Improving the protection of wild mammals: consultation analysis

6. Language of the Act – areas of overlap and inconsistency

6.1 This chapter presents respondents' views on Questions 1.7 and 1.8, which related to paragraphs 5.27 – 5.33 of the review report. These paragraphs discussed areas of overlap and inconsistency in different sections of the 2002 Act.

Using a dog under control to flush (an animal) from cover above ground (Q1.7)

6.2 The review report, paragraphs 5.27 – 5.29, discussed an apparent overlap in the provisions between sections 2(1) and 2(3) of the 2002 Act. Section 2(1) states that:

A person… does not commit an offence under section 1(1) by using a dog under control to stalk a wild mammal, or flush it from cover (including an enclosed space within rocks, or other secure cover) above ground ….

6.3 Section 2(3) includes a similar provision:

A person does not commit an offence under section 1(1) by using a dog under control to flush a fox or mink from below ground or by using a dog under control to flush a fox from an enclosed space within rocks or other secure cover above ground …

6.4 Although section 2(3) specifically mentions fox or mink, Lord Bonomy concluded that section 2(1) also applies where the quarry is a fox or mink. He noted that those who have to interpret the Act in their daily work regard section 2(3) as applying to the use of terriers to flush a fox or mink that is below ground (or 'goes to ground'). However, in that case, there was a question about why section 2(3) also refers to flushing a fox 'from an enclosed space within rocks or other secure cover above ground'. Lord Bonomy surmised that section 2(3) may have been intended to be restricted to flushing from below ground, and he suggested that consideration should be given to framing section 2(3) more narrowly by removing the reference to 'using a dog under control to flush a fox from an enclosed space within rocks or other secure cover above ground'.

6.5 The consultation questionnaire asked for views on this point.

Question 1.7: Do you think section 2(3) should be framed more narrowly to remove any overlap with section 2(1) by removing reference to using a dog under control to flush a fox from an enclosed space within rocks or other secure cover above ground? [Yes / No] Please explain your answer.

6.6 There were 194 substantive responses and 2,059 campaign responses at Question 1.7. Among organisations and individuals, nearly three-fifths (59%) answered 'yes' and 41% answered no. Organisational respondents were divided in their views on this question, with half answering 'yes' and half 'no'. However, countryside management and sporting organisations were more likely to answer 'no', while animal welfare charities and campaign groups were more likely to answer 'yes'. A further 2,059 respondents who submitted their views through the campaign organised by the International Fund for Animal Welfare also answered 'yes' to this question. Thus, 96% of respondents who provided a tick-box response at Question 1.7 thought section 2(3) should be framed more narrowly to remove the overlap with section 2(1). See Table 6.1.

Table 6.1: Q1.7 – Do you think section 2(3) should be framed more narrowly to remove any overlap with section 2(1) by removing reference to using a dog under control to flush a fox from an enclosed space within rocks or other secure cover above ground?

	Yes		No		Total
Respondent type	n	%	n	%	n	%
Countryside management and sporting organisations	4	31%	9	69%	13	100%
Animal welfare charities and campaign groups	6	86%	1	14%	7	100%
Other organisational respondents	1	50%	1	50%	2	100%
Total organisations	11	50%	11	50%	22	100%
Individual respondents	103	60%	69	40%	172	100%
Total (organisations and individuals)	114	59%	80	41%	194	100%
Campaign respondents	2,059	100%	–	0%	2,059	100%
Total (all respondents)	2,173	96%	80	4%	2,253	100%

6.7 Altogether, 2,204 respondents (19 organisations, 126 individuals and 2,059 campaign respondents) made comments at Question 1.7. Note that there was substantial overlap in the comments made by those who answered 'yes' and those who answered 'no' to this question – among both organisations and individuals. Furthermore, some who answered 'no' called for a further strengthening of the legislation, without specifically addressing the question. This may suggest there was some confusion among respondents about this question and therefore, the figures shown in Table 6.1 above should be treated with caution.

Views in favour of a narrower framing of section 2(3)

6.8 Respondents advocating a narrower framing of section 2(3) commented that they could not see a difference between the scenario described in section 2(3) and the one covered by section 2(1). This group often simply endorsed Lord Bonomy's suggestion that 'the language in subsection 2(3) could be tightened to make clear that this exception is ONLY applicable to situations when the fox or mink is below ground'. One respondent suggested that sections 2(1) and 2(3) should be amalgamated; another suggested that section 2(3) should be deleted.

6.9 Respondents who answered 'yes' to Question 1.7 repeatedly made three further points about the language in sections 2(1) and 2(3).

