Scottish Parliament, 13 February 2002

550 contributions from 52 members. The official report.

Introduction

Motion of Condolence

George Reid (Scottish National Party, Mid Scotland and Fife)

This meeting of the Parliament has been convened to consider motion S1M-2728, a motion of condolence, in the name of Jack McConnell, on the death of Her Royal Highness, the Princess Margaret.

Jack McConnell (Labour, Motherwell and Wishaw)

It is with great sadness that we convey our sincere condolences to members of the royal family on the death of Her Royal Highness, the Princess Margaret, Countess of Snowdon. In particular, we express our sympathy to Her Majesty the Queen on the loss of her younger sister; to Her Majesty the Queen Mother on the loss of her beloved daughter; and to Lord Linley and Lady Sarah Chatto on the tragic loss of their mother. Our thoughts are with them at this difficult time and their grief is shared by members of the Parliament and by people across Scotland.

In offering our condolences and sympathy to her family, we also pay tribute to Princess Margaret's contribution to public life in Scotland and offer our gratitude for her particular commitment to working with children and young people.

She remained devoted to the Guide Association, of which she was president, and with which she had a close involvement for over 60 years. She was a patron of Barnardos and its president between 1948 and 1984. One of her earliest appointments in public life was as a patron of the Scottish Children's League; she became its president in 1966. She continued her support for the organisation and became president of the current body, Children 1st. Through her fundraising support, including that for the annual "touch of tartan" ball in Aberdeen, she helped to bring additional resources for the organisation's important work. That is a record of commitment to and support for our children and young people that stretches over a lifetime and that leaves a valuable and lasting legacy.

The princess was also a great supporter of the arts. She was a patron of Scottish Ballet from 1984 and was involved with the Scottish Community Drama Association, among other organisations. Alongside that, she gave her time and energy to health and medical charities: as a patron of the Terence Higgins Trust and Lighthouse, of the Royal College of Nursing, of the Heart Disease and Diabetes Research Trust and of the Princess Margaret Rose hospital here in Edinburgh.

There are many other organisations that I could add to that list, which benefited from and welcomed her support. Through them all, we can see a thread of constant interest and concern in the princess's using her position and efforts to help others and to promote work that is dear to the hearts of people in Scotland and to our values. The affection that we have for her comes not simply from her Scottish heritage, but from that work and lifetime commitment.

She was born at Glamis castle, spent much of her childhood on Deeside and, throughout her life, took a keen interest in Scottish affairs, visiting Scotland many times each year.

Princess Margaret was more than a public figure. She was also a loving mother and grandmother, who was proud of her children and never happier than when surrounded by her family. It is that family who will mourn her most, so it is to them that the people of Scotland send our sympathies. We do so with sadness, but also with thanks for the support and commitment that she offered over the years to many people and organisations and for the contribution that her life made to improving the lives of so many others.

I move,

That the Parliament wishes to express its deep regret and sadness at the death of HRH The Princess Margaret and to convey its sincere condolences to Her Majesty The Queen, Her Majesty Queen Elizabeth The Queen Mother and other members of the Royal Family in their sad bereavement.

John Swinney (Scottish National Party, North Tayside)

On behalf of the Scottish National Party, I associate myself with the motion moved by the First Minister and extend our sympathy to the royal family on the death of Princess Margaret.

The death of any individual brings enormous sadness for those who are left to mourn. In losing their mother, the princess's children will be enduring that sadness and we think of them today. No parent expects to lose a child, and that pain is probably the hardest to bear. We offer the Queen Mother our support in the pain that she must be suffering.

Many tributes have been paid to the princess since her death on Saturday. I was most struck by the words of the Prince of Wales, who said:

"She loved life and lived it to the full, and for that we will always remember her."

Living life to the full is much to be admired. It imprints us indelibly in the affections and memories of our friends.

Princess Margaret was born in 1930 in Glamis castle, in the constituency that I have the privilege of representing, and her birth was registered at the post office in Glamis. Each summer in her early years, Princess Margaret would visit Glamis and enjoy the Angus countryside. Her visits were interrupted by the onset of war, but they resumed regularly afterwards. The area was very precious to her, so precious that she requested that a special service be held in the chapel at the castle on the day of her funeral. A book of condolence has been opened at Glamis, and yesterday I spoke to Mary, Countess of Strathmore, who told me that many local people and visitors had taken the opportunity to sign the book.

Princess Margaret's interest in Scotland spread far beyond the confines of the county of Angus. For many years she was president of Children 1st, formerly the Royal Scottish Society for Prevention of Cruelty to Children. Until recent years she was a very active president, helping to raise funds for the vital work that Children 1st carries out in Scotland on behalf of the people of Scotland. That is just one of the causes for which she campaigned throughout her life, and for which she will be fondly remembered.

I extend my condolences to the Queen and to the royal family, and I associate my party with the motion.

David McLetchie (Conservative, Lothians)

I associate the Scottish Conservative members of the Parliament, and the Scottish Conservative party as a whole, with the motion of condolence following the death of Her Royal Highness Princess Margaret, Countess of Snowdon.

It is fitting that the motion should be lodged in the first Scottish Parliament for almost 300 years, because—as the First Minister and Mr Swinney noted—Princess Margaret's birth at Glamis was the first royal birth in Scotland since the 17th century.

Throughout her life Princess Margaret sustained and nurtured her links with Scotland. Those of us who live in the city of Edinburgh think of her association with the Princess Margaret Rose orthopaedic hospital. Tribute has also been paid to her for her support for the arts and patronage of Scottish Ballet.

It is particularly poignant that Princess Margaret's death should fall in the year of the Queen's golden jubilee and in the very week that marked the 50th anniversary of the Queen's accession to the throne. This must be a particularly difficult week for the Queen Mother, as pride in the accomplishments of her elder daughter is mixed with the sadness of the recollection of the loss of a husband—a sense of loss now heightened by the death of her younger daughter. As Mr Swinney pointed out, the death of a child is a distressing affront to the natural cycle of life, irrespective of the age of the parent.

Today we acknowledge and pay tribute to Princess Margaret for the service that she rendered our country and the unswerving support that she has given to Her Majesty throughout her reign, both publicly and privately, as a member of the royal family. Like the First Minister and Mr Swinney, we recognise not only her patronage of and commitment to the arts, but her important contribution to the work of children's charities in Scotland and in Britain.

She combined that work and service with being a devoted mother. The tributes paid to her show the enormous affection and regard in which she was held, both within the royal family and in the wider world. As we meet this afternoon, our sympathies are with her son, David, Lord Linley, with her daughter Lady Chatto, with the Queen, with the Queen Mother and with all other members of the royal family.

Jim Wallace (Liberal Democrat, Orkney Islands)

On behalf of the Scottish Liberal Democrats, I join the other party leaders in supporting the motion moved by the First Minister, in paying tribute to Princess Margaret and in expressing condolences to her family at this sad time of bereavement.

Much has been said regarding the princess's birth at Glamis—the first royal birth in Scotland since the 17th century. Princess Margaret's birth was also noteworthy for being the last royal birth at which the Home Secretary was required to be present.

Princess Margaret had an affinity with the land of her birth. She came here not only on official duties, but on private visits, often to undertake engagements at local charitable events. She was the colonel-in-chief of the Royal Highland Fusiliers, known as Princess Margaret's Own Glasgow and Ayrshire Regiment. I recall listening to her "Desert Island Discs" broadcast, in which her record selection included "Scotland the Brave". She chose that tune especially because of the positive thoughts and memories that it evoked.

Hers was a royal life, and so a life committed to public duty. She was a lady with a lively intellect who supported and encouraged the arts, not least Scottish Ballet and the Royal Ballet. We have already heard about the many charitable organisations to which she devoted so much time and energy. It is proper that we highlight the work that she did to help children, particularly vulnerable children and abused young people. It is striking that in recent days those involved in the charities with which the princess was associated have spoken warmly of her interest and encouragement.

Princess Margaret was a royal princess, but she was also a mother, grandmother, sister and daughter. For that reason, we hold the Queen, the Queen Mother and Princess Margaret's children—Lord Linley and Lady Sarah Chatto—in our thoughts and prayers and extend to them our deepest sympathy. We remember with gratitude a life that reflected a commitment to the service of others and to duty nobly fulfilled.

George Reid (Scottish National Party, Mid Scotland and Fife)

I am sure that all members will want to agree to the motion.

Motion agreed to.

Time for Reflection

George Reid (Scottish National Party, Mid Scotland and Fife)

Good afternoon. The leader of today's time for reflection is Ms Kathryn Hendry, Brahma Kumaris World Spiritual University representative of the Scottish Inter Faith Council.

Parliamentary Bureau Motion

George Reid (Scottish National Party, Mid Scotland and Fife)

Order. The next item of business is consideration of a Parliamentary Bureau motion and an amendment to that motion. As today is the first time that an amendment has been lodged to a business motion, I want to explain the procedure.

Standing orders state that there can be only one speaker for and one against the business motion and any amendment to that motion. Today, therefore, there will be four speakers. No one else has the right to contribute to the debate. Each of the speakers will have a maximum of five minutes—they do not need to take all that time—and the debate cannot last longer than 30 minutes.

I ask Euan Robson to move motion S1M-2742, which is a timetabling motion on the Protection of Wild Mammals (Scotland) Bill.

Euan Robson (Liberal Democrat, Roxburgh and Berwickshire)

The motion has been agreed with all the main political parties and has been lodged in consultation both with those who are leading for and with those who are leading against the bill. Overall, the motion provides sufficient time for consideration of the 23 groups of amendments, although a business-like approach will obviously be required. The timetable compares favourably with that for stage 3 of the Housing (Scotland) Bill, when 200 amendments in 32 groups were disposed of in a shorter period.

It is important to remember that the purpose of the timetabling motion is not to inhibit proper examination of legislation, but to structure the debate to ensure that sufficient time is allowed for later groupings. That is in line with the consultative steering group recommendations.

I move,

That the Parliament agrees that, at Stage 3 of the Protection of Wild Mammals (Scotland) Bill, debate on each part of the proceedings shall be brought to a conclusion by the time-limits indicated (each time-limit being calculated from when Stage 3 begins and excluding any periods when the meeting is suspended)— Group 1 to Group 3—no later than 45 minutes Group 4 to Group 6—no later than 1 hour 45 minutes Group 7 to Group 10—no later than 2 hours 15 minutes Group 11—no later than 2 hours 45 minutes Group 12 to Group 18—no later than 3 hours 30 minutes Group 19—no later than 4 hours 15 minutes Group 20 to Group 22—no later than 4 hours 45 minutes Group 23—no later than 5 hours Motion to pass the Bill—no later than 6 hours.

