Chamber and committees

No. I am summing up.

We are banning the use of snares in Scotland except in a very small number of ways, which are designed to aid public safety, animal control and wider conservation and biodiversity objectives.

I listened carefully to what Colin Smyth said, but I cannot support his amendments, because I do not think that they are necessary.

I want to mention the exceptions that I have noted. One could be the use of devices for the ringing of birds for conservation or data collection reasons, as the British Trust for Ornithology might do, for example. I also mentioned the animal welfare and animal rescue charities that might use certain devices. I want to have a belt-and-braces approach. That aspect might not have been identified in the Welsh legislation, but it is important to have exceptions in the bill, in case the ban has any unintended consequences.

I encourage members to support my amendment 54 and to outlaw, once and for all, a practice that has no place in 21st century Scotland.

I think that I have made it clear that I am sympathetic to the argument that there might be some settings where we cannot have an infestation and where pest controllers might have to use these traps as a last resort. At the moment, though, I find it difficult to see how that would work in practice, given everything that I have said about pest controllers not being an accredited title for which you need a qualification.

All I can say to Mr Mountain, then, is that I need to give this an awful lot more thought with my officials and see what levers are available to us. I am still not wholly convinced that an outright ban is not the way to go.

There are a couple of moving parts here, too. I have still not had any agreement from the United Kingdom Government on the exemption under the United Kingdom Internal Market Act 2020. Several letters have gone back and forth, and a meeting to discuss the matter with UK Government ministers was cancelled at the very last minute, so I have not had satisfaction there. There are a lot of balls up in the air in relation to this matter, which is why I have not lodged my proposed amendments here. If I had been able to lodge them, I could have spoken to them. That is all that I can really say on the matter.

I understand why Edward Mountain has lodged his amendments, but I do not think that his proposals are workable in practice, given the licensing scheme that he outlines. His proposals are not doable, given how the amendments are written.

I will speak first to my amendment 55. The issue of trap tampering was discussed at length during the committee’s stage 1 evidence sessions. I listened to the evidence, particularly from the Scottish Gamekeepers Association. Indeed, I met representatives of the SGA and had a constructive conversation with them. I listened to other stakeholders involved in land management, too.

I note the extent to which trap tampering happens and the impact that it has on land managers’ ability to do their job—to carry out their lawful activities. There might also be consequences for animal safety and welfare if a trap is tampered with. I understand the concerns of land managers about vexatious complaints and the fear of losing their licence or being prosecuted, but that is not what the trap licence seeks to do. I do not want responsible users to lose their licence unfairly or due to the unwarranted or irresponsible interference of others.

During the evidence sessions, Mike Flynn of the Scottish SPCA agreed that there should be a specific offence of interfering with a lawfully set trap. He stated:

“If it is lawfully set, any suffering should be minimised, but that is outwith the setter’s control if the trap is tampered with.”—[Official Report, Rural Affairs and Islands Committee, 14 June 2023; c 46.]

My amendment 55 would make it an offence to tamper with a trap to which the wildlife trap licence scheme applies so that it no longer complies with the licence requirements, or to disarm or destroy such a trap unless the person has a reasonable excuse for doing so. It also adds the offence of knowingly causing or permitting another person to tamper with, disarm or destroy such a trap. I encourage all members to vote for amendment 55.

It is fair to say that amendments 57 and 58 aim to achieve the same purpose as the offence provided for in amendment 55. Therefore, I ask Ms Hamilton not to move her amendments. If she does move them, I encourage committee members to vote against them, as amendment 55 does exactly the same thing.

Amendments 177 and 178 seek to change the wildlife trap licence scheme to apply to traps that are used for the purpose of taking a wild bird or killing or taking a wild animal. I appreciate that Edward Mountain has lodged those amendments to reflect the fact that, currently, no traps can be legally used to kill wild birds. Leaving proposed new section 12A(1) of the 1981 act as it is would have no immediate effect, as there are no traps that can be used for the purpose of killing wild birds.

