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Will the member take an intervention?

I will give an overview in relation to amendment 212 and the other amendments in my name in the group.

Section 5 limits the use of a dog below ground to the hunting of fox and mink, which reflects the existing provision in the 2002 act on the use of a dog below ground. However, there has been a failure to recognise that rabbits are excluded from the scope of the 2002 act but are included in the scope of the bill. If rabbits are to remain in the scope of the bill, that must be recognised in section 5. There is no logical reason to allow a dog to go below ground to flush a mink or a fox but not to flush a rabbit. In other exceptions in the bill, the term “wild mammal” is used; that term should be used in section 5.

It would be beneficial to avoid the anomaly of permitting someone to use a ferret but not a dog to go below ground to flush a rabbit. My proposed approach would future proof the legislation should it ever be necessary to control any other below-ground-dwelling mammal or non-native species.

Amendments 212 to 216, 221, 222 and 225 would retain some of the wording of the existing legislation. The Protection of Wild Mammals (Scotland) Bill was substantially amended during its parliamentary stages to reflect the evidence and reality when it comes to wildlife management on the ground. ���˿��� listened to evidence from people who undertook control on the ground. As a result, the 2002 act recognises that there are enclosed or secure places that might not technically be below ground level and in which dogs might need to be deployed in the same way as they would be if the wild mammal was below ground. Foxes frequently reside or seek refuge in places that it could be argued are above ground, such as on rock faces or in cairns or rock piles. My approach would provide additional clarity by ensuring that terriers could be deployed, where necessary and appropriate. Lord Bonomy was clear about the importance of terrier work, as was the Rural Development Committee in its 2001 report on the Protection of Wild Mammals (Scotland) Bill at stage 1.

On amendments 217 and 226, the purpose of allowing a person to use a dog below ground is to enable fox control and effective wildlife management. There is no reason why the use of a dog in those circumstances should be limited to the protection of livestock and should not be allowed for environmental purposes, such as protecting vulnerable ground-nesting birds—for example, curlew and capercaillie. If the activity is acceptable for one purpose, it should be acceptable for all purposes that are identified in the bill. That is the approach of the 2002 act, and there is no logical reason to change it. Amendments 217 and 226 seek to retain that aspect of the 2002 act.

It is worth recalling the conclusions of Lord Bonomy and Lord Burns on the importance of terrier work. Lord Bonomy noted:

“The material presented to the Review is persuasive of the need for the use of terriers to ensure the despatch of a fox gone to ground.”

He went on to say:

“there is no ... scientific evidence of the extent of the impact on the fox. Indeed it was observed in the Burns Report that the banning of hunting could have an adverse effect on the welfare of foxes in upland areas unless dogs could be used at least to flush foxes from cover. The same would apply in the case of young cubs orphaned below ground in a den.”

On amendments 218 and 227, clear evidence was provided to the committee that, although ordinarily only one dog should be used below ground at any one time, there are circumstances in which more than one dog is needed to flush a fox effectively. There can be good welfare reasons for that.

That is the reason why the National Working Terrier Federation code is worded as it is and why Lord Bonomy’s recommendation is worded accordingly. That is the wording on which the Scottish Government consulted ahead of the bill’s introduction. In its consultation on Lord Bonomy’s recommendation, the Scottish Government asked:

“Do you agree with Lord Bonomy’s suggestion that the legislation should impose a restriction in line with the Code of Conduct of the National Working Terrier Federation that, wherever possible and practical, only one terrier should be entered to ground at a time?”

Lord Bonomy’s recommendation was subject to the caveat that any restriction to one dog would apply wherever possible and practical. In contrast, the bill creates an absolute restriction to one dog, which goes beyond his recommendation.

Rule 3(c) of the NWTF code of conduct states:

“It is recommended, wherever possible and practical, that only one terrier is entered to ground at a time. Note: Typical exceptions would be for example if working large cairns, rock piles and similar structures with multiple entrances and exits and no clearly defined tunnel structures, or in the event of a locating equipment failure, or in order to facilitate a rescue.”

The intention of the 2002 act, just like the NWTF code, is to ensure that the quarry is flushed as quickly and safely as possible below ground so that it may be shot and to ensure that the terrier spends the absolute minimum amount of time below ground. That is why rule 3(c) is written in the way that it is. It is about the welfare of the dog and fox or mink.

In certain circumstances and in different types of earth, as described in rule 3(c), the most effective, safe and humane practice may be to enter more than one terrier. The same applies to large areas of wind-blown forestry, which are common in Scotland. Entering a single terrier into some of those places is rather like entering a single dog or two dogs into a large area of forestry. The fox can easily evade a single dog. It does not feel pressured and, instead, skulks about in the place all day long.

The change proposed in the bill would undermine the effectiveness of the use of terriers in some situations and represent a problem for animal welfare. It is worth recalling that Lord Bonomy was clearly supportive of terrier work and the important role that it plays in pest control.

Please bear with me, convener.

