Chamber and committees

What analysis did you use to come to the conclusion that you wanted to allocate 70 per cent of direct payments in tier 1 and 2 if you did not have foresight or knowledge of future allocations?

For clarity, what is the total funding that you envisage in the 70 per cent of direct payments?

Thank you.

The minister gave a very interesting answer regarding the existing licensing schemes that NatureScot operates. I absolutely have no doubt that they are operated in good faith and that they are reasonable and fair. However, coming on top of the licensing that it has to do under the Hunting with Dogs (Scotland) Act 2023, the licensing in the Wildlife Management and Muirburn (Scotland) Bill will mean that NatureScot will face a further drain on its resources.

The minister will completely understand why I lodged amendment 53—in fact, her answer explained why I did do. She specifically said that consideration is being given to an online licensing scheme and to streamlining the existing licensing scheme to make it more efficient and easier for people to apply for licences. The process has not been easy and straightforward. We were promised that land managers would be given a workable and practical system.

As I said to Alasdair Allan, there is precedent for the inclusion of principles on which licensing schemes can be based. It is not a restrictive approach, and it would not slow down the application process. There are additional examples to the ones that I gave to Alasdair Allan. Principles are included in section 11 of the Good Food Nation (Scotland) Act 2022, section 1 of the Social Security (Scotland) Act 2018, section 1 of the Victims and Witnesses (Scotland) Act 2014 and section 3 of the Patient Safety Commissioner for Scotland Act 2023. Therefore, there is precedent for what I seek to do. It is not true to say that it has not been done before; I am not reinventing the wheel.

I am disappointed that the minister is not even willing to work with me.

I press amendment 53.

Not until I finish my point, if you do not mind, Mr Fairlie.

The financial memorandum sets out an estimate. Could we say that an annual muirburn licence at £250 is fair and proportionate, or could we say that, with a review in six months, land managers have no idea what their likely costs will be? There is no certainty about that in the future.

I think that you—well, not you, minister, but the Bute house agreement—are almost using rural stakeholders to force the issue and to bring forward a review and leapfrog the financial memorandum, although I do understand that the figure is an estimate.

I also highlight the NatureScot cuts. Should we make the point that NatureScot has had funding cuts? Is the Scottish Government expecting the gaps to be plugged by making those cuts? This raises so many uncomfortable questions for me, and I hope that you appreciate—

Beatrice Wishart’s amendment 119 would have the effect of compelling NatureScot to estimate the likely duration of licence suspension. Although we believe that that would be a welcome step, the amendment could be improved by removing the word “estimated”. I recognise that Beatrice has, with caution, noted my amendment subtracting or removing the word “estimated” but might not support it. The minister does not support the amendment, but I think that it would compel NatureScot to be explicit about the duration of the licence suspension—you could not lock rural practitioners indefinitely out of a system, because that would just be unfair.

The amendment would provide both parties, the regulator and the licence holder, with legal certainty. There is no reason why NatureScot should not be explicit or specific, as Beatrice Wishart said, as the threshold for imposing licence suspension and revocation is the same and official investigations no longer have any role in shaping decision making around licence suspension. On that basis, I ask that the member consider supporting my amendment 119A.

On amendment 64, I disagree with the minister. We heard evidence that the Scottish Government’s intention is for licence suspension to be a short-term penalty. However, there is no upper time limit on the period for which a licence suspension can be imposed. When the committee raised that issue with the minister in its stage 1 report, the minister responded, in a letter on 29 November, stating:

“The Bill, as currently drafted, does not provide a maximum time limit for suspending a licence because there is no need to provide this. This is because the maximum duration for a section 16AA licence for the taking of birds is one year. Therefore, it follows that the maximum suspension period for such a licence could not be greater than one year.”

Given that the Scottish Government has committed to significantly extending the duration of the licence, it is necessary to impose an upper limit on the period of licence suspension in the bill. That will ensure that suspension is used as a short-term penalty to meet the Government’s intention.

Given that grouse shooting is a seasonal activity that takes place over 17 weeks in the year, I propose that 18 weeks would be a proportionate punishment to ensure that the maximum period of suspension does not exceed one grouse shooting season. I hope that, with that explanation, the minister can understand the wording of, and the intention behind, my amendment.