The Werritty review recommended that traps that are used to take wild birds be subject to greater regulation due to the strong links between the misuse of that activity and raptor persecution. I have also made it clear that the bill should be future proofed so that we have enabling powers to amend the types of traps to which the licence applies by secondary legislation. It would stand to reason that, if any traps were ever allowed to be used to kill wild birds, they, too, should be subject to the licence scheme. Again, it is future proofing.

Edward Mountain’s amendments would mean that if, in future, a trap should be devised that could legally be used to kill wild birds, a licence would not be required to kill them, only to take them. That would have the result that there would be a higher level of oversight for using traps to take wild birds than for using traps to kill them, which would be problematic. For those reasons, I cannot support amendments 177 and 178 and I encourage committee members to vote against them.

Colin Smyth’s amendment 109 would add traps that are used for the live capture of wild animals to the trap licence scheme if the animals are trapped with the intention of their later being killed. I understand why Colin Smyth has lodged the amendment, and it seems reasonable to include in the bill. As is set out in the policy memorandum, the measure was considered when the bill was developed and drafted. However, I came to the conclusion that there was not enough evidence to justify adding such traps to the licensing scheme at this time, and the Werritty review did not recommend their licensing.

The intention of a wildlife trap licence scheme is to reduce the use of traps that illegally capture raptors. There is no evidence that people using traps for the capture of live animals have used them with that intent, nor do I think that such traps would be capable of capturing a raptor. I have had discussions with NatureScot and stakeholders who are involved in wildlife management, and it has become clear to me that those traps are used by a number of different groups for a wide range of purposes that are often unconnected with grouse moor management, including conservation and research purposes.

Therefore, I am concerned that adding such traps to the licensing scheme at this stage could give rise to unintended consequences. However, I appreciate that circumstances can change and that new evidence can come to light. I assure Colin Smyth that that is why the bill contains powers to allow other types of traps, such as the ones used for the capture of live animals, to be added to the licensing scheme through regulations following consultation. It is also worth noting that the bill does not change the fact that anyone using such a trap to take a protected animal will still require a species licence from NatureScot and would have to comply with the Animal Health and Welfare (Scotland) Act 2006.

I hope that what I have said satisfies Colin Smyth that sufficient safeguards exist currently. We have powers in the bill to address any issue in the future. Therefore, his amendment 109 is unnecessary and could, in fact, have unintended consequences. I ask him not to move it. However, if he does move it, I encourage committee members to vote against it.

I turn to amendment 110. The bill offers the safeguard of a defence to the offence of catching an unintended animal if the trap user has taken “all reasonable steps” to prevent the catching of any unintended animals. Amendment 110 would change the wording in that defence from “all reasonable steps” to “all practicable steps”.

The defence was included to account for a situation in which a person has complied with the requirements of the trap licence but catches an animal unintentionally, when doing so could not have been foreseen—for example, if they had lawfully set a trap to catch a weasel but unintentionally caught a badger.

In the majority of cases, what is reasonable will also be what is practicable. It would not be reasonable to ask someone to do something impracticable. I appreciate that that sounds a little convoluted, but there is a substantive amount of case law on the reasonableness test. That is why I have used the wording that I have used.

Further, the word “reasonable” was used in the bill to maintain consistency with provisions in the Wildlife and Countryside Act 1981. It is important to do what we can to avoid unnecessary confusion. For that reason, I ask Colin Smyth not to move amendment 110. If he does so, I encourage committee members to vote against it.

I confirm that including traps for birds is not my intention. It is about future proofing the bill should any modifications come about for future traps that might exist. I noticed that Edward Mountain had a little bit of a smile on his face when he suggested that. That is not my intention at all.