6.10 First, they called for both these subsections to continue to include explicit references to using a dog 'under control'. They argued that this would close a loophole which allows hunting to continue if dogs are deemed out of control. In relation to this point, some respondents wanted the Act to specify what constitutes a 'dog under control' and suggested that a full definition of 'flushing' should address this. One respondent also commented on the use of the singular 'a dog' in these subsections, rather than 'a dog or dogs' (allowing for the plural). Another suggested that it would be helpful if this section acknowledged that a terrier may be used, and there was a query about how it was possible to have control over a dog below ground – where the dog may not be able to hear its handler, or the handler hear the dog.

6.11 The second point commonly made by this group was that the reference to flushing 'a fox or mink from below ground' is odd, as mink hunting is not generally practised in Scotland. (Respondents also noted that the consultation question only asked about flushing 'a fox' and did not include 'mink'.)

6.12 Other views among this group, expressed less often, were that:

• The caveats listed in section 2(3)(a) to (e) are essential, in particular the requirement for a firearm or shotgun to be carried by the individuals who are responsible for shooting the wild mammal as soon as possible.
• The specific requirement for all these individuals to possess a valid firearms certificate is also important.
• There is scope for further rationalising the wording of Subsections 2(1) and 2(3). For example, the provisions in Subsection 2(3)(e) simply repeat the first line and a half of Subsection 2(1); the wording of the last three lines of Subsection 2(1) and that of Subsection 2(3)(b) should be more closely aligned.

Views opposed to a narrower framing of section 2(3)

6.13 Respondents opposing a narrower framing of section 2(3) often stated that the 'current law is fine', 'there is no need to change it', and the 'overlap is acceptable'. Moreover, this group repeatedly argued that any overlap that may exist would not hinder either the enforcement of the Act or successful prosecution. There was also some concern expressed that a change in the wording ( i.e. removing the reference in section 2(3) to flushing above ground) would complicate the issue and make legal debate more difficult.

6.14 Among those who gave a reason for their view, the main reason given was that the current wording allows for situations where the cover may be viewed as being both above and below ground – for example, where there in a hole under a number of fallen trees or in a bramble patch, or in an above ground cairn. Thus, the wording in section 2(3) removes any confusion about the legality of the flushing activity – whether it is above ground, or below.

6.15 Moreover, the point was made that sections 2(1) and 2(3) are intended to address different activities. Section 2(3) is intended to cover the activity of a terrier working below ground, while 2(1) relates to the use of other dogs to flush above ground including in connection with use of a bird of prey. Section 2(1) would also allow a person with a terrier to enter the terrier into an enclosed space above ground, where a larger dog may not be able to enter, but not below ground which he could only do under 2(3). Moreover, the exception for falconry and shooting (section 3 of the Act) only covers stalking or flushing above ground.

6.16 Thus, respondents making this point argued that the overlap is necessary because it accounts for different scenarios.

Other views regarding section 2(3) – using a dog to flush above and below ground

6.17 One further issue raised both by respondents answering 'yes' and those answering 'no' to Question 1.7 was that the wording of section 2(3)(d) suggests that the person working the terrier should be the person with the firearm. Respondents argued that this is not always practical, and it was suggested that subsubsection (d) should be removed, as the requirement for firearms has already been established in section 2(3)(b). This suggested change would read as: '…takes reasonable steps to ensure that the fox or mink is flushed as soon as reasonably possible after it is located and shot as soon as possible after it is flushed'.

Overlaps and inconsistencies in sections 2, 3 and 5 of the Act (Q1.8)

6.18 The review report, paragraphs 5.30 – 5.34, discussed the provisions within the Act which entail after a wild mammal is flushed from cover. Lord Bonomy noted that there are several differences in the way (i) the timing of the shooting and (ii) the responsibility and requirements of the person doing the flushing are expressed in sections 2(1), 2(3), 3(a) and 5(3).

6.19 Section 2(1) requires the person flushing to ' act… to ensure' that, 'once the target mammal is found or emerges from cover' it is shot or killed by a bird of prey 'once it is safe to do so'. Section 2(3)(b) requires the person flushing to ' take reasonable steps to ensure that the fox or mink is flushed as soon as reasonably possible after it is located and shot as soon as possible after it is flushed'. Section 3(a) relates to the use of a dog in connection with falconry and shooting and requires that the person using a dog to stalk a wild mammal or flush it from cover above ground for the purpose of providing quarry for sport must ' act… to ensure' that, once a wild mammal is found or emerges from cover, it is shot, or killed by a bird of prey ' as soon as possible'. In section 5(3), the requirement is to ' take… reasonable steps to ensure that' an orphaned fox once located is despatched by a single dog.

6.20 Section 2(1) does not mention that a person involved in flushing, or shooting, is required to hold a firearms or shotgun certificate, whereas in both section 2(3) and section 3, reference is made to the person using the dog holding a firearms or shotgun certificate.

