Report of the Review of the Protection of Wild Mammals (Scotland) Act 2002

1. Introduction

History
1.1 The Protection of Wild Mammals (Scotland) Act 2002 ("the 2002 Act" or "the Act") started life as a Member's Bill introduced to the reinstated Scottish Parliament on 4 April 2000. After detailed consideration by the Parliament it was approved on 13 February 2002 and received the Royal assent on 15 March 2002. It came into effect on 1 August 2002. It did not ban hunting with dogs but placed major restrictions on doing so. The Act is reproduced at Appendix 1.

1.2 The measure was controversial, particularly because of the changes it would impose on the practice of hunting foxes. The Bill ^[1] in its original form would have outlawed not only traditional fox-hunting as sport but also the use of a pack of dogs for pest control of wild mammals including foxes and hares. The parliamentary debates ^{[2], [3]} were wide-ranging, lively and well-informed, addressing all relevant issues from the ethics of hunting wild mammals for sport and the scientific case for doing so as a means of controlling the growth in the numbers of a species, to the anticipated practical consequences for farmers, businesses, communities and people in general. Members of the Parliament actively involved in the debate represented constituents with opposing views and had themselves in some instances strong views on some of the issues.

1.3 At Stage 1 the Rural Affairs (subsequently Rural Development) Committee heard evidence from a number of groups and considered written submissions and expert material. The debate was also informed by what is probably the most authoritative inquiry to date into the subject, the Report of the Committee of Inquiry into Hunting with Dogs in England and Wales, published on 9 June 2000, very shortly after the introduction of the Bill to Parliament. The Report is generally referred to as "the Burns Report" ^[4] , after the Chairman, Lord Burns. At both Stage 2 and Stage 3 of the parliamentary process, the Bill was heavily amended. Many of the amendments were contentious.

Remit
1.4 In December 2015 I agreed to undertake a Review of the operation of the Act to ascertain whether it is providing a sufficient level of protection for wild mammals, while at the same time allowing effective and humane control of animals, such as foxes, where necessary, and report. The remit ^[5] included an invitation to make recommendations where appropriate.

1.5 Excluded from the remit were the following three matters:

• Whether predator control is necessary to protect livestock or wildlife;
• The operation of other wildlife legislation unless it has a direct bearing on the operation of the 2002 Act;
• Other types of predator or pest control.

The remit also provided that the Review should not take a view on any particular incident or allegation. As a result this Review has addressed a much narrower range of issues than were considered during the passage of the Bill.

Methodology
1.6 A notice was posted on the Scottish Government website inviting the public in general to submit evidence, in the form of written submissions ^[6] , to the Review between 1 February and 31 March 2016. A total of 291 were received.

1.7 Secretarial support was provided by the Natural Resources Division of the Scottish Government. I was also assisted by Mr Norman Dowie, formerly Deputy Principal Clerk of Justiciary, who carried out a number of interviews and enquiries on my behalf. For the rest, the Review has been conducted by: studying the detail of the legislation and its passage through Parliament; considering the terms and impact of similar legislation relating to England and Wales ^[7] ; digesting a large volume of readily accessible background material including the Burns Report and the report from the Macaulay Land Use Research Institute ( MLURI) on the Economic Impacts of a Ban on Hunting with Dogs in Scotland ^[8] commissioned by the Scottish Executive and published in June 2000; making various enquiries to obtain relevant factual information; considering the written submissions and other documentary material referred to therein; meeting with a number of the groups who made submissions to obtain their responses to material submitted by others holding opposing views on the principles and details of the legislation and to clarify and amplify aspects of their written submissions; speaking with individuals who made submissions or are involved in organisations which did; and meeting with specialist wildlife prosecutors of the Crown Office Procurator Fiscal Service and the Crown Prosecution Service in London and with Police Scotland.

1.8 It was particularly helpful to view some of the activities engaged in by hunts recorded on film and forming part of submissions, particularly those recorded by investigators of the League Against Cruel Sports, and to attend a demonstration of some of the practices of a mounted hunt arranged by the Scottish Countryside Alliance.

1.9 Whatever the outcome of this Review, wild mammals will continue to be killed for pest control and other reasons. Sentiment has no part to play in evaluating the material presented to and gathered in the course of the Review. Conclusions have to be based on evidence. The Review has been greatly assisted by many of the written submissions. However, it has at times been difficult to reach firm conclusions on matters of fact relevant to the Review. Many of the submissions address issues debated in the course of the passage of the Bill which are beyond the scope of this Review. Some have used the opportunity of making a submission simply to assert an opinion or point of view. A number of the substantial submissions from people with a wealth of relevant knowledge and experience are expressed in terms which appear coloured by their support for the position on one side or the other of what is at times a quite polarised debate. On occasion assertions are made which may or may not be accurate but plainly go beyond the personal knowledge of the persons making the submissions. As a result, it has proved difficult to make firm factual findings. Some conclusions are, therefore, statements of the impression formed from reading, listening to and viewing the evidence, and then weighing and assessing it.

Wild Mammals to which the Act Applies
1.10 A number of wild mammals are protected in Scotland by a range of legislative measures, in particular badgers, bats, deer, dolphins and whales and porpoises, hares (including rabbits), otters, pine martens, seals, squirrels, shrews and voles, and wildcats. In theory the Act applies to all of those but rabbits; in practice it has no application to most, e.g. because they live in the sea, or because prosecution would proceed under other legislation applying to the mammal, such as a badgers ^[9] or deer ^[10] , or simply because the wild mammal is unlikely to be the subject of hunting using a dog. The Act does not apply to rabbits or rodents, but does apply to a wild mammal that has been released or has escaped from captivity. Although the above list of protected mammals does not mention foxes or mink, both are specifically mentioned in the Act. The aim of the Bill as introduced was to bring an end to what was perceived to be the cruelty associated with the use of dogs in hunting wild mammals, particularly the chase and the kill, and set out to achieve that by targeting mounted fox-hunting, hare coursing and fox-baiting with terriers ^[11] . The focus of the Act as passed is the protection of foxes and hares. Little has been said in submissions to the Review on the subject of any mammal other than the fox which was referred to in every submission. The Review has as a result been concentrated largely on the use of dogs in hunting foxes.