Before I speak to your amendments, convener, I clarify that “Scottish Natural Heritage” is the term that is used in legislation, whereas “NatureScot” is the organisation’s public-facing brand name. They are names for the same organisation. I understand that that can become a little confusing, but I consistently refer to it as NatureScot.

With the greatest respect, I believe that Finlay Carson’s amendments 78, 80, 19, 93, 41, 103 and 105 are unnecessary. The bill contains a set of enabling powers to allow Scottish ministers to modify, by Scottish statutory instrument, provisions relating to wildlife traps, section 16AA licences and muirburn. Such modifications are subject to the conditions that are set out in the bill, including the requirement to consult. Any changes that are made under those provisions are already subject to the affirmative procedure.

The policy note for SSIs that are laid in the Scottish Parliament contains a consultation section that outlines the form of consultation that has been conducted. The policy note also contains the reasons for introducing the SSI, which will normally include the views of stakeholders. I therefore do not see any need to set out in the bill a requirement to publish consultations that are undertaken in relation to use of the enabling powers. I encourage members to vote against the amendments.

Likewise, I will not support amendments 84 and 100. They would add the requirement to publish the results of consultation undertaken while preparing, reviewing or revising the muirburn code, or the code for section 16AA licences, and to give reasons for the decisions that had been taken.

It is standard practice for Scottish ministers to consult interested parties on such matters, and we regularly share and publish consultation responses. As I set out in my letter to the committee last week, when I provided an update on the development of muirburn and grouse moor management codes, interested parties have been consulted continually and have been included in the process of developing the codes. I therefore see no reason to set such matters out in primary legislation. I encourage members to vote against the amendments.

I turn to Edward Mountain’s amendments 19 and 41. On amendment 19, the provisions in the bill set out that when preparing, reviewing or revising the code of practice for grouse licences, Scottish ministers must consult

“any other person they consider appropriate”.

It is fair to say that land managers would fall into that category, so, in my view, we do not need to provide for that specifically in the bill.

Similarly, on amendment 41, it is clear to me that land managers are likely to be interested in or affected by muirburn, so Scottish ministers would already be required to consult them when considering amending the dates for the muirburn season. However, I have listened to what Mr Mountain has said—

I might be about to give you some comfort in my next paragraph. Perhaps I could get to the end of that, and then I will—

I genuinely cannot think of any consultation that I have been involved in, in the time since I have been a minister, whose results have not been published. Such publication is standard practice in the Scottish Government.

A financial memorandum is essential for any bill that has been introduced. The estimates were based on the stage that we were at. However, we need to allow the wider review to conclude.

On the questions about the cost of a particular licence, I have just said that all the licensing fees, the cost recovery and how the licences work will be reviewed by NatureScot. If I were to say anything about a particular licence today, that would pre-empt the analysis that NatureScot will do. We have to allow it to get on with that work, as instructed by the minister responsible.

Amendment 56 inserts a requirement for any application for a wildlife trap licence to include evidence that the applicant has completed an approved training course.

The bill currently provides that the licensing authority, which I expect to be NatureScot, has the ability to determine what information is to be supplied alongside a wildlife trap licence application, which could include evidence of training. However, having reflected on the issue, I think that it would be more transparent to have the requirement for evidence of training stated in the bill, as that would make it clear to all applicants that they are required to complete an approved training course and to provide proof of that when applying for a licence. Requiring the applicant to provide proof of relevant training when they submit their application will aid the relevant authority in determining whether a licence should be granted. I encourage members to vote for my amendment 56.

Edwards Mountain’s amendments 10, 10B and 11 would have the effect of requiring NatureScot to grant a licence if the applicant had completed the training or was born after 31 December 1983 and had used the type of trap in question professionally for at least a decade. If an applicant met the age and professional experience criteria, they would be exempt from any requirement to undergo training. I encourage the committee to reject those amendments. The wildlife trap training requirement is not about telling people how to do their job; it is about recognising that the use of wildlife traps requires an appropriate level of skill and training if we want to avoid any adverse welfare outcomes in the future.

