments 114, 120, 125 and 128, in the name of Colin Smyth, pertain to falconry. We rehearsed some of the discussion on this point in last week’s meeting but, to reiterate, falconry is permitted in Scotland as long as it is done in accordance with all relevant legislation. The bill is not about the ethics of wildlife management, or hunting, or falconry for that matter; it is about the regulation of the use of dogs while undertaking those activities. Some falconers will use one or two dogs to flush wild mammals to waiting birds of prey, which is why the bill contains provision to allow wild mammals that have been flushed to be shot or to be killed by a bird of prey. That aligns with the position under the 2002 act.

I understand that, on welfare grounds, some people think that falconry should not be permitted. However, as we discussed last week, it would not be correct for us to use this legislative vehicle to potentially ban lawful activities by the back door.

I wholly support the principle of Colin Smyth’s amendments 115, 121, 126 and 129. I have been very clear that the chasing and killing of wild mammals using dogs has no place in modern Scotland, and therefore I agree that killing a wild mammal in a way that causes it the “minimum possible suffering” can never mean allowing it to be killed by dogs.

Having said that, I have one or two concerns that agreeing to those amendments in their current form could create a degree of inconsistency in the bill. Therefore, if Colin Smyth agrees not to move the amendments today, I would be happy to work with him to draft new amendments at stage 3 that would maintain the consistency of the language that is used in the bill and fulfil what I think he seeks to do with his amendments.

Finally, amendments 203, 223, 226 and 230, in the name of Rachael Hamilton, caveat the condition that,

“if an attempt to kill the wild mammal ... results in it being injured but not killed, reasonable steps must be taken to kill it in a way that causes it the minimum possible suffering”,

by adding the words “in the circumstances”.

Those amendments are not necessary. The bill as currently worded implicitly provides that the minimum possible suffering may depend on the circumstances, because a person can act only in the circumstances in which they are in. The existing condition refers to reasonable steps being taken; therefore, the condition has already been caveated.

I will try to put that simply: the bill already recognises that the reasonable steps that will be taken to kill a wild mammal in a way that causes it the minimum possible suffering will depend on particular circumstances. I worry that, by adding the wording that Rachael Hamilton has suggested, it could be perceived that those provisions allow for the use of dogs to kill a wild mammal in certain circumstances, which is something that I want to avoid. For those reasons, I cannot support those amendments.

When we use the term “relay”, we probably all have different views of what constitutes a relay. In the context of rough shooting, for example, it is permitted and lawful to use two dogs for the activity, but there could be another two dogs on a lead, or somewhere else, that could be swapped in. Therefore, Edward Mountain’s point about the dogs becoming exhausted in the course of a lawful activity is taken account of.

My point is that nobody should use a relay—albeit it that we do not have a definition of that—in order to deliberately prolong the flushing. The only instances that I have heard of are those that Colin Smyth and Ariane Burgess referred to, which involve a relay—if we can call it that—being used to chase stags or course hares, but—

If you do not mind, convener, I will move on to amendments 40 to 56, in the name of Rachael Hamilton, which would remove the ability of the court to make a deprivation order in relation to any horse used in, or present at, the commission of an offence.

Deprivation and disqualification orders can be granted only when a person is convicted of the offence in relation to hunting with dogs or trail hunting. Therefore, they apply to a dog or a horse that is used in, or present at, the commission of the offence. In that regard, the bill makes provision that is similar to the existing disqualification orders in section 9 of the Protection of Wild Mammals (Scotland) Act 2002.

The rationale for including horses within the scope of deprivation orders is to ensure that anyone who is convicted of a relevant offence is deprived of the tools that were used in the commission of that offence. The intention is to limit the ability to reoffend and to act as a deterrent to unlawful activities under the bill.

I should make it clear that we have not singled out the use of horses. The schedule on enforcement powers in the bill allows for the seizure of vehicles to provide evidence of the commission of an offence, and such a vehicle may be forfeited in accordance with part 2 of the Proceeds of Crime (Scotland) Act 1995. Therefore, if a person uses a quad bike or a similar vehicle, there is also a route for that to be forfeited. Horses and dogs are mentioned explicitly in the bill because they are sentient beings and we believe that additional safeguards are required when making orders to remove them.

On amendments 192 and 193, in the name of Ariane Burgess, I agree with her that the welfare of a horse or a dog should clearly be an important factor when a court is considering the imposition of a deprivation order, so I very much support the principle of the amendments. However, I would like to take the opportunity to ensure that they work alongside other, more general provisions for the operation of deprivation orders. Therefore, I ask Ariane Burgess not to press her amendments today. I would then work with her on an amendment ahead of stage 3.

Amendment 108, in the name of Edward Mountain, would restrict the use of deprivation orders so that they could be applied only when the court is satisfied that they are

“necessary in order to prevent the future use of the dog or horse in the commission of a relevant offence.”

I think that that sets an unworkably high bar for the courts. We must all ask ourselves how the court would know whether the dog or the horse would be used in a future offence.

In addition, the amendment would restrict the court’s discretion in respect of the circumstances in which a deprivation order could be made. As an aside, it would also create an inconsistency, given that the requirement would not apply to other uses of a deprivation order—for example, when dogs are seized in badger baiting. For that reason, I will not support the amendment.

Amendment 109, in the name of Edward Mountain, seeks to amend section 17 of the bill to limit the period for which a disqualification order may be granted to 18 months for a first conviction, three years for a second conviction and, for a third conviction,

“such period as the court may determine”.

Again, we are getting into the territory of unnecessarily and unjustifiably fettering the court’s discretion in considering the appropriate period of time for which a disqualification order should take effect. There may be circumstances in which the court should be able to make an order for a long period of time. I would not want to impinge on that, so I cannot support amendment 109.

I move amendment 175.