Hansard

I will come to amendment 12 after I have spoken to the other amendments in the group. That would make more logical sense. This debate is about the committee’s concerns regarding clarity in the definition of a “wild animal”. I understand the committee’s recommendations about including a list. I understand the motivation and why people would think that a good thing. However, that kind of definition in legislation often becomes incredibly problematic, which is why it does not happen in general terms. I thank the committee for its consideration of the issue, and I will deal with the amendments, starting with those in the name of John Scott. His idea is to refer to existing lists of wild animals under the habitats directive and the Dangerous Wild Animals Act 1976 to help define the kinds of animals that are and are not considered wild. He is taking a similar approach to mine in proposing, in addition, to provide a power for the Scottish ministers to specify whether a species or a kind of animal is wild or not. However, I rather fear that the approach that has been taken in John Scott’s three amendments would render the bill ineffective without extensive secondary legislation. In its current form, the approach would automatically exclude any wild animals that are not considered dangerous wild animals or animals of particular conservation importance in Europe. In particular, it would exclude foxes and raccoons, which are currently used in one particular circus. It would also exclude other animals that might conceivably be used, including woolly lemurs, tamarins, guanacos, vicuñas, night monkeys, squirrel monkeys and all the other different kinds of monkeys that are and can become popular in circuses. Secondary legislation listing a wide range of animals would indeed be required immediately the act came into effect, but it would be difficult to provide and keep up to date. It would have to be exhaustive, and it is difficult to see how it could be an exhaustive list. It would have to include not just wild animals but the hybrids that a travelling circus might possibly use. It would create constant problems, as we would constantly have to monitor the animals used. Mark Ruskell’s amendments lie on the other side of the coin. Mark Ruskell is trying to list the domesticated animals that can be used, as opposed to the wild animals that cannot be used. Listing domestic animals may seem simpler than listing wild animals, but that would still require debate on and updates to legislation, should the status of certain animals in the British islands change—not least as the offence would be triggered with the use of any animal that was not listed. Many of the animals listed in amendment 20 are clearly commonly domesticated animals, and there is little need to list them, as such animals will already be exempt from the ban under section 2(2) of the bill. However, some of the animals included in the list in amendment 20 are not commonly domesticated. They are what we would consider to be wild: for example, Pallas’s cats, sand cats and the Scottish wildcat. Furthermore, many commonly domestic animals are missing from the list in amendment 20, including llamas and alpacas, which are examples of changing culture around animals. I guess that, 20 or 30 years ago, we would not have regarded llamas and alpacas as commonly domesticated in the UK, but most of us recognise that they are now. Also missing are various small animals commonly kept as pets. If the list is not absolutely accurate, some travelling circus operators could conceivably be prosecuted for using a kind of animal that is indeed commonly domesticated in the British islands, while others might legally use what are in reality wild animals. In a sense, it comes back to the issue of lists. I stand by my previous advice that a list of animals by species, subspecies and hybrids would not be practical because it would be difficult to ensure that it was exhaustive and anything not on the list would remain legal to use, which would provide a way for travelling circuses to keep using wild animals by constantly adjusting the kind of animal that they use. There would also be a requirement for frequent updates to the list, with each update no doubt causing significant debate among stakeholders. Listing domestic animals that are not to be covered by the ban would simply give rise to the same problems, because it would be difficult to ensure that the list was exhaustive, any wild animals inadvertently captured by the list would remain legal to use and circus operators who used clearly commonly domesticated animals that were not caught by the list would then be open to prosecution. To summarise my views on amendments 1 to 3, I see no advantage in restricting the tried and tested meaning of “wild animal” in the bill by referring to lists in other legislation, such as the habitats directive or the Dangerous Wild Animals Act 1976. In regard to amendments 14 to 18, and 20, I consider that the risks to law-abiding travelling circus operators would be too great if a list of domestic animals was adopted. Ensuring that any such list was comprehensive and up to date would be critical and difficult, with potentially serious consequences if that was not achieved. Those examples illustrate clearly the dangers of trying to construct a list of animals that are or are not wild for the purposes of the bill and underline why the definitions in the bill provide what we consider to be the correct approach. I move on to amendment 12. I understand the committee’s concerns regarding the need for clarity on this matter and I fully accept that there might be occasional cases of genuine doubt as to whether a type of animal is of a kind that is commonly domesticated in the British islands or is wild, since where a type of animal sits in those two categories is not fixed but can change over time, as I have indicated with the obvious examples of alpacas and llamas. I have therefore lodged amendment 12, which would provide the Scottish ministers with a power to make regulations to include or exclude specific kinds of animals as wild animals for the purpose of the legislation. As I stated at the stage 1 debate, the regulations would be subject to the affirmative procedure, which is consistent with the procedure that is used for other animal welfare secondary legislation and would allow full consideration of any future regulation by the committee. We would use the power in cases of genuine doubt. That approach would have the advantage of retaining the tried and tested definition of “wild animal” that is currently used in the Animal Health and Welfare (Scotland) Act 2006, the equivalent Zoo Licensing Act 1981 in England and the more recent Welfare of Wild Animals in Travelling Circuses (England) Regulations 2012, thereby keeping consistency. However, the approach would go further by allowing the Scottish ministers to exclude or include specific kinds of animals as wild animals in a targeted manner to remove any doubt in particular cases where there was uncertainty. I think that amendment 12 addresses the committee’s concerns about definitions, without bringing in the difficulties that would arise with the alternative approaches that have been proposed. I therefore respectfully ask John Scott and Mark Ruskell not to move or press their amendments and ask the committee to agree to amendment 12.