The requirement in the bill that wildlife trap users should undergo appropriate training has been largely supported by stakeholders. Land managers have told me that they already undertake a lot of training, and I am conscious that there are many people involved in grouse moor and wildlife management who have significant knowledge and expertise—and they seem to be pleased to evidence it. The purpose of the training requirement is to incorporate all that experience and learning, ensuring that everyone using wildlife traps has high standards across the board, which they can evidence.

I will quote from the committee’s stage 1 evidence. Alex Hogg, chairman of the Scottish Gamekeepers Association, said that the SGA was

“up for doing the trap training and getting it right. Whatever you decide on, we will comply with it”.—[Official Report, Rural Affairs and Islands Committee, 14 June 2023; c 43.]

Regarding the exemption based on age, I do not think that we can assume that someone, just because they are over 40, will automatically have all the right skills. They may have been using the trap incorrectly for a number of years, or they might not be aware that there are new legal requirements, such as a change in the baffle size. The purpose of the training requirement is to ensure that high standards are maintained and are consistent through continuous professional development. The bill requires a person to use a trap in accordance with the approved training course. If they do not, they will have committed an offence.

By not requiring certain people to undergo training and refresher training, there is the potential that they may not have the knowledge to comply with the requirement to operate the trap in question in accordance with the approved training course. That would be setting them up to fail.

For those reasons, I cannot support amendments 10 and 11, and I encourage committee members to vote against them.

Rachael Hamilton’s amendment 10A would remove the requirement in amendment 10 that a trap user must be born on or before 31 December 1983. That would address concerns that I have about amendment 10 in relation to the age of an applicant. For that reason, I fully support amendment 10A, as it would mitigate some of the issues that I have with amendment 10. On that basis, I would encourage committee members to support amendment 10A.

I will be clear, however: even with the changes contained in amendment 10A, amendment 10 would still allow a wildlife trap licence to be issued to any applicant who has completed the training course and has used the type of trap in question in a professional capacity for a period of at least 10 years consecutively, regardless of their suitability. I therefore cannot support amendment 10. Even if members are minded to vote for amendment 10A, I would still hope that they will vote against amendment 10 as amended.

Colin Smyth’s amendment 113 would impose a condition that a trap licence could not be issued if it was for the primary purpose of managing the number of wild birds that are available for sport shooting. Grouse shooting makes an important contribution to the rural economy and provides jobs in rural and island communities. The bill is not about stopping or outlawing that activity. Predator control is carried out in Scotland for a variety of purposes, including on grouse moors. I have concerns that limiting the use of traps on grouse moors could have a detrimental effect on the ability of important rural businesses to undertake legitimate activities. I have made it very clear that the bill is about the management of grouse moors and ensuring that related activities are undertaken in an environmentally sustainable manner; it is not about banning sports shooting.

However, I am clear that anyone who uses traps, whether on a grouse moor or elsewhere, must comply with the law and adhere to all the conditions of their licence. If they do not, NatureScot has the power to take appropriate action. For those reasons, I cannot support amendment 113, and I encourage the committee to vote against it.

Colin Smyth’s amendment 114 proposes to introduce a condition that the licensing authority can grant a wildlife trap licence only if the proposed use of a wildlife trap is justified by evidence of harm caused by the species intended to be killed or taken, and if no other method that is non-lethal or has a lower animal welfare impact would be effective in reducing that harm. With all respect, amendment 114 misunderstands the purpose of the wildlife trap licence, which is to apply it to the individual, not to the land or the purpose for which trapping is carried out. Individuals may trap a range of species for a variety of purposes, and they may do so professionally or not. The requirement to evidence harm and to show that other non-lethal methods are not effective would be onerous to administer, and it is likely to have wider unintended consequences, as many farmers and crofters utilise traps for reasons that we have discussed many times, including today.

