Improving the protection of wild mammals: consultation analysis

8. Terriers (Q2)

8.1 Section 2 of the consultation questionnaire concerned the use of terriers to flush foxes from below ground or from an enclosed space within rocks or other secure cover above ground. This chapter presents an analysis of respondents' views about Question 2 in this section, which relates to paragraphs 6.20 to 6.30 of the review report.

8.2 Section 2(3) of the 2002 Act states that:

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….

8.3 The Act then goes on to list five conditions which must be met in order for this activity not to be classed as an offence.

8.4 Lord Bonomy's report (paragraph 6.20 and 6.29) suggested that, in line with the Code of Conduct of the National Working Terrier Federation ( NWTF), it should be specified clearly in the Act that, wherever possible and practical, only one terrier should be used below ground at a time to locate a fox. The consultation asked respondents if they agreed with this suggestion.

Question 2: 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? [Yes / No] Please explain your answer.

8.5 There were 196 substantive responses to this question and 2,059 campaign responses. Among organisations and individuals, just over one-third (36%) answered 'yes' and nearly two-thirds (64%) answered 'no'. Among organisational respondents, animal welfare charities and campaign groups unanimously agreed. By contrast, countryside management and sporting organisations mainly disagreed (11 out of 13 answered 'no'). The 2,059 respondents whose views were submitted through the campaign organised by the International Fund for Animal Welfare answered 'yes'. Thus, 94% of those who replied to this tick-box question agreed with Lord Bonomy's suggestion. See Table 8.1.

Table 8.1: Q2 – Do you agree with Lord Bonomy's suggestion that the legislation should impose a restriction in line with the Code of Conduct of the NWTF that, wherever possible and practical, only one terrier should be entered to ground at a time?

8.6 Altogether, 2,245 respondents (21 organisations, 150 individuals and 2,074 campaign respondents) provided further comment at (or relevant to) to Question 2. Some individual respondents answering 'no' to this question were entirely opposed to terriers being entered underground and wanted the law to be changed to make this practice illegal. Thus, caution should be used when interpreting the figures for individuals in Table 8.1.

Views in favour of restricting, in law, the number of terriers entered to ground

8.7 Some respondents answering 'yes' to Question 2 commented that they were opposed to entering terriers to ground in principle and would like to see the practice banned; however, if it continues to be permitted, then the current legislation should be strengthened to protect the welfare of both the fox and the terrier. Other respondents accepted that the use of terriers underground is a necessary aspect of fox control but, again, for welfare reasons, they saw the value of having legislation include the specific provision in the Code of Conduct that: 'wherever possible and practical, only one terrier should be entered to ground at a time'.

8.8 This group of respondents repeatedly emphasised that they wanted this restriction to be 'on the face of the Act and not part of a code of conduct, binding or otherwise'.

8.9 Respondents who answered 'yes' to Question 2 thought the proposed restriction to one terrier would have several benefits:

• It would give a fox more opportunity to find an escape route from the ground and then be humanely dispatched rather than risk being cornered and / or killed by more than one terrier.
• It would give the terrier greater freedom of movement below ground to retreat – thus allowing the fox to bolt more easily and / or to prevent injury to the dog from an oncoming fox.
• It will help ensure terriers are only used to flush from cover, not to fight with the fox, by limiting the amount of time they spend underground.
• It would bring Scottish legislation in line with that in England and Wales on this issue.

8.10 However, this group of respondents thought that the phrase, 'wherever possible and practical' would create a loophole and should not be included in the legislation; rather the restriction to one terrier should be absolute.

8.11 They also wanted it to be clarified that (i) several terriers cannot be entered in succession which may be implied by the phrase 'one at a time' and (ii) it should not be permitted to use dogs for activity which might constitute an offence under other legislation ( e.g. such as the digging of badger setts).

8.12 Some respondents explicitly stated that they supported the recommendation to incorporate the NWTF Code of Conduct into legislation. However, others (including two countryside management and sporting organisations who answered 'yes' to Question 2) referred to, and in some cases preferred, the British Association for Shooting and Conservation ( BASC) Code of Practice for the Use of a Dog Below Ground in England and Wales, which has the force of law under the Hunting Act 2004. ^[11] Some respondents specifically noted that the BASC Code requires only terriers that are 'soft' ( i.e. habitually stand off and bark at the wild mammal), rather than 'hard' (those that habitually fight) to be used for underground work.

8.13 Some respondents suggested that the legislation should also stipulate that, once a terrier is entered to ground, all hounds should be removed from the area so that they do not prevent the fox from being shot immediately when it bolts from cover, and to reduce the risk of a chase occurring.

8.14 Finally, some respondents answering 'yes' to Question 2 also commented on the suggestion by Lord Bonomy that a purse net be attached to any hole from which a fox might bolt – to restrain the fox and enable it to be immediately shot (paragraph 6.30 of the review report). Some supported this suggestion; however, one respondent disagreed for three reasons: (i) it would be difficult to find, and net, every possible hole that a fox might bolt from; (ii) it could result in the terrier being inadvertently shot as it followed a bolting fox from a hole; and (iii) nets may deter a fox from bolting, thus increasing the possibility of a fight with the terrier underground.

Views opposed to restricting, in law, the number of terriers entered to ground

8.15 Most respondents who answered 'no' to Question 2 were not in favour of legislation imposing a restriction on the number of terriers that may be entered to ground at one time to flush a fox.

8.16 Respondents in this group stated that they supported and endorsed the principle of entering only one terrier to ground at a time whenever practical or possible, but they also argued that there are a wide range of circumstances where it may be necessary (for practical and welfare reasons) to enter more than one terrier to ground. Examples included where a den is large and has multiple sections, in a rabbit warren, in large cairns, in large areas of windblown forestry, etc. In such situations, a fox may be able to elude one terrier, while two would put greater pressure on the fox to bolt. Thus, the use of two terriers will reduce the amount of time the fox and dog(s) are underground and will enable the fox to be dispatched more quickly and humanely. In addition, a second terrier may be needed to help locate the first terrier if it becomes trapped underground and its location transmitter malfunctions. Some respondents also noted that it is common, when training a younger terrier, to let it follow an older more experienced terrier so that the younger dog may learn from the older one. This group thought that the choice about the number of terriers to use in any given situation should be made by the terrier man who has the necessary expertise and who adheres to the NWTF Code of Conduct.

8.17 Respondents who answered 'no' to Question 2 also expressed concern about the phrase 'wherever possible and practical' being included in legislation. These respondents thought this phrase was open to interpretation, and that it would be extremely difficult to legislate for what constitutes the 'possible and practical'; the implications would mean having to prove in court that an additional terrier was (or was not) necessary at the time.

8.18 These respondents instead advocated leaving this issue to be covered by the new code of practice currently being drafted in Scotland.

Alternative views opposing the use of one terrier underground

8.19 It should be noted that around one-tenth of respondents who answered 'no' to Question 2 said that they were entirely opposed to terriers being entered underground, or the practise of hunting with dogs in any way. Similarly, 15 respondents who submitted their views through the campaign organised by Animal Concern called for the law to be changed to make it 'illegal to put terriers or other dogs into any hole in the ground to force any animal to the surface'.