Alex Johnstone (Conservative, North East Scotland)

The reason why I lodged amendment S1M-2742.1 is that which I made clear two weeks ago, when I first saw the provisional business motion. I am seriously concerned that we are about to amend the bill in such a radical manner that, at the end of the debate, it may be difficult to work out exactly what we are debating. For that reason, it is important that an appropriate time elapses between the completion of amendments and the debate on the motion to pass the bill.

I move amendment S1M-2742.1, to leave out "no later than 6 hours" and insert:

"to be taken on another day."

Patricia Ferguson (Labour, Glasgow Maryhill)

I must say that I cannot help but think that Mr Johnstone is simply employing a delaying tactic. As my colleague Mr Robson has indicated, the motion was discussed and agreed by all the business managers. Despite the fact that he was given ample opportunity to do so, Mr Johnstone did not find it necessary to raise this issue at yesterday's meeting of the Parliamentary Bureau. As he has made no attempt to discuss the amendment with the business managers before today, I find it difficult to understand why he has now decided to move the amendment.

As far back as 31 January, Mr Johnstone has had opportunities to debate his suggestion in the chamber. Tomorrow's debate on the Water Industry (Scotland) Bill—for which more amendments have been lodged for than for today's debate—will be dealt with expeditiously, yet I have not had any complaints about the timetabling of that debate. If Mr Johnstone and his members have any difficulty in keeping track of what happens this afternoon, there are plenty of other members in the chamber who will be happy to assist them.

Bill Aitken (Conservative, Glasgow)

I will not detain the chamber long, because the issue is fairly straightforward. It is worth pointing out that, when this was first canvassed at the bureau, it was agreed—as the Minister for Parliamentary Business said—but with the caveat that if there were a substantial number of amendments, there could be difficulties. I was not present, but I am advised that Mr Johnstone raised the matter at the bureau two weeks ago. He certainly raised it in the chamber two weeks ago. Unless we want a great deal of confusion, there will have to be a separation of the debate into two days. We will adhere to that line.

Patricia Ferguson (Labour, Glasgow Maryhill)

The question is, that amendment S1M-2742.1, in the name of Alex Johnstone, which seeks to amend business motion S1M-2742, in the name of Patricia Ferguson, on the timetabling of stage 3 of the Protection of Wild Mammals (Scotland) Bill, be agreed to. Are we agreed?

Patricia Ferguson (Labour, Glasgow Maryhill)

There will be a division.

Patricia Ferguson (Labour, Glasgow Maryhill)

The result of the division is: For 20, Against 97, Abstentions 2.

Amendment disagreed to.

Patricia Ferguson (Labour, Glasgow Maryhill)

The second question is, that motion S1M-2742, in the name of Patricia Ferguson, on the timetabling of stage 3 of the Protection of Wild Mammals (Scotland) Bill, be agreed to. Are we agreed?

Patricia Ferguson (Labour, Glasgow Maryhill)

There will be a division.

Patricia Ferguson (Labour, Glasgow Maryhill)

The result of the division is: For 100, Against 19, Abstentions 1.

Motion agreed to.

That the Parliament agrees that, at Stage 3 of the Protection of Wild Mammals (Scotland) Bill, debate on each part of the proceedings shall be brought to a conclusion by the time-limits indicated (each time-limit being calculated from when Stage 3 begins and excluding any periods when the meeting is suspended)— Group 1 to Group 3—no later than 45 minutes Group 4 to Group 6—no later than 1 hour 45 minutes Group 7 to Group 10—no later than 2 hours 15 minutes Group 11—no later than 2 hours 45 minutes Group 12 to Group 18—no later than 3 hours 30 minutes Group 19—no later than 4 hours 15 minutes Group 20 to Group 22—no later than 4 hours 45 minutes Group 23—no later than 5 hours Motion to pass the Bill—no later than 6 hours.

Protection of Wild Mammals (Scotland) Bill: Stage 3

George Reid (Scottish National Party, Mid Scotland and Fife)

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 followed.

We will deal first with amendments to the bill and then move to the debate on the motion to pass the bill. For the first part, members should have a copy of the bill as amended at stage 2; the marshalled list, which contains all the amendments that I have selected for debate; and the groupings, which have been agreed. Amendments will be debated in groups where appropriate.

An amendment that has been moved may be withdrawn with the agreement of members present. It is, of course, possible for members not to move amendments should they so wish. The electronic voting system will be used for all divisions. I will allow an extended voting period of two minutes for the first division that occurs after each debate on a group of amendments.

Members should note that the marshalled list contains a number of manuscript amendments. The Presiding Officer has agreed under rule 9.10.6 that all those manuscript amendments may be moved. Should any further manuscript amendments be lodged, it will be for the occupant of the chair at the time to decide whether to give agreement in that case.

Should there be a tied vote on any amendment, the occupant of the chair will exercise the casting vote against the amendment.

David Mundell (Conservative, South of Scotland)

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 attention to the fact that, by not selecting my amendment 26, which required the causing of unnecessary suffering to be included as part of the offence under section 1, you have greatly restricted the opportunity for the issue of cruelty to be debated this afternoon. It is quite clear from the correspondence that other members and I have received that people throughout Scotland have a misapprehension that the bill makes specific reference to cruelty.

George Reid (Scottish National Party, Mid Scotland and Fife)

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 to the criteria on pages 40 and 41 of the "Guidance on Public Bills". We never comment on our reasons for individual decisions and there is due cause for that. We do not intend to comment on Mr Mundell's amendment, but his point is now on the record.

George Reid (Scottish National Party, Mid Scotland and Fife)

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-empt amendment 34, so if amendment 2 is agreed to, amendment 34 will still be called. Similarly, amendment 3 does not pre-empt amendment 35.

David Mundell (Conservative, South of Scotland)

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.

George Reid (Scottish National Party, Mid Scotland and Fife)

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.

Ross Finnie (Liberal Democrat, West of Scotland)

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 minister and the position of Allan Wilson, the Deputy Minister for Environment and Rural Development, are quite simple. We are trying to do a number of things. We are seeking to move amendments where we believe genuinely that, if it is the will of Parliament to pass the bill, the context and content of the bill must be in a form that will eventually make it workable in both a practical and a legal sense—but primarily the latter. However, we have no position on the policy instrument. After all, the bill is a member's bill. Obviously, Allan Wilson and I have to comment where any amendment or section cuts across existing Executive policy. Finally, we might wish to indicate areas where we think that the amendment or removal of a provision might cause some difficulties even if it does not lead to the bill being unworkable. My colleague and I will proceed on that basis.

David Mundell moved amendment 2. The group also includes amendment 3. The changes that are sought by those amendments are fundamental and one would normally expect them to have been made at stage 2. Clearly, it is for the chamber to decide whether the amendments are appropriate at this stage.

Like all the amendments in the group, amendments 34 and 35 are consequential upon a stage 2 amendment that changed the manner in which section 1(1) was expressed. Given the terms in which that section is now expressed, it is clearly no longer appropriate to refer to contravening subsection (1).

The remainder of the amendments in my name in the group—amendments 38, 44, 45, 54, 57, 60, 61, 62, 65, 67 and 69—are drafting amendments. I hope that they will all be accepted. They are merely technical amendments that are designed to reflect a change of wording in the offence provision and to make its interpretation clear and unambiguous.

The group also contains Alex Fergusson's amendment 18, which no doubt he will move, which seeks to define a defence to the offence. In terms of interpreting the bill—if it is passed—we do not regard amendment 18 as helpful, but we have no further comment to make on it.

George Reid (Scottish National Party, Mid Scotland and Fife)

I call Alex Fergusson to speak to amendment 18 and the other amendments in the group.

Alex Fergusson (Conservative, South of Scotland)

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 section 5 on proceedings and penalties. It is a simple amendment, which is self-explanatory and requires little to be said about it. Amendment 18 will ensure that innocent landowners are not prosecuted during the course of proceedings under the legislation.

The whole chamber could agree that it would be wholly unfair for a landowner—let us not forget that the Scottish Executive is a landowner, as is the National Trust for Scotland—to be prosecuted in connection with an offence that a tenant committed by allowing the tenanted land to be used for hunting or coursing. If amendment 18 is not accepted, landowners could be placed in the impossible, and surely undesirable, position of having to police their tenants in a rather unsatisfactory manner, and indeed of having to prove that they themselves did not knowingly permit an offence to take place. That reverses the normal burden of proof, which is surely not the intention of the bill.

George Reid (Scottish National Party, Mid Scotland and Fife)

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 (Scottish National Party, Mid Scotland and Fife)

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, and those of us who have fought for many years for a Scots Parliament, have a duty to ensure that the legislation that we pass is good legislation. By that I do not suggest that we should all agree with every piece of legislation that is passed—I do not—but that the legislation itself should be sound. It is the duty of all members to ensure that we pass good legislation.

Over the past few months, amendments have been lodged and passed by members of the Rural Development Committee that do three things. Today, we have a whole slew of amendments that serve the same purposes. First, they seek to confuse; secondly, they seek to wreck; and thirdly, they are designed to create loopholes in the bill to allow the very activities that this Parliament wishes to ban to continue, and perhaps pave the way for future challenges in the courts to legislation that the Scottish Parliament has passed.

Alex Fergusson (Conservative, South of Scotland)

Will the member give way?

Tricia Marwick (Scottish National Party, Mid Scotland and Fife)

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 stage this afternoon. If members are opposed to the bill—I accept that some members are opposed to the bill—they should oppose the motion to pass the bill. That is the moral and honourable position to take.

David Mundell's amendments 2 and 3 and Alex Fergusson's amendment 18 are quite outrageous. Have those members not realised that the Parliament has expressed its support for the principle of a ban on hunting, or are they determined to create more loopholes?

David Mundell (Conservative, South of Scotland)

rose—

Tricia Marwick (Scottish National Party, Mid Scotland and Fife)

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, would take this opportunity to remedy the situation. He has not done so.

Alex Fergusson (Conservative, South of Scotland)

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 actions. However, given that Miss Marwick, I assume, does not know which amendments were or were not refused by me at stage 2, is it right that aspersions should be cast on the clerks of the Rural Development Committee, on whose advice the convener relied? That is what Tricia Marwick is doing.

George Reid (Scottish National Party, Mid Scotland and Fife)

I make no comment on that.

Tricia Marwick (Scottish National Party, Mid Scotland and Fife)

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. I do not know whether David Mundell and Alex Fergusson have taken the time to brief themselves on how hare coursing works. Two types of people are involved: one set owns the dogs and the other owns the land. Any realistic attempt to ban hare coursing must deal with both groups of people. Exempting landowners from legislation may be the Conservative way, but I do not think that it is the way of the Parliament.

George Reid (Scottish National Party, Mid Scotland and Fife)

The member has one minute.

