Chamber
Plenary, 13 Feb 2002
13 Feb 2002 · S1 · Plenary
Item of business
Protection of Wild Mammals (Scotland) Bill: Stage 3
There is some misapprehension that amendments that are lodged to find out the intention of those who are promoting the bill are deliberate wrecking amendments. That is not the case. My intention is to make clear what lies behind the provisions and to ensure that the Parliament proceeds as a legislature and is not overcome by sentiment.
Yesterday, when I asked the chamber clerks to provide me with a summary of the principles on which the bill was based, they advised that they were unable to do so, because the principles are not set down definitively in one place. The will of Parliament is the will that it expressed at the end of the stage 1 debate; that will is a coalescing of the views and opinions that were put forward by MSPs during the debate. There has already been, and will continue to be, much controversy about the will of Parliament at stage 1, during the stage 2 committee debates and even today. It is clear that, on 19 September, Parliament made no specific reference to the number or nature of criminal offences that it anticipated would be introduced as a result of the passage of the bill. That is why it is particularly important that the Parliament expresses positively today its will either that new specific offences should be created or, as I would hope, that the existing laws and principles of Scots law are adequate to encompass what is envisaged in sections 1(3) and 1(4) of the bill as amended at stage 2.
I am not satisfied that the case has been made for the introduction of two new criminal offences. As the Justice and Home Affairs Committee's stage 1 report pointed out:
"the creation of a new criminal offence is a serious matter, and generally one of resort where legislation initiated by the state is concerned".
While the committee recognised that there was no reason in principle why a member's bill should not create a new offence, it concurred with the view that Parliament, when considering legislation that makes criminal activities that have been lawful for a long time, should be scrupulous in ensuring that the scope and extent of the criminal conduct is as tightly defined as possible. Indeed, the committee was unable to reach a unanimous view on whether the sections as then drafted made the offences sufficiently clear.
When Parliament met on 19 September, clear undertakings were made that new proposals would be introduced relating to the offences that are set out in the bill. However, when Lord Watson lodged his amendments five minutes before the deadline for stage 2 consideration in committee, it was clear that—contrary to my expectations and those of others—there was no intent to introduce a specific crime of participating in a mounted fox hunt. Indeed, somewhat contrary to what could be said to be the will of Parliament as expressed on 19 September, the bill contains no specific prohibition of mounted activities and makes no specific reference to other identified activities such as hare coursing and fox baiting.
When Mike Rumbles sought to raise the issue of sport, which Tricia Marwick had referred to in her closing address, the Scottish Executive, for once neutral, interjected and that amendment was voted down. Accordingly, from the stage 2 process, we emerged with three offences.
The principal offence is set out in section 1(1) and the other offences are set out in sections 1(3) and 1(4). As I have said, I am not satisfied that the case has been made for those exemptions in the context of existing criminal law of Scotland, which makes it a crime for someone to conspire to be, or to be art and part, or to be acting in concert relative to criminal activity. Anybody who actively supported criminal activity, with intent, would already be capable of being charged with an offence under Scots law. Those who support the provisions of section 1 have to justify why they believe that two new crimes should be created.
A contextual point will arise throughout this afternoon's deliberations. If Parliament is to pass the bill, it must determine where the offences lie on the scale of criminality. The provisions indicate that they are rated higher than many drugs offences, for example. I believe that those who support the bill must set out the case for the inclusion of sections 1(3) and 1(4).
Since Monday, I have become increasingly concerned about section 1(4) because Mrs Karen Gillon has lodged an amendment that seeks to compensate only those people who would have been carrying out an activity had that activity not been made criminal by section 1 of the bill. I cannot believe that Mrs Gillon would promote an amendment that seeks to compensate, in effect, nobody. That is what would happen if my understanding of responsibility, as it relates to direct control over dogs, is correct. I want members to understand what is meant by responsibility in the bill, because it has an important bearing on the compensation amendment that has been lodged.
I have no difficulty with Mr Finnie's amendments 34 and 35. If the offences that are referred to in sections 1(3) and 1(4) are to be created, that would be better done on the basis of amendments 34 and 35. My only query is why such textual amendments were not lodged at stage 2 when the Executive was represented at all 18 hours of the Rural Development Committee's deliberations on the bill.