On amendments 219, 28 and 220, the revised and shortened definition of “under control” in the bill as introduced would, in effect, prevent the use of dogs below ground. It requires that the person who is responsible for the dog must be

“able to direct the dog’s activity by physical contact or verbal or audible command”,

which has no relevance to the activity that is taking place. Not only is that contrary to best practice but, if followed to the letter of the law, it would have negative welfare implications.

The most basic requirement in using dogs below ground is to ensure that silence is maintained at all times. The quarry must feel that it is more secure if it leaves its earth rather than staying where it is to be chided by a terrier dog. To engage in any form of “verbal or audible command” would only serve to destroy that illusion. It would discourage the quarry from leaving and create an underground stand-off. As the dog is below ground, “physical contact” is not possible either.

The issue could easily be resolved by reverting back to the definition that is used in the 2002 act, which includes the alternative:

“the dog is carrying out a series of actions appropriate to the activity undertaken, having been trained to do so.”

Alternatively, rule 11 of the National Working Terrier Federation code, which requires the use of electronic locating equipment whenever a dog is below ground, could be added as a condition. That equipment enables the handler to track the dog’s movements and location with pinpoint accuracy throughout the process. Today, no responsible terrier owner would even consider permitting their dog to go below ground unless it was wearing a locator collar.

Section 5(3)(b), which requires that

“the dog used in the activity is under control”,

should be deleted if the definition of “under control” is not amended and replaced so that the dog that is used is fitted with suitable electronic locating equipment. That is a far more desirable option, and it has significant additional welfare and practical benefits. Even if the definition of “under control” is amended, there would be merit in adding the fitting of locator equipment as one of the conditions for the use of the dog below ground.

On amendment 224, the bill has omitted provisions from the 2002 act that were included for the welfare of the quarry and the dog deployed. However, there is an opportunity to put in further measures to safeguard welfare by requiring the use of locating equipment and making it clear that, unless netting, nothing should be done to prevent the animal from leaving the place below ground.

Amendment 224 would protect welfare and ensure best practice. The requirement for locator equipment should replace the requirement for a dog below ground to be “under control”, as the current definition of “under control” is not workable in the context of dogs used below ground; the 2002 act recognised that in its definition of “under control”. If the definition is properly amended, the requirement for locator equipment could still be incorporated in the bill.

Will Ariane Burgess take an intervention?

I want to get some clarity on that. You want to remove section 6, but you said that you believe that rural people or rural life—I cannot remember your exact words—should or must change. Does that mean that you want to see a full ban on all country activities that include shooting, rough shooting and anything else? Is that the intention?

Thank you.

Do you think that removing rabbits from the group that are defined as being wild mammals would have an environmental benefit?

Having listened to Colin Smyth’s explanation of the reasoning behind his amendments, I believe that it shows a lack of understanding of management in the countryside. What he proposes would pull the rug from underneath the feet of farmers who want to protect their livelihoods and is completely unnecessary.

With regard to the minister’s comments on damage to crops, livestock and woodland, I do not believe that the proposed removal of the word “serious” is overreaching. She did not describe it as that, but I do not believe that the issue that the amendment seeks to deal with is a trivial one. Amendment 35 would ensure that farmers could protect their livelihoods within the parameters of the Scottish Government’s bill, which the minister has always said she wanted to be practical and workable. We need to ensure that, when we consider proposed legislation, we understand the ramifications for—particularly in the current circumstances—farmers and their ability to use the methods that are within their reach to protect their livelihoods.

Therefore, I am slightly disappointed that the minister has not accepted my point.

Thank you for explaining that, because I was a bit alarmed when I heard the word “trivial”.

I press amendment 35.

On your point about the public wanting to ban fox hunting, is fox hunting not already banned?

Amendments 204, 209, 231 and 234 seek to clarify that a licence may be granted to categories of individuals that suggest some shared characteristic and groups of people, even where they do not necessarily amount to a category. There might be situations in which disparate individuals might need to apply for a licence jointly. As the committee heard in evidence, there might be different types of landholding that require fox control across various holdings if control is to be effective. There is no use in granting a licence to a livestock holding that does not cover adjacent land under different ownership that is without livestock but with large areas of forestry or other cover that act as a reservoir for foxes that predate on neighbouring livestock. The bill must allow sufficient scope for NatureScot to issue licences on the basis of need, whether to individuals, groups or categories of persons.

Amendment 205 is a relatively minor amendment that would allow NatureScot to issue a licence that would cover more than one species. As drafted, the bill states that a licence must be for “a particular species” instead of “particular species”. The amendment would ensure that the bill does not unnecessarily restrict NatureScot’s ability to issue licences as needed and that are practical.

Amendment 22 relates to the consideration of alternative methods of predator control. In oral evidence to the committee, it was stated that effectiveness is to be understood as relating to whether alternatives are practical and possible. There must be clarity in the bill that that is the case and that alternatives that might be effective would not necessarily be practical or affordable. It is important to avoid NatureScot facing legal challenges to licences that have been issued on the basis that it has failed to meet what amounts to a test where it must be satisfied that there is no alternative that would be effective. What really matters is whether the use of more than two dogs is necessary and whether that would make a significant contribution to the purpose for which a licence is granted.