Tricia Marwick (Scottish National Party, Mid Scotland and Fife)

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 made a telling point when she gave the example of a landowner saying that his factor and not himself had given permission. Amendments 2, 3 and 18 are designed to create more loopholes in the bill. I urge members to vote against them.

Fergus Ewing (Scottish National Party, Inverness East, Nairn and Lochaber)

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 remain the same. They are arguments that, I hope, are based on clear rationality; if the will of Parliament is to ban mounted hunting, any landowner who knowingly permits that activity must surely be committing a crime.

The wording that is used in section 1(3) is "knowingly permits". I fail to see why section 1 should be amended. I agree with the remarks that were made by Tricia Marwick, although I may not express the argument in quite the same way. I also endorse and support the Executive amendments in the group. Frankly, they are amendments that serve to tidy up the bill. I hope that members will support them. I urge members to reject the Conservative members' amendments 2, 3 and 18 and to support the Executive amendments in the group. I hope that my sponsorship of the Executive amendments will add considerably to the vote. I am not sure whether my role in the chamber makes me a quarried species—time will tell.

I will be brief, but I want to make some serious remarks. We are engaged in a serious activity—the most serious activity that legislators undertake—which is the activity of creating new crimes. David Mundell was right to quote from the Justice and Home Affairs Committee report to the Rural Development Committee. That report rightly acknowledged that:

"the Parliament should be scrupulous in ensuring that the scope and extent of the criminal conduct is as tightly defined as possible".

The reason for that is that surely it would be wrong for anyone to turn people who are performing legitimate control activities in the countryside into potential criminals. We have a serious duty today and I hope that we will all have a free vote on the matter. That will ensure that, at the end of the day, we do not turn gamekeepers, terrier and hill pack men into potential criminals.

At stage 2, my approach was to attempt to improve what I regarded as fundamental flaws—conceptually and in drafting terms—in the bill. As Lord Watson will acknowledge, many critics at stage 1 expressed grave concerns about the need to protect those who perform pest control activities. My efforts at stage 2 were in no sense whatever intended to wreck the bill; they were intended to make the bill workable. I say that as someone who will never be accused of being the bill's most fervent supporter.

Mike Rumbles (Liberal Democrat, West Aberdeenshire and Kincardine)

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 oppose amendment 18.

We have a duty today, when we examine every amendment, to ensure that we make a clear distinction between outlawing hunting for sport and hare coursing—the purpose of the bill as espoused by Mike Watson—and ensuring that the legitimate activities of Scottish gamekeepers, foot packs and farmers in upland Scotland are protected.

I do not want confusion to be added to the bill and amendment 18 would do just that. The bill quite clearly refers to

"An owner or occupier of land who knowingly permits another person to enter".

Amendment 18 is completely unnecessary because it would only add confusion. I urge members to vote against amendments 2, 3 and 18.

George Reid (Scottish National Party, Mid Scotland and Fife)

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 (Labour, Livingston)

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 Marwick for their work on the bill to date. I also want to declare the same interest that Tricia Marwick declared: I have received some advice and guidance from the SCAHD and Advocates for Animals on the preparation of amendments and the impact of other members' amendments. I have reported that assistance to the Standards Committee.

I want to leave as much time as possible for other members to speak, so I do not intend to take up too much time in this debate. As amendments are debated, members who support the bill will make their views clear.

The first group of amendments is fairly simple. All the minister's amendments are technical; indeed, the bill's supporters are perfectly comfortable with the amendments that the minister has lodged and will support them all today.

I turn to amendments 2, 3 and 18. When the bill was handed back to the Rural Development Committee after the stage 1 parliamentary debate, no one expected it to receive an easy ride. However, it would have been reasonable to expect that the bill that came back to Parliament would not permit mounted fox hunting. Alex Fergusson has already indicated to The Daily Telegraph that the bill now permits that activity. Given that fact, it is all the more striking that the amendments were either rejected or not debated by the Rural Development Committee at stage 2. Seven committee members to four voted against what are now amendments 2 and 3, and what is now amendment 18 was withdrawn after it received cross-party criticism. If the Rural Development Committee—which agreed to a number of damaging amendments—rejected the proposals, it is all the more likely that Parliament will do the same.

David Mundell proposes that the people who knowingly permit their land or their dogs to be used for hunting should be exempt from the law and its penalties. However, as Mike Watson pointed out at a meeting of the Rural Development Committee, that would mean that people could organise mounted fox hunting or hare coursing events and not be subject to the bill.

David Mundell's suggestion was rejected at stage 2 by all Labour and SNP members.

Phil Gallie (Conservative, South of Scotland)

Will the member give way?

Bristow Muldoon (Labour, Livingston)

No. I want to respond to amendments 2, 3 and 18. Plenty of members have spoken in support of them.

Phil Gallie (Conservative, South of Scotland)

I am aware of that, but—

George Reid (Scottish National Party, Mid Scotland and Fife)

Order. The member is not giving way, Mr Gallie.

Bristow Muldoon (Labour, Livingston)

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 wild mammal with a dog, it would seem to be contradictory that we do not go on to conclude that those who have a role to play, as occupiers or owners of land, should also be committing an offence if they give express permission for that activity."—[Official Report, Rural Development Committee, 30 October 2001; c 2312.]

In lodging amendment 18, Alex Fergusson has taken over an amendment that was initially lodged by Murray Tosh and, rightly, criticised at the time. Rhoda Grant said that the amendment

"would read better if it said 'not involved' rather than 'not directly involved', as the landowner could be indirectly involved and therefore guilty of the crime along with the occupier of the land."—[Official Report, Rural Development Committee, 4 December 2001; c 2545.]

At the time, Fergus Ewing commented that the amendment would have an effect that Murray Tosh probably did not intend. He said that it would "provide a defence" for the landowner who gave implicit or indirect permission to a land manager or factor. If the land manager or factor passed on that permission, the landowner could then say that he only spoke to them and did not give direct permission.

Murray Tosh withdrew his amendment and I hope that, having heard the arguments against amendment 18 at the committee and now in Parliament, Alex Fergusson will do the same. It would be wrong to agree to a loophole that gave a landowner indirect permission to allow hunting and therefore exempted him from the bill's provisions.

For the sake of clarity, I oppose the Conservative amendments 2, 3 and 18.

David Mundell (Conservative, South of Scotland)

Mr Muldoon has made an interesting point, which is that the Rural Development Committee's view on amendments should prevail.

Bristow Muldoon (Labour, Livingston)

I did not say that.

David Mundell (Conservative, South of Scotland)

That is what he said. He pointed out that, if the committee passed an amendment, that gave it credibility, because its members had listened to the arguments in detail. Let us ensure that Mr Muldoon follows that philosophy throughout the afternoon.

Reading from the Rural Development Committee report is not especially productive. This is stage 3, and any arguments about the amendments must be made today. I ask once again why two more crimes are being introduced to the law of Scotland. Why are we not satisfied that the existing laws of Scotland allow the prosecution of people who conspire to commit criminal activities or who help others to carry out criminal activities? I have never said that those people should be exempt. What I am saying is that the existing law of Scotland does the business. There is no need to introduce additional crimes into Scots law for this purpose alone. That is why I press amendment 2.

George Reid (Scottish National Party, Mid Scotland and Fife)

The question is, that amendment 2 be agreed to. Are we agreed?

George Reid (Scottish National Party, Mid Scotland and Fife)

There will be a division. As this is the first division in the grouping, I shall allow two minutes for voting.

George Reid (Scottish National Party, Mid Scotland and Fife)

The result of the division is: For 17, Against 106, Abstentions 2.

Amendment 2 disagreed to.

Amendment 34 moved—[Ross Finnie]—and agreed to.

Amendment 3 moved—[David Mundell].

George Reid (Scottish National Party, Mid Scotland and Fife)

The question is, that amendment 3 be agreed to. Are we agreed?

George Reid (Scottish National Party, Mid Scotland and Fife)

There will be a division.

George Reid (Scottish National Party, Mid Scotland and Fife)

The result of the division is: For 17, Against 106, Abstentions 1.

Amendment 3 disagreed to.

Amendment 35 moved—[Ross Finnie]—and agreed to.

George Reid (Scottish National Party, Mid Scotland and Fife)

I call David Mundell to speak to and move amendment 4, which is in a group on its own.

David Mundell (Conservative, South of Scotland)

Amendment 4, as the title of its group suggests, relates to dog walking. I lodged the amendment because I feel that it is vital that the issue is clarified. I am not satisfied that the issue is clear on the basis of the assurances given to the Rural Development Committee at stage 2, so I hope that any members who choose to speak against the amendment will say more than was said in committee.

As one commentator rightly concluded, the bill could ban everything or it could ban nothing. I believe that anything that Parliament specifically does not want to ban should be set out explicitly in the bill. Parliament clearly does not want to ban dog walking, but some supporters of the bill—who, for some inexplicable reason, did not include a ban on mounted hunting in the bill—are concerned that a person could go out on a horse with their dog alongside them and claim that they were walking the dog. That, they say, would be a legitimate defence to the charge that they were hunting. I find that preposterous, but it is consistent with the poor drafting of the bill and with the failure of the bill's supporters to amend the bill in a focused way that would actually outlaw the things that they claim they want to outlaw. Instead, ordinary people who are going about their ordinary activities could be criminalised if they are the subject of malicious allegations.

The concern is not with dogs chasing rabbits. As those members who have read the bill in detail will observe, there is no attempt to deal in any way with cruel practices that may take place in relation to the hunting of rabbits. It will remain quite legal to hunt rabbits with packs of hounds, for hounds to tear the rabbit limb from limb and for people to indulge in all the alleged conduct that we hear about—the comments are never substantiated—in relation to fox hunting. There could be no clearer demonstration that the bill has no intention of tackling animal cruelty than its failure to cover rabbits. However, the pursuit by a dog of a stray cat living wild, or indeed of another stray dog, might be considered a crime on the part of the dog walker. That is the ludicrous position that the bill creates.

If it is the will of Parliament that dog walking should be excluded, let us say it clearly and categorically. We have said everything else that we want to exclude. It is appropriate that dog walking be treated similarly.

I move amendment 4.

Elaine Smith (Labour, Coatbridge and Chryston)

To say that the issue of the innocent dog walker has been overplayed would be an understatement. The issue has been spun in the press and to the Parliament, but the fact is that innocent dog walkers have never been under threat from the bill.

I was a member of the Rural Development Committee during the entire debate on dog walking and I heard some bizarre scenarios being suggested. The committee was advised by Rhona Brankin, who was representing the Executive, that if a dog killed a mammal while being walked,

"the Crown would have to prove that the dog was being used to hunt a wild mammal."

Mike Rumbles asked:

"Is the minister confirming that anyone who was out walking their dog and whose animal went off and hunted while it was out being walked could face prosecution?"