I move amendment 2.
Yesterday, when I asked the chamber clerks to provide me with a summary of the principles on which the bill was based, they advised that they were unable to do so, because the principles are not set down definitively in one place. The will of Parliament is the will that it expressed at the end of the stage 1 debate; that will is a coalescing of the views and opinions that were put forward by MSPs during the debate. There has already been, and will continue to be, much controversy about the will of Parliament at stage 1, during the stage 2 committee debates and even today. It is clear that, on 19 September, Parliament made no specific reference to the number or nature of criminal offences that it anticipated would be introduced as a result of the passage of the bill. That is why it is particularly important that the Parliament expresses positively today its will either that new specific offences should be created or, as I would hope, that the existing laws and principles of Scots law are adequate to encompass what is envisaged in sections 1(3) and 1(4) of the bill as amended at stage 2.
I am not satisfied that the case has been made for the introduction of two new criminal offences. As the Justice and Home Affairs Committee's stage 1 report pointed out:
"the creation of a new criminal offence is a serious matter, and generally one of resort where legislation initiated by the state is concerned".
While the committee recognised that there was no reason in principle why a member's bill should not create a new offence, it concurred with the view that Parliament, when considering legislation that makes criminal activities that have been lawful for a long time, should be scrupulous in ensuring that the scope and extent of the criminal conduct is as tightly defined as possible. Indeed, the committee was unable to reach a unanimous view on whether the sections as then drafted made the offences sufficiently clear.
When Parliament met on 19 September, clear undertakings were made that new proposals would be introduced relating to the offences that are set out in the bill. However, when Lord Watson lodged his amendments five minutes before the deadline for stage 2 consideration in committee, it was clear that—contrary to my expectations and those of others—there was no intent to introduce a specific crime of participating in a mounted fox hunt. Indeed, somewhat contrary to what could be said to be the will of Parliament as expressed on 19 September, the bill contains no specific prohibition of mounted activities and makes no specific reference to other identified activities such as hare coursing and fox baiting.
When Mike Rumbles sought to raise the issue of sport, which Tricia Marwick had referred to in her closing address, the Scottish Executive, for once neutral, interjected and that amendment was voted down. Accordingly, from the stage 2 process, we emerged with three offences.
The principal offence is set out in section 1(1) and the other offences are set out in sections 1(3) and 1(4). As I have said, I am not satisfied that the case has been made for those exemptions in the context of existing criminal law of Scotland, which makes it a crime for someone to conspire to be, or to be art and part, or to be acting in concert relative to criminal activity. Anybody who actively supported criminal activity, with intent, would already be capable of being charged with an offence under Scots law. Those who support the provisions of section 1 have to justify why they believe that two new crimes should be created.
A contextual point will arise throughout this afternoon's deliberations. If Parliament is to pass the bill, it must determine where the offences lie on the scale of criminality. The provisions indicate that they are rated higher than many drugs offences, for example. I believe that those who support the bill must set out the case for the inclusion of sections 1(3) and 1(4).
Since Monday, I have become increasingly concerned about section 1(4) because Mrs Karen Gillon has lodged an amendment that seeks to compensate only those people who would have been carrying out an activity had that activity not been made criminal by section 1 of the bill. I cannot believe that Mrs Gillon would promote an amendment that seeks to compensate, in effect, nobody. That is what would happen if my understanding of responsibility, as it relates to direct control over dogs, is correct. I want members to understand what is meant by responsibility in the bill, because it has an important bearing on the compensation amendment that has been lodged.
I have no difficulty with Mr Finnie's amendments 34 and 35. If the offences that are referred to in sections 1(3) and 1(4) are to be created, that would be better done on the basis of amendments 34 and 35. My only query is why such textual amendments were not lodged at stage 2 when the Executive was represented at all 18 hours of the Rural Development Committee's deliberations on the bill.
I move amendment 2.
In the same item of business
The Deputy Presiding Officer (Mr George Reid):
SNP
Before we begin the stage 3 proceedings on the Protection of Wild Mammals (Scotland) Bill, I want to make the usual announcements about the procedures to be ...
David Mundell (South of Scotland) (Con):
Con
On a point of order, Presiding Officer. Although I accept the right of the Presiding Officer to select amendments for the stage 3 debate, I want to draw your...
