Chamber and committees

Yes.

I have never been on a committee with so many Highlands and Islands members. I therefore wonder whether you could comment on how the regions will be represented. Will the approach ensure that the Highlands and our more remote rural areas are represented?

You are saying that none of that evidence is based directly on fish numbers or anything like that. It is evidence that you would not expect to change, so the data that you used for the 2022 order and for the new one is not likely to change any time soon, because it is not based on fish numbers.

The Clyde Fishermen’s Association secretary, Elaine Whyte, said that the ban will have a devastating impact on fishermen. She said:

“Financially, the closure has had a massive impact. We have had mobile boats that have lost areas but, more significantly, we have had creel boats that have completely lost their areas and which have no other option to go anywhere.”—[Official Report, Rural Affairs, Islands and Natural Environment Committee, 2 March 2022; c 3.]

Those people do not have other options. Essentially, you are asking them to stop their business for that period. Could more consideration be given to the impact on them?

Lastly, everyone has agreed, and your officials have said, that this is about working with the sector. Do you feel that the sector has confidence in its discussions with you that it is not just being talked to but is being worked with for the future?

I will speak to Stephen Kerr’s amendments 150, 152 and 153, which are critical safeguards in the face of an increasingly overburdened regulator. As I highlighted earlier, NatureScot already processes some 5,000 licensing applications annually, meaning that there is a tangible risk that muirburn licences will face undue delays in processing, potentially to the detriment of landscape resilience to wildfire risk or of habitat favourability for game and wildlife. We feel that it is vital that a provision be built into the licensing scheme that will safeguard against delays caused by an increasingly overburdened regulator.

Amendment 154, in the name of Ariane Burgess, stands to have a hugely detrimental impact on the ability of land managers to make muirburn. Successive scientific studies are clear about the role of muirburn in providing favourable habitat for the assemblage of moorland game and wildlife. In addition, it has been well documented that muirburn has an important role in conserving, restoring, enhancing and managing the natural environment, as well as in managing habitat for livestock. Such an amendment would have catastrophic implications for a range of muirburn users.

I am delighted to speak on these amendments and to present some of Stephen Kerr’s reasons and concerns regarding amendments in this group.

Amendment 125 would replace the appropriateness test with a fit-and-proper-person test in order to address widely held concerns about the lack of certainty arising from the appropriateness test by ensuring that licence applications are granted unless the applicant is an individual who is not considered fit to hold a licence as a matter of fact in law.

The appropriateness test is likely to cause legal and operational uncertainty that could be damaging to rural Scotland. The term “appropriate” is not defined in the bill and the only guidance that is given is that NatureScot

“must have regard ... to the applicant’s compliance with a code of practice”

However, that is not the only factor that NatureScot can take into account. The code of practice, which is yet to be developed, will include best-practice guidance on matters that have nothing to do with the policy objective of tackling raptor persecution. It is also concerning that NatureScot’s assessment of appropriateness is not confined to an identifiable and relevant individual—the applicant or land manager.

Stephen Kerr is also concerned that the bill creates a two-tier approach to decision making, in which licence applications could be refused on lesser grounds than those on which licences can be suspended or revoked. That is illogical. The effects of a licence refusal, suspension or revocation are the same: the land cannot operate as a grouse moor, which means that the rights holder will suffer substantial losses of capital and income; quality rural jobs and the accommodation that is tied to those will become redundant and rural economies will suffer, as will the privately funded land management that is of benefit to red and amber-listed species and mitigates the risk of wildfires.

Put simply, the approach could create a system in which rights are restricted by the back door in cases where NatureScot does not have sufficient evidence to justify a licence suspension or revocation and so simply waits until the licence expires and refuses to grant a new one on the basis of its discretionary interpretation of appropriateness.

Amendments 128 and 129 are critical safeguards in the face of an increasingly overburdened regulator. NatureScot processes some 5,000 licensing applications each year, which means that there is a tangible risk that section 16AA licences would face undue delays in processing. Given the significant economic value that is associated with grouse shooting, and the immediate and significant consequences of not having a licence on 12 August, we feel that it is vital that a safeguard be built into the licensing scheme to guard against delays being caused by an increasingly overburdened regulator.