As part of the Bute house agreement, we have committed to reviewing the wider species licensing system, not just for cost recovery reasons but with a view to ensuring that lethal control is licensed only where the relevant conditions are demonstrably being met. As well as considering issues such as cost recovery, the review will provide an opportunity to examine the whole system and how it operates. It will also ensure that welfare principles are part of the system. That review is the appropriate place to consider all issues relating to wildlife licensing. For those reasons, I cannot support amendment 114 and I encourage committee members to vote against it.

Amendment 115 requires that trap licences specify the maximum number of traps for which the licence holder may be responsible at any one time and the location where the traps may be used. As I have already said, the wildlife trap licence applies to the person rather than the land on which it is to be used. Limiting the maximum number of traps and the locations where a person can use their traps could result in issues for licence holders, as many of them trap animals professionally and could require to use traps in numerous locations, even nationwide. As some trap users work on behalf of estates in multiple places, the effect of amendment 115 would be to create an additional administrative burden should they change job, as well as limiting their ability to earn a living.

Limiting the locations would impede the use of the traps under the licence, as target animals may move out of the licensed area, so a licence holder would be unable to trap the target animal unless they applied to the relevant authority to have the licence updated—by which time the animal could have moved again. That requirement for regular updating of the licence would add an unnecessary administrative burden for the relevant authority, which would need to process the updated licence every time that a trap was moved.

In short, the requirements of amendment 115 would be unworkable in practice. They are neither appropriate nor proportionate. For those reasons, I cannot support amendment 115 and I encourage the committee to vote against it.

Under amendment 116, the wildlife trap training and licence would have to be renewed every five years. In his review of grouse moors, Professor Werritty recommended

“That any operator dealing with the relevant category of trap (cage and/or spring) should undergo refresher training at least once every ten years.”

The Scottish Government has accepted Professor Werritty’s recommendation and has heard no representations from stakeholders that that time interval should be reduced.

Edward Mountain has raised concerns about the proportionality of the wildlife trap training requirement. There are concerns that it places an undue burden on people who are already well trained. I do not necessarily agree with those concerns. However, increasing the frequency of refresher training to every five years goes too far, in my view. The period of 10 years that is set out in the bill is a maximum, so NatureScot can already choose to grant a licence for less than 10 years if it thinks it appropriate in the circumstances of an individual licence application. I believe that that approach strikes the right balance between the licensing authority having proper oversight of the scheme and maintaining animal welfare standards and not placing an unnecessary burden on rural workers. For those reasons, I cannot support amendment 116 and I encourage committee members to vote against it.

Amendment 117 would require trap licence holders to maintain records and report annually on the number and species of all animals killed or taken in traps. I do not believe the amendment to be necessary, as the bill already allows NatureScot to add any conditions to a licence that it considers appropriate, which would include reporting requirements. Amendment 117 would tie NatureScot’s hands if, for example, it wanted to receive reports more or less frequently. For those reasons, I cannot support amendment 117 and I encourage the committee to vote against it.

Amendment 118 would add the requirement that every wildlife trap licence be subject to the condition that the use of traps under the licence must be undertaken in accordance with the highest possible standards of animal welfare. I believe that the amendment is also unnecessary, because those animal welfare standards will be embedded in the scheme as part of the trap training, and traps must be used in accordance with that training. For those reasons I cannot support amendment 118 and I encourage committee members to vote against it.

I move amendment 56.

My expectation is that the person who wants a licence to operate traps will be trained as part of the licensing of the traps that they want to operate and that the training will be comprehensive. I imagine that, off the back of this, a range of courses will be accredited by the licence developer, NatureScot, which will be looking at what those courses offer. You have listed a great number of traps, and it is my expectation that, if a person wants to operate all those traps, they should have a working understanding of and training in how to work them safely.

Amendment 56 agreed to.

Amendment 1 not moved.

Amendment 112 moved—[Rachael Hamilton].