The Deputy Presiding Officer:
SNP
I am being very lenient in allowing you to put that on the record, Mr Mundell.The Presiding Officers give serious consideration to all amendments, according ...
Section 1—Prohibition and offences
The Deputy Presiding Officer:
SNP
Amendment 2, in the name of David Mundell, is grouped with amendments 34, 3, 35, 38, 44, 45, 54, 57, 60, 61, 62, 65, 67, 69 and 18. Amendment 2 does not pre-...
David Mundell:
Con
There is some misapprehension that amendments that are lodged to find out the intention of those who are promoting the bill are deliberate wrecking amendment...
The Deputy Presiding Officer:
SNP
I call the minister to speak to amendments 34, 35, 38, 44, 45, 54, 57, 60, 61, 62, 65, 67 and 69, and the other amendments in the group.
The Minister for Environment and Rural Development (Ross Finnie):
LD
Thank you, Presiding Officer. Despite that long list, I assure members that I shall be mercifully brief.I start by making it clear that my position as minist...
The Deputy Presiding Officer:
SNP
I call Alex Fergusson to speak to amendment 18 and the other amendments in the group.
Alex Fergusson (South of Scotland) (Con):
Con
I have no comment to make on the other amendments in the group. I will keep my remarks on amendment 18 brief. The amendment seeks to make an insertion at sec...
The Deputy Presiding Officer:
SNP
I will not be able to call all speakers at all stages of this debate, but I will try to keep a balanced coverage.
Tricia Marwick (Mid Scotland and Fife) (SNP):
SNP
Before I start, I record that I have received legal advice from the Scottish Campaign Against Hunting With Dogs and Advocates for Animals.This Parliament, an...
Alex Fergusson:
Con
Will the member give way?
Tricia Marwick:
SNP
Everyone in this Parliament has a duty to ensure that that does not happen. Bristow Muldoon, I and others will do our best to guide members through this stag...
David Mundell rose—
Con
Tricia Marwick:
SNP
I had hoped that Alex Fergusson, following his admission in The Daily Telegraph last week that his Rural Development Committee had let in wrecking amendments...
Alex Fergusson:
Con
On a point of order, Presiding Officer. I am quite aware that as convener of the Rural Development Committee, and as an MSP, I am open to criticism for my ac...
The Deputy Presiding Officer:
SNP
I make no comment on that.
Tricia Marwick:
SNP
After the first of perhaps many bogus points of order, I will continue.Hare coursing is one of the key activities that the Parliament thought it was banning....
The Deputy Presiding Officer:
SNP
The member has one minute.
Tricia Marwick:
SNP
Mounted fox hunts also involve two groups of people.Alex Fergusson's amendment 18 was roundly slammed, even in the Rural Development Committee. Rhoda Grant m...
Fergus Ewing (Inverness East, Nairn and Lochaber) (SNP):
SNP
I cannot support the Conservative members' stage 3 amendments 2, 3 and 18. That will come as no surprise, as I opposed them at stage 2 and my arguments remai...
Mr Mike Rumbles (West Aberdeenshire and Kincardine) (LD):
LD
I support the Executive amendments in the group, because they will tidy up the bill. Like Fergus Ewing, I oppose amendments 2, 3 and 18. In particular, I opp...
The Deputy Presiding Officer:
SNP
I want to make progress and regret that some members will not be called. I move straight to the member-in-charge, Bristow Muldoon.
Bristow Muldoon (Livingston) (Lab):
Lab
I welcome the opportunity to comment on this group of amendments and to speak as one of the co-members in charge of the bill. I thank Mike Watson and Tricia ...
Phil Gallie (South of Scotland) (Con):
Con
Will the member give way?
Bristow Muldoon:
Lab
No. I want to respond to amendments 2, 3 and 18. Plenty of members have spoken in support of them.
Phil Gallie:
Con
I am aware of that, but—
The Deputy Presiding Officer:
SNP
Order. The member is not giving way, Mr Gallie.
Bristow Muldoon:
Lab
Fergus Ewing made a telling point against David Mundell's suggestion. He said:"Having decided, as a committee, that it is an offence to deliberately hunt a w...