6.21 Lord Bonomy suggested options for bringing greater consistency to these sections, and the consultation asked for views about whether these different areas of overlap and inconsistency should be addressed in the manner suggested.

Question 1.8: Do you think that the various areas of overlap and inconsistency between sections 2(1), 2(3), 3(a) and 5 of the Act should be addressed in the manner suggested?

6.22 There were 185 substantive responses and 2,059 campaign responses to Question 1.8. Among organisations and individuals, just over a third (34%) answered 'yes' and two-thirds (66%) answered 'no'. Among organisational respondents, most countryside management and sporting organisations answered 'no' (11 out of 13), while most animal welfare charities and campaign groups answered 'yes' (6 out of 7). A further 2,059 respondents who submitted views through the campaign organised by the International Fund for Animal Welfare answered 'yes' to Question 1.8. Thus, among the respondents who provided a tick-box response at Question 1.8, 95% thought the other areas of overlap and inconsistency in the specified sections should be addressed. See Table 6.2.

Table 6.2: Q1.8 – Do you think that the various areas of overlap and inconsistency between sections 2(1), 2(3), 3(a) and 5 of the Act should be addressed in the manner suggested?

	Yes		No		Total
Respondent type	n	%	n	%	n	%
Countryside management and sporting organisations	2	15%	11	85%	13	100%
Animal welfare charities and campaign groups	6	86%	1	14%	7	100%
Other organisational respondents	1	50%	1	50%	2	100%
Total organisations	9	41%	13	59%	22	100%
Individual respondents	53	33%	110	67%	163	100%
Total (organisations and individuals)	62	34%	123	66%	185	100%
Campaign respondents	2,059	100%	–	0%	2,059	100%
Total (all respondents)	2,121	95%	123	5%	2,244	100%

6.23 Altogether, 2,204 respondents (19 organisations, 126 individuals and 2,059 campaign respondents) provided further comments.

Views in favour of addressing overlaps and inconsistencies

6.24 Respondents answering 'yes' to Question 1.8 generally thought that greater consistency between sections 2(1), 2(3), 3(a) and 5(3) would help bring about a better understanding of the law by practitioners and law enforcement officers. This group supported Lord Bonomy's recommendations, so long as they do not create additional inconsistencies that would prevent enforcement.

6.25 Various respondents answering 'yes' made three more specific points regarding the requirement to carry a licensed firearm:

• It should be clear that the requirement to carry a licensed firearm and to have the landowner's permission to carry out the activity apply to all the excepted activities listed in section 2.
• Regarding the reference to 'firearms certificates', provisions in the 2002 Act should be consistent to other firearm and shotgun regulations. It was suggested that section 2(3)(d) and 3(b) are incorrectly worded.
• Respondents in this group also repeatedly called for the expression in section 2(1) – 'once it is safe to do so' – to be changed to 'as soon as possible' as this phrase is less subjective and would help to reduce the risk of a chase taking place. In addition, any court would see this requirement as being subject to it being safe to shoot. At the same time, one respondent suggested that, if the wording 'once it is safe to do so' is retained, then the alternative wording proposed by Lord Bonomy in paragraph 5.33 of the review report would be supported. ^[10]

Views that is it unnecessary to address overlaps and inconsistencies

6.26 Those answering 'no' to Question 1.8 generally did not believe that the overlaps and inconsistencies identified by Lord Bonomy were of sufficient importance to require amendment of the legislation. The point was made again, repeatedly by this group, that none of these issues have been shown to prevent enforcement or hinder the courts in applying the law where there is sufficient evidence of an offence. Concern was expressed about the potential for changes to the Act to curtail or make impractical pest control using dogs. These respondents called for any amendment or redrafting to the 2002 Act to be made only with full stakeholder engagement and agreement.

6.27 The following additional points were made less often (usually by just one or two respondents):

• Section 2(3) is the section of the law that fundamentally describes lawful fox control with a dog in Scotland. It should not be amended.
• Apparent overlap in the sections addressed by Question 1.8 exist because these sections cover separate activities. The overlap ensures that there is clarity about how these activities should be conducted lawfully by practitioners.
• Lord Bonomy suggests that the phrase 'once it is safe to do so' in section 2(1) leaves scope for a chase to begin. However, this section stipulates that the person hunting 'acts to ensure' that the mammal is shot. Having hounds in pursuit of that mammal would make that impossible. As such the law requires the person to act to remove any impediment to the shooting of the mammal found or flushed as soon as possible once it is safe to do so. For a chase to begin or continue out of cover there would be a clear failure to act to ensure that the animal was shot.