Rhona Brankin replied:

"In our view, it could not. That would be our advice."—[Official Report, Rural Development Committee, 20 November 2001; c 2434-35.]

To make things even clearer, the bill contains the phrase "deliberately hunts". That allows for accidental killing. Moreover, an amendment was passed to insert section 1A(1B) into the bill, which makes it crystal clear that, if the intention is to flush from cover with a dog and the dog accidentally kills the mammal, the dog handler is not liable for prosecution.

Amendment 4 adds nothing to the bill except a loophole. It would allow coursing in the name of exercising dogs. The amendment is totally unacceptable and I urge the Parliament to reject it.

Euan Robson (Liberal Democrat, Roxburgh and Berwickshire)

I received a representation from the Scottish Kennel Club about field trials in which there is no intent for the dogs that are involved to hunt or kill wild mammals, although a dog may occasionally inadvertently kill a wild mammal. I seek an assurance from the mover of amendment 4 or the proposers of the bill that, if the amendment is not agreed to, the Scottish Kennel Club's field trials will not be encompassed by the criminal offences that the bill would create.

Scott Barrie (Labour, Dunfermline West)

I will speak briefly to amendment 4, which is similar to an amendment that was defeated at stage 2. Given some of the amendments that the committee passed, that is perhaps telling—it shows how bad amendment 4 is.

To write into the bill that someone walking their dog does not commit an offence sounds harmless, but there are two problems. First, the bill provides the assurances that David Mundell seeks. Section 1(1) makes it clear that it is an offence to "deliberately" hunt. No one who is walking their dog could be thought to be deliberately hunting.

Secondly—and just as important—members need to be aware of the written evidence that was submitted to the Rural Affairs Committee by the Deerhound Coursing Club.

Phil Gallie (Conservative, South of Scotland)

Will the member give way?

Scott Barrie (Labour, Dunfermline West)

No.

The club told the committee that the purpose of coursing with deerhounds is to give dogs exercise and hence maintain the breed lest it

"degenerate into a mere decorative pet".

By exempting people whose primary purpose in this context is exercise, amendment 4 expressly and knowingly allows hare coursing by the Deerhound Coursing Club. As such, the amendment is against the general principles of the bill and I urge members to oppose it.

Allan Wilson (Labour, Cunninghame North)

The Executive neither resists nor supports amendment 4. However, our view is that the amendment is entirely unnecessary. A person who walks their dog is not deliberately engaging in the act of hunting and would therefore not commit an offence in respect of section 1 of the bill. Mr Mundell appears to have lodged the amendment for the avoidance of doubt, but we believe that it adds unnecessary clutter to the bill.

George Reid (Scottish National Party, Mid Scotland and Fife)

I have offered Mr Muldoon an opportunity to speak as the member in charge of the bill, but I understand that he has waived that opportunity on this occasion.

David Mundell (Conservative, South of Scotland)

I say to the minister that we are all for getting rid of unnecessary clutter, but I am afraid that the bill does exactly the opposite. However, I am reassured by the minister's robust statement. Perhaps if the previous minister had given such robust statements, a number of issues that are still in doubt would have been clarified.

Euan Robson made an important point. I cannot assure him that the activities to which he alluded would be safe under the bill as drafted.

Phil Gallie (Conservative, South of Scotland)

Will the member give way?

David Mundell (Conservative, South of Scotland)

I am afraid not, as I am winding up.

George Reid (Scottish National Party, Mid Scotland and Fife)

Mr Mundell, you should be brief.

David Mundell (Conservative, South of Scotland)

Section 1 of the bill gives cause to consider the legal interpretation of "deliberately". If a person goes somewhere where they know that there are wild animals and they know that their dog, although it is a pet, has a propensity to chase animals, they could still be deemed a perpetrator of a crime. Therefore, I will press amendment 4.

Brian Monteith (Conservative, Mid Scotland and Fife)

On a point of order, Presiding Officer.

George Reid (Scottish National Party, Mid Scotland and Fife)

The member should be brief, as I am anxious that falconry should also be debated.

Brian Monteith (Conservative, Mid Scotland and Fife)

Do I understand from what you said, Presiding Officer, that the proposer of the bill is unwilling or unable to give the point of clarification that Mr Robson seeks?

George Reid (Scottish National Party, Mid Scotland and Fife)

I will come back to that point within the next 10 minutes. As I say, I am anxious for falconry to be debated.

The question is, that amendment 4 be agreed to. Are we agreed?

George Reid (Scottish National Party, Mid Scotland and Fife)

There will be a division.

George Reid (Scottish National Party, Mid Scotland and Fife)

The result of the division is: For 32, Against 88, Abstentions 4.

Amendment 4 disagreed to.

George Reid (Scottish National Party, Mid Scotland and Fife)

Amendment 36 is in the name of Fergus Ewing. He has one minute before the knife falls.

Fergus Ewing (Scottish National Party, Inverness East, Nairn and Lochaber)

I have lodged amendment 36 because section 1D does not adequately protect the sport of falconry. Some smaller birds that are used, such as the goshawk or harris hawk, rarely kill the small wild mammal—typically a hare. They are not able to do so because they are too light and too small. Section 1D does not allow the human dispatch—usually done by wringing the hare's neck—which prevents the infliction of prolonged and unnecessary suffering. Without such dispatch, the hare would take much longer to die.

The exception under section 1D applies when

"that person acts to ensure that, once a wild mammal is found or emerges from cover, it is shot, or killed by a bird of prey".

That is the standard; one has to act to make certain that the mammal is killed or shot. I have just explained that, in the case of goshawks and many other smaller birds of prey, that cannot be ensured. I hope that the alternative wording in amendment 36 will allow falconry, which has persisted for 3,000 years, to continue.

I move amendment 36.

George Reid (Scottish National Party, Mid Scotland and Fife)

The knife is down on this grouping. The question is, that amendment 36 be agreed to. Are we agreed?

George Reid (Scottish National Party, Mid Scotland and Fife)

There will be a division.

I am afraid that this is another two-minute voting period. As the voting is going on, I advise members that I am conscious that parts of the Assembly Hall do not currently seem to have the maximum sound levels. The engineers are looking into that.

George Reid (Scottish National Party, Mid Scotland and Fife)

The result of the division is: For 37, Against 80, Abstentions 4.

Amendment 36 disagreed to.

George Reid (Scottish National Party, Mid Scotland and Fife)

I return to Mr Monteith's point of order. He will appreciate that I was trying to dispose of amendment 36. To the best of my understanding, Mr Monteith asked about the fact that Euan Robson had sought an assurance on behalf of a dog owners group about the effect of the bill on the group's activities. Mr Mundell could not give that assurance, Bristow Muldoon declined to give that assurance and the minister did not address the issue. The matter is a debating point and not a point of order.

Tricia Marwick (Scottish National Party, Mid Scotland and Fife)

I seek guidance from you, Presiding Officer. Fergus Ewing moved amendment 36, but because of the time constraints there was no opportunity for the sponsors of the bill to give an opinion. When we are coming close to the knife, I ask you to bear in mind the fact that other members might have a view.

George Reid (Scottish National Party, Mid Scotland and Fife)

Members will realise that I was doing my best to deal with amendment 36. I must work according to the clock; I will continue to do so and to balance the debate to the best of my ability.

George Reid (Scottish National Party, Mid Scotland and Fife)

Amendment 37 is grouped with amendments 37A, 6, 7, 48, 51, 52 and 53.

Allan Wilson (Labour, Cunninghame North)

The Executive amendments in the group are technical drafting amendments and I invite Parliament to support them. Amendment 37 is intended to introduce consistency on the issue of permission. We are content with David Mundell's amendment 37A, which would add the term "searching" to amendment 37. We were curious to see Jamie McGrigor's amendment 7, which proposes to insert the word "fish" into section 1A. No doubt Mr McGrigor has good reasons for that—we are all interested in learning them. We believe that Sylvia Jackson's amendment 51 does not add anything of value to the bill, but we leave it to Parliament to decide whether to support it.

I move amendment 37.

David Mundell (Conservative, South of Scotland)

Mr McGrigor will reveal all shortly.

I am pleased that the minister is content with amendment 37A, which is amendment 6 in another guise. Amendments 6 and 37A are important because the use of the words "stalk" and "flush" in section 1A implies that there is an existing target quarry. However, part of some pest control activities is to find the animal. The word "searching" should be included to allow for that.

I am not as benign as the minister in relation to amendment 51, which would effectively place a requirement on some people to carry guns in the countryside. It is clear that one result of the bill will be many more guns in the countryside. People will instinctively carry guns, because that will be a defence against a charge of carrying out one of the many activities that the bill criminalises. Amendment 51 would encourage everybody who goes out in the countryside to have a gun with them. That would be a most unhelpful scenario. I can imagine that, if two people went out with two dogs, one person would have the gun and the other would have general management of the dogs. [Interruption.]

George Reid (Scottish National Party, Mid Scotland and Fife)

Order. There are far too many private conversations going on in the chamber. If members wish to engage in conversation, they should do so outside.

David Mundell (Conservative, South of Scotland)

My interpretation of amendment 51—as ever, I am willing to be put right—is that it would mean that, unless the person carrying out the activities in section 1A(2) had a gun with them in every scenario, they would be guilty of a crime. I cannot think that that is what Sylvia Jackson intends or what Parliament would want. Accordingly, I vigorously oppose amendment 51. Unsurprisingly, I shall support Mr McGrigor's amendment 7.

I move amendment 37A.

Jamie McGrigor (Conservative, Highlands and Islands)

The reason for including the word "fish", which amendment 7 proposes, relates to mink. Mink predate on fish and are not indigenous to Scotland. Attempts have been made to eradicate them from Scotland. They predate on fish in the redds in the autumn, when salmon and sea trout are spawning. They are damaging to fish farms and they are pernicious killers that need to be controlled. That is the reason for including fish in the list of species that need to be protected.

Sylvia Jackson (Labour, Stirling)

Amendment 51 proposes to insert a phrase whereby the possession of firearms as well as a firearms certificate is required. An exemption to the bill is the permission of lawful pest control when the pest species is shot. As the bill is worded, a person could have the landowner's permission to carry out the activity and be the holder of a firearms licence or shotgun certificate but not have the weapon with them at the material time, thereby not showing that they have an intention to shoot. Amendment 51 closes that loophole.

The Scottish Society for the Prevention of Cruelty to Animals has urged the inclusion of amendment 51 in the belief that it would be helpful to police officers or other persons charged with implementing the provisions of the bill. The basis for exemptions for pest control in the bill is that the target wild mammal must be shot, if possible. In operational terms, it is not enough to require that the person undertaking the activity should have a firearms or shotgun certificate; he must also be in possession of the firearms at the material time. Anyone purporting to undertake pest control using dogs but not carrying a gun may be assumed to be engaged in baiting. Requiring possession of the gun at the material time clarifies the position and will assist officers of the law and persons seeking to carry out lawful pest control. I urge members to support amendment 51.