The proposed new wording through amendment 22 would recognise, as the current wording does not, that the use of dogs to flush to guns under licence does not mean that other methods of fox control would not carry through alongside licenced control using dogs. Indeed, control is normally achieved using a combination of methods that complement one another and can be used concurrently. There is a danger of thinking that it is an either/or scenario; the reality is that successful fox control involves a variety of methods. Which methods are used; when, where and how they are used; and the combination of methods that are used at any given time will depend on terrain and other considerations that are best decided by the people who conduct the control of wildlife management on the ground.

Amendments 206, 23, 210, 34, 233 and 235 relate to a legal duty on NatureScot that it simply cannot discharge. NatureScot could not rationally reach a decision on the minimum number of dogs that were required for a given task. For example, on what evidential basis could it make a decision to allow eight dogs but not 10 dogs and that it should be eight and not seven or six dogs? Moreover, a person with a licence might be using dogs over a variety of terrain and cover, even on a single landholding. In relatively open country with limited cover, six dogs might be sufficient, but a far greater number might be required for a 1,000-acre block of forestry, for example.

The amendments would remove that burden—and the obvious risk of legal challenge to licences—and replace it with a more workable solution. It is proposed that a condition of the licence is that the people who are licensed use only the number of dogs that is appropriate in the circumstances. I think that that is part of the nature of the bill. That could be reinforced by a reporting requirement so that, if required, a person would have to explain and justify their decision on how many dogs to deploy at a given time and place.

Amendments 207, 208 and 24 would extend the period of time during which a 14-day licence could be used from 14 days to 12 months from the date on which the licence was granted. That would allow the licence to be used on a given number of days as part of the continuous process of predator control. It reflects what was accepted by all sides in oral evidence, which is that control is preventative, not simply in response to damage having been suffered.

The existing wording fails to recognise this reality that fox control is a year-round activity and that it is conducted using a variety of methods, depending on factors such as terrain and the time of year. Creating a fair and workable licensing regime, as has been described by the minister, is vital if effective fox control is to remain possible across larger parts of rural Scotland. Those amendments will help to achieve that.

During evidence to our committee, several witnesses, including the minister, noted that it was not possible to specify in the licence the number of guns to be deployed. It is hard to understand how NatureScot must specify the number of dogs and how it is rational to determine a specific number of dogs but not guns. For both the number of dogs and the number of guns, what is appropriate will depend on the circumstances. As with dogs, it should be a requirement that a licensed person is to be responsible for ensuring that an appropriate number of guns are deployed. That could be reinforced by a reporting requirement so that, if required, the person would have to explain and justify their decision about how many guns were deployed at a given time and place.

Lord Bonomy was also of the opinion that the number of dogs was not a problem and that reducing it to two would not change the situation other than by bringing the practice of flushing to guns to an end. Instead, he said that having a sufficient number of guns was the thing that mattered most. In Lord Bonomy’s words:

“I think that the number of guns is vital. As I have said, the different way that the foot packs went about it did not seem to me to involve a chase”.—[Official Report, Rural Affairs, Islands and Natural Environment Committee, 15 June 2022; c 47.]

Amendments 211 and 236 reflect that there are statutory conditions that apply to all licences, but there may be other additional conditions that are not explicitly required by the legislation, including ones that relate to the statutory conditions themselves.

Amendment 25 would provide a definition of an “approved professional body” in the bill for clarification on that point. It would also require ministers to create a code of practice for the purpose of a licensing scheme. That is because a definition of an approved professional body alongside a code of practice is required for the licensing scheme to function effectively. Licence holders would be expected to adhere to the code, and it would set out what was expected of them.

Amendment 232 would mean that, as would be the case with rough shooting, a licence holder would be able to specify more than one species of wild mammal when making an application. As the committee heard in evidence from BASC, a licence applicant could be dealing with more than one pest species at a time, but the bill as drafted would not make allowances for that. This amendment circumvents that issue.

Amendment 33 relates to the condition in the bill that the relevant authority may not issue a licence unless it is satisfied that

“killing, capturing or observing the wild mammal will contribute towards a significant or long-term environmental benefit, and ... that there is no other solution which would be effective in achieving the purpose set out in section 7(2) in relation to which the application for a licence is being made”.

That part of the bill is unnecessarily prohibitive. I have already discussed the matter of whether hunting with dogs should be a last resort, as this section would require. However, I am proposing an amendment that is less prohibitive while still showing that the aims as set out in section 7(2) would be met.

As I have already said, using dogs to help to control predators and pest species is often the most practical solution, and they can be used in tandem with other control methods for maximum efficiency. It is less practical to propose, as the bill does, that this should be an all-or-nothing choice between maximum control and inadequate control, depending on those arbitrary conditions. Amendment 33 would allow the right balance to be struck by the licensing scheme.