I will briefly turn to other amendments in the group. On amendment 130, in the name of Colin Smyth, the committee heard from the minister’s officials that the primary purpose of the code of practice in this bill is to enable the licensing authority to have regard to how much or otherwise an applicant has complied with it. The committee also heard that the code of practice will, like most codes of practice, have a range of recommendations. There will be things that people must absolutely comply with—that is, legal requirements—things that people really should comply with, and things that are good practice. There will also be things that people must do all the time and other things that people will not have to do. The requirement to “have regard to” the code of practice, as reflected in the bill as laid, is a common way of incorporating a code of practice into primary legislation. It would require the licence holder to be aware of the code’s provisions, to keep that awareness up to date, taking into account any revisions that are made to it, and to consider how the code may be relevant to particular actions and activities on the land.

Amendment 130 would have the effect of radically changing how the licensing scheme would operate by providing that licences must slavishly comply with every detail of still-to-be-developed guidance, much of which will likely have nothing to do with raptor persecution. Otherwise, a licence may be refused, suspended or revoked. That is a wholly disproportionate approach to regulation. It would remove the licensing scheme from any rational connection with its declared purpose in relation to raptor persecution and leave the bill wide open to legal challenge.

On amendment 131, which is also in the name of Colin Smyth, it is impossible to understand the reasons behind the collection of the data to which it refers and the duty that it would place on the licence. The purpose of section 16AA licensing is to tackle the persecution of raptors; it is not concerned with the number of grouse shot or the legal management of other wild birds or animals under general licences. Reporting lawful activity has no deterrent effect at all and is therefore not connected to the aim. The proposed reporting requirements therefore have no rational connection to the policy aim and would disproportionately burden the licences for correspondingly little public gain. Information about the number of grouse shot is commercially sensitive and, if it was made publicly available, it could be detrimental to rights holders. Moreover, unaggregated species data is not useful to the public, the regulator or policy makers.

Predator control is undertaken in a number of other land management contexts, such as farming. Singling out one sector for additional recording requirements would be disproportionate and inconsistent with the principle of equality of treatment, which underpins natural justice and which the Scottish Government is bound by.

I move amendment 125.

I am delighted to have the opportunity to speak to amendment 143, in the name of Colin Smyth, and to raise the concerns of my colleague Stephen Kerr, who unfortunately cannot be here today.

Amendment 143 represents a deliberate and targeted attempt to compromise rural businesses that rely on grouse shooting as part of their income stream. Given the body of evidence that demonstrates the benefits of muirburn that is carried out by grouse moor managers for diverse forms of moorland wildlife, it seems counterintuitive to remove the primary motivation for undertaking such activity in the first place. Moreover, moorland game includes species such as black grouse, which is a red-list species of conservation concern whose populations are now largely confined to moorland that is managed for grouse shooting, partly because of the muirburn that is undertaken to benefit moorland game on such landholdings.

That discussion highlighted some of the intentions behind the bill, but it is difficult to have much confidence in how they will be practically implemented. I will press the amendment on Stephen Kerr’s behalf. Perhaps there could be further engagement between the minister and Mr Kerr on those areas.

I draw members’ attention to my registered interest as a partner in a farming business and, through that, as a member of a number of organisations including NFU Scotland and Scottish Land & Estates.

I am delighted to speak in support of my colleague Stephen Kerr, who cannot come along to the committee’s meeting today. He has asked me to cover a number of areas and to move his amendments when we come to them. On his behalf, I will speak briefly to two amendments in the group.

We are against Colin Smyth’s amendments 120 and 121. We do not consider that amendment 120 would add anything instructive or novel to what will be expected of such training courses. The amendment is unnecessarily prescriptive. On amendment 121, similarly, we do not see the rationale for being so prescriptive. Course content, including animal welfare considerations that practitioners should be cognisant of, ought to be a matter for NatureScot and accredited training bodies. It would be highly unusual for ministers to prescribe syllabus content in the way that is proposed.