George Reid (Scottish National Party, Mid Scotland and Fife)

I shall allow brief speeches from Linda Fabiani and Mike Rumbles.

Linda Fabiani (Scottish National Party, Central Scotland)

I support the Executive's amendment 48. Section 1A(2) defines when it is acceptable to use dogs underground and in

"an enclosed space within rocks or other secure cover above ground".

That is one of the aspects of pest control with which many people have problems. The National Working Terrier Federation has accepted that the practice has suffered from many problems, hence its code of conduct. Its representative, Thomas Parker, told the Rural Development Committee:

"We have been trying to clean up what some people perceive as the not very nice end of the fox control business."—[Official Report, Rural Development Committee, 6 November 2001; c 2331.]

I understand that the Rural Development Committee did not feel able to support a code of conduct under the bill. However, I applaud the committee's efforts to define the boundary between legitimate terrier work, as conducted by the National Working Terrier Federation and gamekeepers, and illegitimate terrier work, as conducted by fox baiters.

The National Working Terrier Federation's code of conduct says:

"The prime objectives of properly conducted terrier work is to provide a pest control service."

Section 1A should make that clear. I stress that amendment 48 would not prevent the work of legitimate pest control. The tests of need in section 1A(1) are extremely broad. It will still be possible to send terriers down a hole or into a rock cairn to flush a fox from cover for pest control purposes. No one should send a dog underground, where it might fight a fox, unless they have a reason to do so.

Amendment 48 would protect gamekeepers and hill packs that have valid reasons for their activities and it would ensure that others could not abuse the provision as a loophole for entertainment purposes. I hope that members will support the amendment.

Mike Rumbles (Liberal Democrat, West Aberdeenshire and Kincardine)

I suggest that members should oppose amendments 7 and 51. We should oppose amendment 7, not just because Jamie McGrigor lodged it, but because it would have section 1A say that

"A person does not contravene section 1(1) by using a dog under control to stalk a wild mammal, or flush it from cover"

if that is done for the protection of fish. I say to Jamie McGrigor that that does not make sense.

Jamie McGrigor (Conservative, Highlands and Islands)

Will the member give way?

Mike Rumbles (Liberal Democrat, West Aberdeenshire and Kincardine)

No. Mr McGrigor has had his say.

On amendment 51, I would go further than the Executive's neutrality. I understand the reasons for lodging amendment 51, but I agree with David Mundell that the amendment should be opposed, as it would encourage people to take more guns into the countryside—and that is not to be encouraged.

George Reid (Scottish National Party, Mid Scotland and Fife)

Neither Mr Finnie nor Mr Wilson seems to want to make a ministerial comment. I cannot ask Mr Muldoon whether he wants to speak, as he is not in the chamber. I call David Mundell to wind up. Are you pressing amendment 37A, Mr Mundell?

David Mundell (Conservative, South of Scotland)

Yes. I thought that the ministers would press the amendment.

George Reid (Scottish National Party, Mid Scotland and Fife)

It is not for them. It is your call.

David Mundell (Conservative, South of Scotland)

Right. I press amendment 37A, which the Executive has indicated that it supports.

George Reid (Scottish National Party, Mid Scotland and Fife)

That is what we are on about.

Ross Finnie (Liberal Democrat, West of Scotland)

With apologies, Presiding Officer, I have a point of order. I was not entirely clear whether you were inviting me to make a comment or to press an amendment.

George Reid (Scottish National Party, Mid Scotland and Fife)

I was inviting you to comment, minister.

The question is, that amendment 37A be agreed to. Are we agreed?

George Reid (Scottish National Party, Mid Scotland and Fife)

There will be a division.

George Reid (Scottish National Party, Mid Scotland and Fife)

The result of the division is: For 97, Against 22, Abstentions 3.

Amendment 37A agreed to.

Amendment 37, as amended, agreed to.

Amendment 38 moved—[Ross Finnie]—and agreed to.

George Reid (Scottish National Party, Mid Scotland and Fife)

Amendment 39, in the name of Ross Finnie, is grouped with amendments 93, 5, 41, 94, 95, 46, 96, 47 and 97. I point out to members that if amendment 41 is agreed to, I cannot call amendment 94, which is pre-empted.

Ross Finnie (Liberal Democrat, West of Scotland)

I must apologise for inadvertently confusing the process at this stage. In lodging amendments that were genuinely designed to clarify the situation, amendments that were drafted earlier were, regrettably, also lodged. Those amendments are 39, 46 and 47 and they were subsequently selected, but the Executive does not propose to move them. Furthermore, we are in a difficult position because, if the amendments were moved, we would oppose them.

There are many amendments in this grouping. We believe that the balance of advantage in interpreting this part of the section lies in leaving the bill as drafted on the issue of a single dog. We believe that Alex Fergusson's series of amendments in this grouping and elsewhere that propose to insert the phrase "or a pair of dogs" after the word "dog" are unfortunate. Those amendments could make difficult the interpretation of the sections and would serve only to muddle interpretation of the bill. I am bound to say that we suggest that Parliament take account of that and reject those amendments.

We have a strong view on David Mundell's amendment 5. Having applied an interpretation and workability test, we are concerned that the deletion that is suggested by the amendment of the term "under control" would change the balance of interpretation in the section. We strongly recommend that the amendment be rejected. If the amendment were agreed to, it would cast doubt on the workability of the section and, therefore, of the bill. It is quite clear to us that the inclusion of the amendment—which relates to a dog, which can, in law, mean one dog or a number of dogs—coupled with section 1A, which allows a dog or a number of dogs to kill a wild mammal, would undeniably undermine one of the central tenets of the bill.

Amendment 41, which seeks to remove an "or a dog" provision, can be supported.

John Swinney (Scottish National Party, North Tayside)

It was difficult to make out from the Mr Finnie's last couple of sentences his attitude towards amendment 41 and the status of section 1A, which is material to some of the views that I hold on that issue. If he could clarify that attitude, it would be appreciated. We simply did not catch what he said.

Ross Finnie (Liberal Democrat, West of Scotland)

My principal concern is about David Mundell's amendment 5. Although we support the deletion of "or a dog" in section 1A, that is not as material as the insertion of "or a pair of dogs" into the section.

George Reid (Scottish National Party, Mid Scotland and Fife)

Will you clarify whether you are moving amendment 39, minister?

Ross Finnie (Liberal Democrat, West of Scotland)

I will not move amendments 39, 46 or 47.

Amendment 39 not moved.

John Home Robertson (Labour, East Lothian)

Will the minister give way?

George Reid (Scottish National Party, Mid Scotland and Fife)

Do you have a point of order, Mr Home Robertson?

John Home Robertson (Labour, East Lothian)

No.

George Reid (Scottish National Party, Mid Scotland and Fife)

Are you still down, Mr Finnie, or will you take the intervention?

Ross Finnie (Liberal Democrat, West of Scotland)

If it is just a point of clarification, I am in your hands.

George Reid (Scottish National Party, Mid Scotland and Fife)

It may help members.

John Home Robertson (Labour, East Lothian)

Clarification is precisely what I am after. It is helpful to the Parliament to get such guidance on interpretation from the minister. It would also be helpful if he would confirm whether the guidance that he is giving on the interpretation of amendments and sections is given by the Executive following consultation with the law officers.

Ross Finnie (Liberal Democrat, West of Scotland)

I confirm that point absolutely.

George Reid (Scottish National Party, Mid Scotland and Fife)

I clarify to members that, as Mr Finnie is not moving amendment 39, we move to the next series of amendments in the group, which are in the name of Alex Fergusson, and a debate takes place on those amendments.

I ask Alex Fergusson to move amendment 93.

Alex Fergusson (Conservative, South of Scotland)

Is not amendment 93 consequential to the minister's amendment 39, which he has not moved? Given the Executive's position on that, I do not intend to move amendments 93 and 95 to 97.

Amendment 93 not moved.

George Reid (Scottish National Party, Mid Scotland and Fife)

In that case, let me try my luck with Mr Mundell. I ask Mr Mundell to move amendment 5.

Ross Finnie (Liberal Democrat, West of Scotland)

On a point of order, Presiding Officer. I am sorry to be unhelpful. Immediately I sat down, my brain hit me very hard. [Laughter.] In clarification of my response to John Home Robertson, while it is the case that we consulted the law officers, as I said, my or any minister's advice is tendered in the name of the minister; it is not given in the name of the law officers.

George Reid (Scottish National Party, Mid Scotland and Fife)

Right. Mr Mundell, on you go. Move amendment 5. If you move it, a debate will take place on that amendment.

David Mundell (Conservative, South of Scotland)

I will move it, Presiding Officer, because it would be helpful on this occasion.

George Reid (Scottish National Party, Mid Scotland and Fife)

I am deeply grateful to you.

David Mundell (Conservative, South of Scotland)

Why am I surprised that Mr Finnie is so attracted to the expression "under control"? In the Rural Development Committee, I suggested that Mr McConnell should provide a definition, but that was not to be. Those who have looked closely at the Official Reports of the Rural Development Committee's stage 2 consideration will know that the committee considered that issue at great length.

Dr Elaine Murray, to her credit, lodged the amendment that inserted the term "under control" into the bill, but it was generally felt to be the best that we could do. The view was that it was not perfect, but the best that we could do. At that point in the Rural Development Committee's consideration, we did not have the minister's forthright and clear enunciation of views. It was not always possible to gauge which way the Executive or its law officers were leaning.

I felt that it was important that we bring the definition of "under control" back to Parliament today. I did so first to see whether anybody would come up with anything better than the definition at which the committee had arrived and that could be inserted into the bill and, secondly, because it raises clear issues about exactly what expressions such as "under control" mean. We must ensure, when passing legislation that will criminalise individuals, that that legislation and the guidance that individuals have as they go about their ordinary lives is clear on what activities are and are not criminal.

The minister has put forward a very robust case for the deletion of the phrase "under control". As the debate progresses, I will consider whether to press the issue to a vote. Moving amendment 5 helps. The minister's statement at this late hour—particularly the comments that he made to Mr Swinney and Mr Home Robertson—was helpful in clarifying the position.

There has been a persistent misconception that amendments that were introduced during the stage 2 process were intended to wreck the bill. That was not the intention. A majority of members agreed to the amendments. Labour members such as Rhoda Grant and Elaine Murray voted for the provisions in question. From what the minister has said, amendment 5 will allow legitimate gamekeeping activities to proceed and will counter any suggestion that the amendments at stage 2 were designed to wreck the bill. I support the position that has been set out by the minister.

