Chamber and committees

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. MSPs 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.

Thank you. Will the commission talk us through the recommendations that you have made and how you expect HMIP’s independent review of the response to deaths in prison custody to be acknowledged by the Parliament?

Obviously, it is a very important report. What power does the SHRC have over the Parliament to ensure that it carries out the recommendations that you have made? What is the process for that? In the past, were those reports put to one side if the Parliament decided not to take up the recommendations? Is it in the Parliament’s gift to be able to take this forward or can the commission put pressure on parliamentarians?

Mr Duddy, if I am right about what you are saying, I am not sure whether you referenced Ms Alsalem’s letter correctly. She said:

“However, I share the concern that such proposals would potentially open the door for violent males who identify as men to abuse the process of acquiring a gender certificate and the rights that are associated with it. This presents potential risks to the safety of women in all their diversity (including women born female, transwomen, and gender non-conforming women).”

I want to put that on the record.

Will the committee see your response to the UN special rapporteur? When is it likely to be completed? We know that women’s services can use exceptions in their services for trans people through the Equality Act 2010, but why do you think that Reem Alsalem talked about her concerns around the access to single-sex spaces for women? Will you address that in your response, and will you invite the Scottish Government to broaden its discussions, examinations and reform processes beyond the changes that it wishes to introduce to the Gender Recognition Act 2004? It is important that we recognise that women feel safe, as well as trans people. Will that be part of your response to the letter?

You can imagine that my next question was going to be about the time lag between the reporting and the result, but I will not ask that.

Just to be clear, are the biosecurity measures exactly the same as those in England?

I have a question on the current biosecurity measures. You mentioned that whether somebody has five, 500 or 5,000 hens—whatever it might be—there are fines for not adhering to biosecurity measures such as vermin control. Is that correct?

As you said, the measures are successful only if everybody adheres to them. Is there any way of monitoring that? How is it monitored, even if avian flu is not prevalent in a particular region of Scotland? To whom does one report an incident of avian flu? Is it reported through the Department for Environment, Food and Rural Affairs or is there a specific Scottish helpline?

Do you monitor that?

As a result of freedom of information requests, reports have been obtained of a number of culls. How many culls have there been in Scotland?

What is that as a percentage of the total flock in Scotland?