To further explain amendment 64, when I met the minister, she was minded to oppose it on the basis that she would not want to tie the hands of Police Scotland or NatureScot in respect of the timescales involved in the official investigation. However, on reflection and considering what the minister said, that point is now redundant, as she intends to remove the initiation of an official investigation as a trigger for licence suspension via her amendments 48 and 52. The trigger for licence suspension or revocation is now NatureScot being satisfied, to the civil standard of proof, that a relevant offence has been committed by a relevant person on the land, not the establishment of an official investigation. It would be useful to get an understanding of that gap from the minister’s closing comments.

It is for the police to determine when and how information and evidence are shared with NatureScot so that it can make a determination about licence suspension or revocation. However, the minister’s amendment removes the connection that I am describing between the length of time that it takes to conduct the investigation and the length of time for which a licence should be suspended. It is therefore appropriate to introduce a maximum period of suspension, which reflects the short-term nature of the penalty, as was expressed to the committee at stage 1.

I thank the minister for considering the framing of amendment 65. I will consider her points. Again, we discussed that amendment when we met. I am happy to bring back a revised amendment. I welcome the fact that the minister agrees that the amendment is sensible and reasonable. I am sure that we can work together on it. I do not need to continue to describe my reason for lodging amendment 65, because I will not move it.

On amendment 66, the bill as drafted provides for penalties to be imposed on licence holders before their right to appeal against a decision to an independent court of law has elapsed. The amendment provides that the penalty will not take effect until the period for making an appeal—21 days from the decision—has elapsed. That would ensure that the licence holder had the opportunity to take legal advice and, if necessary, appeal the decision. It should be for the sheriff to decide, with their discretion, as a truly independent decision maker, whether the penalty should take effect, pending determination of the appeal. If the licence holder decided not to appeal, the decision would take effect 21 days from the date of the decision.

I am sorry, convener, but I am having to be quite descriptive about the amendments in this group, so bear with me.

I am disappointed that the minister said that she will not support amendment 68, but the motivation behind the licensing of grouse shooting is the historical illegal persecution of raptors on grouse moors in Scotland—that is what the bill is all about. The minister said that the bill has become wider in scope, but it follows that the illegal persecution of any raptor is the trigger for removing or suspending a licence to shoot grouse. Unfortunately, the scope of the relevant offences in the bill, as introduced, extends far beyond the defined issue of raptor persecution.

The issue of a relevant offence meaning an offence under the Protection of Badgers Act 1992, the Hunting with Dogs (Scotland) Act 2023, section 1 of the Wild Mammals (Protection) Act 1996 and part 3 of the Conservation (Natural Habitats, &c) Regulations 1994 is, I believe, disproportionate and inconsistent with the defined policy aim of deterring illegal persecution of raptors on Scotland’s grouse moors. Amendment 68 would remove offences that do not relate to raptor persecution, in a bid to make the legislation more targeted, proportionate and rationally connected to the policy aims that were defined by ministers when the bill was introduced.

Amendment 135, in the name of Beatrice Wishart, would have the effect of compelling NatureScot to estimate the likely duration of a licence suspension. Although that is a welcome step, it could be improved by removing the word “estimated”. As I described before, there is no reason why NatureScot cannot be explicit, which would provide further clarity.

Amendment 136 is designed to deliver greater legal certainty in respect of the appeal provisions in proposed section 16AB of the 1981 act. In the evidence session on 28 June 2023, the minister indicated that a sheriff determining an appeal against a licensing decision would have the power to recall, on an interim basis, decisions by NatureScot pending determination of appeals. As things stand, the bill does not expressly empower a sheriff to do so. Although the minister assures me that the sheriff’s general power to make interim orders in civil proceedings, as set out in section 88 of the Courts Reform (Scotland) Act 2014, includes the power to recall decisions by NatureScot, I believe that it would be better to include an express power to that effect in the bill to ensure that the said power is put beyond any doubt, to deliver legal certainty for licence holders.