I move amendment 5.

Sylvia Jackson (Labour, Stirling)

Amendment 41 is perhaps the most important amendment that we will debate and vote on today. In The Daily Telegraph last week, Alex Fergusson revealed what Mike Watson had said in the Rural Development Committee meeting on November 13—that amendment 53K at stage 2, which inserted the phrase "or a dog", ran counter to the general principles of the bill that had been accepted at stage 1. Mike Watson warned that amendment 53K could be used for deliberately hunting with dogs.

I lodged amendment 41 as a result of considering the issue from an animal welfare perspective. As the SSPCA has pointed out—

Alasdair Morgan (Scottish National Party, Galloway and Upper Nithsdale)

Given the explanation that the member has just given, will she clarify her view on Mr Ewing's amendment 94, which would replace "a dog" by "a single dog"? That would seem to exclude hunting with dogs, but would still allow single dogs to be used to target an animal that had got past the guns and was perhaps wounded.

Sylvia Jackson (Labour, Stirling)

It would take quite a long time to explain that. I am conscious of time. Suffice it to say that, as far as I understand it, the bill allows for lurchers and dogs of that nature to retrieve a wounded animal, which can then be shot. Whether one allows a dog or a number of dogs, the issue is still the same—one is allowing a dog to kill a fox or a wild mammal.

I must get on. The SSPCA has pointed out that the insertion of "or a dog" has the effect of allowing a dog or dogs intentionally to kill a fox or other wild mammal. Accidentally killing a fox is not the issue—that is adequately covered in section 1A(1B). The three words "or a dog" allow intentional killing of a fox or other wild mammal with a dog, as is the case with mounted hunts.

The SSPCA has stated in relation to using dogs for killing foxes:

"It may take a considerable time to kill a fox and this would not necessarily be humane."

The SSPCA maintains that the most humane way of disposing of a fox or other wild animal is by shooting. If the words "or a dog" remain in line 22, page 1, section 1A of the bill, from an animal welfare perspective—one that takes on board the views of the SSPCA—there is no point in proceeding with the bill.

In reply to earlier comments by Fergus Ewing, gamekeepers, hill packs and farmers must be able to continue their legitimate pest control activities under the bill, but they must do that in a way that is humane. The bill will allow that to happen—I am confident of that.

Fergus Ewing (Scottish National Party, Inverness East, Nairn and Lochaber)

I am extremely grateful to Sylvia Jackson for taking my intervention. Is she aware that the Scottish Gamekeepers Association, the Scottish Hill Packs Association, the National Working Terrier Federation, the National Farmers Union of Scotland and the Scottish Crofting Foundation have said that they regard amendment 94 as absolutely essential?

Sylvia Jackson (Labour, Stirling)

I have spoken to representatives of the Scottish Gamekeepers Association about amendment 41 and about the general drift of the bill as it is developing. They are firmly behind the bill as it stands. I urge members to vote for amendment 41. Having spoken with the gamekeepers this morning, I understand that they are quite content that stopping the mounted hunts will help with the humane aspects that we have pointed out. [MEMBERS: "The gamekeepers are here."] Yes, I can see them. They have also pointed out that they want the assurance that their practices will be allowed to continue. That is also what is wanted by the Scottish Hill Packs Association and by the farmers, who want to be assured that they can continue to use terriers for pest control.

I urge members—

Margo MacDonald (Independent, Lothians)

Will the member give way on a point of clarification?

Sylvia Jackson (Labour, Stirling)

I want to finish now. I urge members to vote for amendment 41 and to ban hunting with dogs. Amendment 41 is a key vote for the debate.

Fergus Ewing (Scottish National Party, Inverness East, Nairn and Lochaber)

I agree with Sylvia Jackson that amendments 41 and 94 are most important to me and to many other members who have an interest in this topic.

I urge members to vote for amendment 94, which is a compromise that has been freely given and which commands the support of many members outside the chamber. Contrary to what Sylvia Jackson said, I am convinced that amendment 94 is essential if gamekeepers, terrier men and hill pack men are to be able to carry out their work in Scotland.

Not only am I convinced of that, but yesterday I had written confirmation that that is the case from the Scottish Gamekeepers Association. That has also been confirmed by the Scottish Hill Packs Association, the National Working Terrier Federation, the Scottish Crofting Foundation and the National Farmers Union of Scotland. Jim Walker gave evidence on the damage that the fox did to 47 of his lambs during one short period at Easter.

I put it to Sylvia Jackson that, for such reasons, those organisations are not happy to see amendment 94 fall. In some circumstances, it is necessary to use a single dog to dispatch a fox. Lord Watson himself, recognising that necessity, has allowed for exceptions, such as the dispatch of orphan cubs below ground, and for situations in which seriously injured animals may need to be dispatched in the interests of their own welfare.

Those exceptions have been recognised, but there are other circumstances in which a lurcher needs to be used to dispatch a fox. Such circumstances even occur in cities. I have two examples. There was a lady in Giffnock whose poodle pup was attacked by a fox. As far as I am aware, it is not appropriate to use a rifle in Giffnock or any nearby parts such as Glasgow—I do not mean to discriminate. On another occasion, a lady was hanging out her washing and was accompanied by her Yorkshire terrier, when a fox appeared and suddenly attacked the dog, which was carried for a distance of about 20 yards before being dropped by the fox. The dog died of its injuries. When Mr Bill O'Donnell visited the garden, he could not locate the fox. However, firearms might have been necessary. From Caithness to Glasgow and all over Scotland, it is necessary for a single dog to be involved in such circumstances.

As I understand it, the only argument against the amendment—

Kenneth Macintosh (Labour, Eastwood)

Will the member give way?

Fergus Ewing (Scottish National Party, Inverness East, Nairn and Lochaber)

Not quite yet.

The only argument against amendment 94 is that it is a wrecking amendment. The amendment is a compromise amendment, which is designed to secure the agreement of the chamber. How on earth could amendment 94 be a wrecking amendment? How on earth could a mounted hunt procure that only a single dog affects the kill? That cannot be true.

I want to make another point that undermines the argument that Sylvia Jackson has made. If using more than one dog is so bad, why is it lawful under section 1A(1B) and section 3? No attempt has been made to delete 1A(1B), under which more than one dog can be used. There is a certain inconsistency.

In conclusion, I would say that the bodies that are represented in the public gallery—many of which I have worked closely with—are respectable bodies. They have put absolute clear blue water between themselves and some of the despicable campaigning tactics that we have seen and that we all deplore. They are responsible; they operate to the highest standards; they have a code of conduct that is guaranteed to prevent fox baiting; they have decades of experience; and they have informed me that they need amendment 94. If they do not get this amendment, we will be turning them into potential criminals. We must not allow that to occur. To do so would be to allow a grave injustice, which I fear would cast shame on the role that we have played in this bill.

Elaine Smith (Labour, Coatbridge and Chryston)

The words "or a dog" are not so much a loophole as an outer-space black hole that would send this bill up into orbit and, indeed, into oblivion. When the Rural Development Committee debated these issues, Mike Watson warned the committee about the impact of the proposed amendments. It will be obvious to anyone who reads the transcripts of those debates that the committee was voting to allow loopholes. The insertion of the words "or a dog" in this section is one of several ways in which I believe that the committee's amendments to the bill would permit hunting.

When the issues were debated, the loophole was clear. Mike Watson warned the committee, Rhoda Grant warned the committee and I warned the committee. I said that Fergus Ewing's amendment, to introduce this loophole, should not have been on the marshalled list in the first place. I took the view—and it certainly seems to have been confirmed—that amendment 53K would allow foxes to be flushed out and killed by dogs. At this point, it was obvious to Mike Watson, to Rhoda Grant and to me that it was a loophole. So why did the loophole not reveal itself to Alex Fergusson, the Rural Development Committee's convener, until his recent interview with The Daily Telegraph? Unfortunately, five members of the committee were so determined to allow this activity that our warnings came to nothing.

The committee was tasked with upholding the democratic decision of Parliament at stage 1 and with working with Mike Watson to include helpful amendments to allow the bill to proceed. The stage 2 amendment to include the words "or a dog" was unhelpful to say the least. In my view, it tried to wreck the aims and principles of the bill, despite what Fergus Ewing says. I urge the Parliament to support amendment 41. It is vital to do so. We must remove a glaring loophole that should never have been allowed.

John Swinney (Scottish National Party, North Tayside)

I intend to speak only once this afternoon, on this issue. The reason is the reason given by Sylvia Jackson: this is by far the most important debate that we will have this afternoon on the formulation of this bill.

I agree with Tricia Marwick that it is essential that we produce good legislation. A requirement of good legislation is to provide the clarity that allows people to understand the implementation of the legislation. Another requirement is for the legislation to have some force. In these respects, John Home Robertson's earlier intervention was especially helpful in clarifying the status of the advice from the law officers. It will be the law officers who will have to cast their eyes over this particular point.

I support a ban on mounted fox hunting and I want to vote for the bill at stage 3; however, I want to ensure that the legitimate activities of pest control are absolutely protected by the bill. I am certain that there is wide agreement on that point of policy across this chamber. I know that the Minister for Environment and Rural Development and his deputy share that agreement.

Strenuous efforts have been made to ensure that the bill contains adequate protection for pest control activities. However, there is one omission—and it is seen in the issues raised by amendments 94 and 41. I support amendment 94. It clarifies a point on which there is wide agreement. It is legitimate for packs of dogs to be used to flush foxes out of woodland so that they can be shot by marksmen at the periphery of the woodland. However, in the real world, foxes will be injured and may escape. There has to be provision in the bill, in this section, for a single dog to be used to dispatch a fox that may be injured.

I say "a single dog", because that relates to amendment 94, in the name of Fergus Ewing, which I urge members to support. It is important to specify a single dog because every other provision in the bill that creates an exception or relates to the dispatch of a fox allows for more than one dog to be used. That is true of sections 1B and 3(1)(c), both of which permit "a dog" to be used. It might be a curious definition, but in the bill "a dog" potentially means more than one dog. The bill would create a situation where it may well be possible for several dogs to be sent to dispatch an injured fox. That is unacceptable and contradicts the intent of the bill as outlined by the sponsors and the relevant amendments that were helpfully lodged by the Rural Development Committee.

That is why I think, dispassionately, that amendment 94 gives utter clarity: when a fox emerges from woodland, is shot and needs to be dispatched, it should be explicit that it is done by a single dog.

Elaine Smith (Labour, Coatbridge and Chryston)

Will the member give way?

John Swinney (Scottish National Party, North Tayside)

I will give way if I have any leeway to do so.

George Reid (Scottish National Party, Mid Scotland and Fife)

We have almost no time, Mr Swinney. We must conclude the debate on this group of amendments in 16 minutes.

John Swinney (Scottish National Party, North Tayside)

I appeal to Parliament to consider carefully and sensitively the point behind amendment 94. It gives the absolute clarity that the people sitting in the public gallery have been seeking. They are nodding their heads at what I am saying, but they were shaking their heads at what Sylvia Jackson said earlier. I know that we are not meant to be influenced by the public gallery, but we should bear in mind that they are people who live in Scotland today.

There is policy agreement in the Parliament on the point. I hope that we can find a way to ensure that amendment 41 is rejected and amendment 94 is agreed to.

Alex Fergusson (Conservative, South of Scotland)

I will be very brief. I point out to Elaine Smith that if an amendment was not accepted by the committee, it is because it failed to gain majority support—I have a funny feeling that that is called democracy.

I support strongly the position taken by John Swinney and Fergus Ewing. If the situation in relation to mounted fox hunting is not clear, amendment 94 will help to address it. It has been made obvious by the august and respected bodies that have been mentioned that amendment 94 is essential to their future survival. I urge members to agree to amendment 94.

George Reid (Scottish National Party, Mid Scotland and Fife)

Bristow Muldoon has waived his right to speak. I call Tricia Marwick to sum up.

Tricia Marwick (Scottish National Party, Mid Scotland and Fife)

I am summing up on behalf of the supporters of the bill. I thank the Executive for making clear the position in relation to amendments 39, 46 and 47, which should never have been lodged. It is unfortunate that the Presiding Officers could not agree to withdraw those amendments.

Those are the amendments that caused concern to the Scottish Gamekeepers Association. I have been working tirelessly with the association to ensure, as Mike Watson and I promised at stage 1, that the legitimate pest control activities could continue. I am satisfied that if the Parliament supports the appropriate amendments, as suggested by the pro-bill group, there will be nothing in the amended bill to stop the gamekeepers or hill packs from continuing.

Margo MacDonald (Independent, Lothians)

Will the member give way?

Tricia Marwick (Scottish National Party, Mid Scotland and Fife)

I am sorry, but I have no time to take an intervention.

Unless we agree to amendment 41 and remove the words "or a dog"—in this bill and other legislation, "a dog" means a pack of dogs—mounted fox hunts will be allowed to continue. If we substitute amendment 41 for amendment 94—Fergus Ewing spoke in favour of amendment 94 and my party leader supported the amendment—the bill will allow fox baiting to continue. It is unacceptable that the bill, which was intended to ban three things, be amended to allow either mounted fox hunts or bear baiting to continue. If the amendments are accepted, there will be nothing in the amended bill to give concern to the gamekeepers and the hill packs. I think that those people know that that is the situation. I have given them my word that that will be so. The matter is very important. I urge members to vote for amendment 41 and against amendments 5 and 94.

George Reid (Scottish National Party, Mid Scotland and Fife)

I remind members that they are debating amendment 5. I ask David Mundell to wind up.

David Mundell (Conservative, South of Scotland)

Thank you, Presiding Officer. I am sure that Tricia Marwick has read from cover to cover and both ways the Rural Development Committee report that was produced at the start of the process. That clearly indicated that fox baiting is already illegal. The committee did not find any serious evidence of widespread fox baiting as an activity in Scotland.

Tricia Marwick (Scottish National Party, Mid Scotland and Fife)

Will the member take an intervention?

David Mundell (Conservative, South of Scotland)

No. Tricia Marwick did not take interventions and she has had her say.

We heard Elaine Smith's colourful contribution. What Elaine Smith failed to point out was that she and all the members of the Rural Development Committee unanimously passed section 1A as advised because Mike Watson moved it. If Mike Watson had been so concerned that the provision undermined the bill, he should never have moved the amended section. It is a red herring to suggest that the section undermines the bill. It no more undermines the bill than all the other provisions in such a flawed bill. John Swinney, Fergus Ewing and others have eloquently—

Margo MacDonald (Independent, Lothians)

Will the member give way?

David Mundell (Conservative, South of Scotland)

Yes.

Margo MacDonald (Independent, Lothians)

Does David Mundell know whether advice was taken or any consultation held on the matter of enforcement in relation to amendments 94 and 41?

David Mundell (Conservative, South of Scotland)

The Justice and Home Affairs Committee carried out an inquiry. However, at that stage, the committee reported on a very different bill than that which has emerged from the stage 2 process. It is therefore difficult to comment objectively on enforcement arrangements. Anyone who reads the bill and who has listened to the debate so far will know that the Procurator Fiscal Service, the police and everyone else involved in the legal system are going to have an enormous job to enforce the proposed legislation.

One of the great ironies is that I think that I am one of the few lawyers who is not going to make a load of money out of the proposed legislation by interpreting every last dot and comma.

Christine Grahame (Scottish National Party, South of Scotland)

Gordon Jackson will.

David Mundell (Conservative, South of Scotland)

Gordon Jackson will, of course.

In amendment 94, Fergus Ewing has put forward the argument for inserting the word "single" and Tricia Marwick even opposes that. If the words "or a dog" are not to be deleted, she opposes the word "single". It is inconsistent. We need a bill that protects legitimate pest control activities and the minister's solution will provide that.

Bruce Crawford (Scottish National Party, Mid Scotland and Fife)

On a point of order, Presiding Officer. I want to make sure that I am absolutely clear about what is happening here. Members might want to support amendments 41 and 94. However, I think that you said earlier that if members vote for amendment 41, then it will not possible to vote for amendment 94. Can you confirm that?

George Reid (Scottish National Party, Mid Scotland and Fife)

That is correct.

The question is, that amendment 5 be agreed to. Are we agreed?

George Reid (Scottish National Party, Mid Scotland and Fife)

There will be a division.

David Mundell (Conservative, South of Scotland)

I was not intending to press amendment 5, but I will if it allows the process to proceed more easily.

George Reid (Scottish National Party, Mid Scotland and Fife)

You have to make up your mind one way or the other.

David Mundell (Conservative, South of Scotland)

I will not press amendment 5.

George Reid (Scottish National Party, Mid Scotland and Fife)

In that case, does Mr Mundell have the consent of the chamber to withdraw amendment 5?

Amendment 5, by agreement, withdrawn.

George Reid (Scottish National Party, Mid Scotland and Fife)

We move to amendment 6, which has already been debated with amendment 37. Are you moving amendment 6, Mr Mundell?

David Mundell (Conservative, South of Scotland)

My understanding is that amendment 6 was pre-empted by amendments 37 and 37A. They are inconsistent with each other in any case, so I will not move amendment 6.

Amendment 6 not moved.

Amendment 7 moved—[Mr Jamie McGrigor].

George Reid (Scottish National Party, Mid Scotland and Fife)

The question is, that amendment 7 be agreed to. Are we all agreed?

George Reid (Scottish National Party, Mid Scotland and Fife)

There will be a division.

Murray Tosh (Conservative, South of Scotland)

The result of the division is: For 42, Against 77, Abstentions 1.

Amendment 7 disagreed to.

Murray Tosh (Conservative, South of Scotland)

We move to the sixth group, for which we have but eight minutes. Amendment 8 is grouped with amendments 40, 9, 10, 49 and 50. Amendment 8 does not pre-empt amendment 40, so if amendment 8 is agreed to, amendment 40 will still be called. Similarly, amendment 49 does not pre-empt amendment 50.

Alex Fergusson (Conservative, South of Scotland)

Presiding Officer, you will be pleased to hear that I will be extremely brief. Amendments 8, 9 and 10 are designed solely to tighten up the drafting of section 1A to ensure that legitimate vermin control, which the Parliament has consistently said it does not wish to alter—though I fear for its future after the previous debate—can continue without the risk of malicious prosecutions. That will protect the hill packs and the gamekeepers.

The bill shows a considerable lack of sympathy with, and understanding of, pest control activities as they are carried out on the ground or the practical considerations of those who carry out those perfectly legitimate activities. Amendments 8, 9 and 10 do not seek to alter the substance of section 1A, but will give added protection to those people who are engaged in pest control activities which, I repeat, the Parliament stated at stage 1 it wished to exempt.

Amendments 40, 49 and 50 would similarly tighten up the wording of the bill, and would provide similar protection to those who undertake perfectly legitimate activities.

I move amendment 8.

Fergus Ewing (Scottish National Party, Inverness East, Nairn and Lochaber)

The amendments are important technical amendments. I await with interest the Executive's response. Members who read line 21 of page 1 of the bill will see that activities to control pests and other activities will be excepted

"only if that person acts to ensure that, once the target wild mammal is found or emerges from cover, it is shot, or killed by a bird of prey or a dog".

So the duty on the person carrying out the pest control is to ensure that the mammal is killed one way or another.

Pest control is not like that. No matter how good a marksman may be, he or she cannot always guarantee that the quarry will be shot. Therefore, I suggest that the phrase "acts to ensure" should be replaced either by "seeks to ensure" or "takes reasonable steps to ensure". The phrase "takes reasonable steps" is one that the Minister for Environment and Rural Development will recognise is a feature of much legislation—I note that I have the minister's attention. The concept of reasonable care is one with which Scots law is well acquainted. However, the task of ensuring that something happens is plainly a hurdle too high. My amendments 40, 49 and 50 are meant to be helpful.

In conclusion, I will make a serious point. If it is impossible, as I suggest, to guarantee success in pest control activities, those who are engaged in those activities will not be covered by the exception. If they are not covered by the exception, they will be committing a crime if they shoot and miss.

Allan Wilson (Labour, Cunninghame North)

The Executive has no strong view on this group of amendments. Alex Fergusson's amendment 8 is an alternative to Fergus Ewing's amendment 40.

Amendment 9 would fall if amendment 8 were agreed to. If we were to express a preference as to the approach that is adopted, we would prefer amendment 8. Similarly, between amendments 49 and 50, the Executive's preference would be for the approach that is set out in amendment 50.

Murray Tosh (Conservative, South of Scotland)

I understand that, in this instance, Mr Muldoon has ceded to Pauline McNeill his right to reply.

Pauline McNeill (Labour, Glasgow Kelvin)

The effect of the amendments would be to dilute the requirement that was established by the Rural Development Committee, which was for humaneness in pest control. As the bill stands, a person who is stalking or is flushing a quarry with dogs has to act to ensure that, once a wild mammal has been driven from cover, the mammal is shot or killed by a bird of prey. By changing the wording of the bill the amendments would have the effect of allowing a delay. That cannot be justified if the principle is to be adhered to that the mammal is to be killed humanely. The person doing so has to act speedily and deliberately.

To date, the Parliament has accepted the principle that it wants to move in the direction of more humaneness and not less. Terrier work is one of the most contentious and potentially the most dangerous activity in the world of pest control. The Rural Development Committee decided that those who send dogs underground should act to ensure that flushed foxes are shot as soon as possible.