I would be content for amendment 136 to be revised and to work on that together with the minister to bring it back at stage 3, to ensure that there is no inconsistency or conflict between the express power proposed and the general powers in section 88 of the 2014 act. That could be done, for example, by providing that the express power to recall NatureScot’s decision is without prejudice to the sheriff’s general power to make interim orders under section 88, and that the test for using the express powers mirrors the test in section 88. I have been working and getting advice on that, minister, so I hope that you understand that I feel strongly about that particular amendment and I hope that we can work on it together.

On amendment 73, the requirement of practitioners to determine whether the land is peatland or non-peatland before making muirburn poses a significant challenge. The only way to determine the depth of peat accurately in a given area is by using a peat probe and, even then, it is not practical to probe every square inch of a proposed burn site, as we heard in evidence in this committee. There is always a possibility that some pockets of a burn site might constitute peatland and others non-peatland. The risk is exacerbated by the fact that the bedrock in Scotland undulates significantly, and it follows that practitioners should not be criminalised when it comes to determining whether the land is peat or non-peatland. There is no methodology, as we heard in evidence, so we cannot provide the means to be definitive in that regard.

Amendment 157, in the name of Beatrice Wishart, would have the effect of compelling NatureScot to estimate the likely duration of a licence suspension. Although that is a welcome step, it could be improved by the removal of the word “estimated”. Again, that would provide clarity for the regulator and the licence holder.

Amendment 74, which has been discussed in the context of proposed section 16AA licensing, would address the lack of time limit on the period for which a muirburn licence suspension can be imposed. Given that muirburn is an important land management tool for managing wildfire risks and conservation, it is really important that there is a proportionate time limit on those suspensions, and I propose that that be eight weeks.

I am getting towards the end, colleagues—thank you for your patience.

On amendment 158, the bill as drafted provides that NatureScot will act as prosecutor and judge in relation to its own muirburn licensing decisions, such that they can be challenged only by way of judicial review in the Court of Session, which, as members know, provides a limited remedy and is very expensive. Judicial review does not allow the court to correct bad decisions based on the facts, which is wholly unsatisfactory. The requirement for decisions to deprive a person of their rights to be made on the basis of evidence that proves that they are linked to an unlawful act, and the ability to appeal the decision to an independent judge, go to the heart of the rule of law. Land managers should have the right to appeal against licence refusal, modification, suspension or revocation to an independent court of law on the facts, and this amendment would go to the heart of that.

The internal procedure used by NatureScot under its frameworks for implementing restrictions in the context of general licences, which the minister has described, has led to an erosion of trust in the regulator. That is in no way to play down what it does, but an unintended consequence could be that it is perceived to be effectively marking its own homework. We heard evidence that suggested that that could be the case when it comes to reviewing its own licensing decisions, which cannot be appealed to a sheriff court on their merits. As I have said, the right to be able to appeal a decision to an independent judge goes to the heart of the rule of law.

Thank you for your patience, convener.

Yes—sorry. I thought that you had not heard me.

May I make some concluding remarks, convener?

Various colleagues have just shared a lot of information around this grouping of amendments, and I want to pick up on a few points.

First, it appears that John Mason is saying that rural stakeholders should foot the bill for a public service, although it is clear that there is a public benefit. He says that there is not a public benefit but, with regard to the biodiversity gain, it is about a national conversation and national involvement and intervention to meet climate crisis targets.

Secondly, with respect, he should not cast aspersions that illegal behaviours have been related to rural stakeholders and imply that he believes that not all operators operate legally. I would like him to either apologise or make sure that those comments are extended.

I thank Jim Fairlie for that intervention. Of course, the whole objective is to get those people who are operating illegally—that is the most important part of the bill—but there is no connection between raptor persecution and grouse moors.

There are other reasons for persecution—intraguild predation, the habitat, et cetera. We can agree to disagree on that, but what we are talking about here is cost recovery. To my mind, it is almost as if those who are operating legally are being persecuted, if I can use that word.

I am also uncomfortable about the idea that there has been no demonstration of the benefit to the public purse. The biodiversity gain is in sight—you only need to go on to a grouse moor to see the species that have recovered. Indeed, I was on a farm that was connected to a grouse moor, and there were 15 bird species just because of the management.

I have made my point, so I will finish up. That is all that I have to say.