That decision means that everyone should follow the practice that gamekeepers adopt, which is to put nets over the entrances to a fox earth to ensure that a fox can be shot. Instead of accepting that best practice, amendment 50 would allow people to do whatever they want, subject to what a court might say at a later date.

A court might hold it unreasonable to expect someone using a dog underground to net the entrances to the fox earth, if that person does not own a net. That would mean that, if a person left their net at home, they might not have to ensure that the fox met a rapid death. The person could instead chase the fleeing fox with their hounds.

If we create a loophole, it will be exploited. Amendment 50 is set out deliberately to push the boundaries of what can be allowed. We should keep tight the requirement for humaneness. We should reject all the amendments in the group.

Murray Tosh (Conservative, South of Scotland)

I call Alex Fergusson to respond and to indicate whether he will press or withdraw amendment 8.

Alex Fergusson (Conservative, South of Scotland)

As Fergus Ewing made clear, and as I tried to explain, the amendments are not intended to dilute anything. They are designed to tighten up the wording of the bill. It is sad that no one listened to what Fergus Ewing or I said. If they had done so, they might have realised what the amendments are about. There is nothing more to be said. Fergus Ewing said it very well and I said it more briefly but—I think—equally well.

The minister has announced his intention to support amendment 8 and—I think—to support amendments 49 and 50. I commend the amendments to the chamber. For the sake of keeping to time, I have nothing further to add other than recommending to members that they listen to the Executive on this issue.

Allan Wilson (Labour, Cunninghame North)

For the record, I point out that we have expressed a preference for amendment 8 over amendment 40 and for amendment 50 over amendment 49.

Murray Tosh (Conservative, South of Scotland)

The question is, that amendment 8 be agreed to. Are we agreed?

Murray Tosh (Conservative, South of Scotland)

There will be a division. As it is the first division in the grouping, it will be a two-minute division.

Murray Tosh (Conservative, South of Scotland)

The result of the division is: For 51, Against 70, Abstentions 0.

Amendment 8 disagreed to.

Amendment 40 not moved.

Amendment 9 moved—[Alex Fergusson].

Murray Tosh (Conservative, South of Scotland)

The question is, that amendment 9 be agreed to. Are we agreed?

Murray Tosh (Conservative, South of Scotland)

There will be a division.

Murray Tosh (Conservative, South of Scotland)

The result of the division is: For 19, Against 101, Abstentions 1.

Amendment 9 disagreed to.

Amendment 41 moved—[Dr Sylvia Jackson].

Murray Tosh (Conservative, South of Scotland)

The question is, that amendment 41 be agreed to. Are we agreed?

Murray Tosh (Conservative, South of Scotland)

There will be a division.

Because in the previous group the first two amendments were not moved and the third amendment was withdrawn and because there were no divisions in that group, amendment 41 becomes the lead amendment in the group. As a result, there will be a two-minute division. We have to observe all these proprieties.

Murray Tosh (Conservative, South of Scotland)

The result of the division is: For 72, Against 49, Abstentions 2.

Amendment 41 agreed to.

Murray Tosh (Conservative, South of Scotland)

Amendment 94 is pre-empted.

Amendment 95 not moved.

Amendment 10 moved—[Alex Fergusson].

Murray Tosh (Conservative, South of Scotland)

The question is, that amendment 10 be agreed to. Are we agreed?

Murray Tosh (Conservative, South of Scotland)

There will be a division.

Murray Tosh (Conservative, South of Scotland)

The result of the division is: For 19, Against 102, Abstentions 0.

Amendment 10 disagreed to.

Murray Tosh (Conservative, South of Scotland)

I call amendment 42, in the name of Scott Barrie, which is grouped with amendment 43. If amendment 42 is agreed to, amendment 43 is pre-empted.

Scott Barrie (Labour, Dunfermline West)

From time to time in the course of the debate on the bill, Mike Watson and those of us who support the bill have been accused of a number of things. The Daily Telegraph editorial accused me of indulging in class warfare. Others were accused of acting like Joseph Stalin or Robert Mugabe. All of us have been accused of arguing our case on the basis of sheer prejudice. The majority of those accusations are untrue.

Like other sections that we will debate today, section 1A(1A), which I wish to remove from the bill, allows fox baiting, hare coursing and mounted hunting, which are in direct contravention of what Parliament voted for at stage 1. That subsection will allow the use of lurchers to kill hares and foxes. Let us examine the science of that.

First, let us consider hare coursing. The hare is forced to run for its life as two greyhounds or lurchers chase it across an open field for the entertainment of spectators. We know what happens when lurchers meet hares because of the openness of the hare coursing community—full credit to it. That community allowed the Universities Federation for Animal Welfare to perform 53 post-mortem examinations of hares that were killed in hare-coursing events. The federation found that not one of the 53 hares had been killed by a bite to the back of the neck. Many had not died until the dog handler had caught up with the dog, taken the hare from it and killed the hare with his bare hands. The science is clear: lurchers cannot kill hares humanely.

Secondly, let us consider the fox. In the context of a contest between wild mammals and lurchers, how does the fox compare to the hare? For a start, it is bigger, it has sharper teeth and claws and its ability to fight the dog is a little greater than that of the hare. In September, Parliament decided that it wanted to abolish hare coursing. Section 1A(1A) of the bill, as amended by the Rural Development Committee, will permit something far worse. Let us call it fox coursing. Many members will have seen the film that was circulated by the Scottish Campaign Against Hunting with Dogs, which demonstrates clearly that lurchers are unable humanely to kill foxes. Therefore, all sections of the bill that would permit lurchers to be set to kill should be removed.

Section 1A(1A) of the bill will allow any dog—from a lurcher to a collie to a Rottweiler—or even a pack of dogs, to be used to kill a mammal that has been shot at. Whether or not the mammal has been shot and wounded, the pack of dogs can be set on it. I argue that it is never necessary to set a single dog or a pack of dogs on a fox in order to kill it. An alternative is allowed for under the bill, which will enable pest control workers such as gamekeepers and hill packs to perform their roles effectively.

Let us examine what hill packs do. Paul Crofts, of the Scottish Hill Packs Association, gave evidence to the Rural Development Committee on 6 November. He said:

"If the fox is wounded, the dog is slipped immediately and, being faster than the fox, quickly catches and kills it."—[Official Report, Rural Development Committee, 6 November 2001; c 2346.]

We can argue about whether the kill is quick. My assessment—made after hearing the opinions of other people and not just that of Mr Crofts—is that that will not be the case often.

Crucially, under the terms of the bill, a lurcher could be used to catch a wounded fox. Section 3(1)(c), to which John Swinney has already referred, says that a dog can be used to locate a seriously injured mammal, provided that the mammal is

"killed as humanely as possible".

If the intention of the person using the lurcher is to locate the fox and catch the fox so that he can shoot it, the bill permits him to do that. If the dog is, perchance, a quicker killer, section 1A(1B) of the bill—which has also been referred to—says that the dog handler commits no offence if the dog kills the mammal. However, it would be wrong for the individual to slip the lurcher and stand back to watch the fight.

I support the need for pest control and I am happy for lurchers to be part of that process, but lurchers should be used for what nature designed them—to catch and stop a fox quickly. They should not be used to kill. Section 1A(1A) provides no extra protection for hill packs.

I move amendment 42.

Ross Finnie (Liberal Democrat, West of Scotland)

Amendment 43 is one of a series of technical amendments, which run throughout the bill. They all make changes to the text of the bill, deleting "contravene" and inserting "commit an offence under", and reflect a change in the wording of the offence provision in section 1(1). I hope that amendment 43 and similar amendments relating to the interpretation of the bill will be supported by Parliament.

Amendment 42, as Scott Barrie said, would remove some of the exemptions. It is obviously for members of Parliament to decide which exemptions they wish to be in the bill, and on whether the exemptions as they stand would render the bill unworkable. That is not our view, but it is for Parliament to debate that and to decide whether to revert to the position that was broadly agreed before stage 2.

Mike Rumbles (Liberal Democrat, West Aberdeenshire and Kincardine)

I am annoyed that I was not able to speak in the debate on the previous group of amendments.

Murray Tosh (Conservative, South of Scotland)

Please just speak to the amendments in the current group, Mr Rumbles.

Mike Rumbles (Liberal Democrat, West Aberdeenshire and Kincardine)

What I wanted to say about amendments in the previous group is linked with amendment 42. It is a pity that, thanks to amendment 41, in the name of Dr Sylvia Jackson, the words "or a dog" have been removed from section 1A. Now, all we have to rely on to maintain the work of the Scottish Gamekeeper's Association is section 1A(1A), which Scott Barrie and others are trying to remove.

I was appalled, to be frank, by Scott Barrie's speech. Section 1A(1A) has absolutely nothing whatever to do with fox baiting. Fox baiting is illegal. If he had listened to the debates in the Rural Development Committee, Scott Barrie would know that we spent two years going over that. I am appalled to hear such speeches from members.

The vote on amendment 42 is one of the most important votes that we will take this afternoon. If we vote to support amendment 42, we undermine the work of Scottish gamekeepers. All Tricia Marwick's talk about working closely with Scottish gamekeepers seems to be a load of tosh.

There will be arguments that section 1A(1B) is sufficient, but it is not. Section 1A(1B) refers to a dog killing

"wild mammals in the course of those activities"

by accidental means, in effect.

It is important that we keep section 1A(1A) in the bill. What is the section about? It says that when

"a person is using a dog in connection with pest control activities and intends to kill wild mammals in the course of those activities only by lawful means, that person does not contravene section 1(1) by using the dog to kill a wild mammal which has been flushed to a gun and has escaped without being shot, or been shot but not killed."

Amendment 42 would add cruelty to the bill—something that the Rural Development Committee has been striving to remove from the bill. I urge members not to support amendment 42.

Alasdair Morgan (Scottish National Party, Galloway and Upper Nithsdale)

I think that most members agree with the bill's main intentions and want to maintain legitimate methods of pest control. It is interesting that those who are in favour of the bill and those who are against it exaggerate the effects of the bill or amendments to it to suit their ends. I hope that I will not do that. David Mundell argued that the bill would have all sorts of pernicious consequences and Scott Barrie over-egged the pudding in his description of the effects of section 1A.

The problem is that the hill packs are faced with serious problems because of agreement to amendment 41 and amendment 94's falling. In examining the rest of the bill, I am not convinced that hill packs will be able to continue their activities as effectively as they currently do. Certainly, no member has explained how they will be able to do that.

I agree happily that section 1A(1A) is not the most satisfactory method of allowing hill packs to continue their activities. However, previous amendments that would have been better have been rejected and I suspect that this is almost the final chance to allow legitimate pest control. I would be interested to hear how opponents of the section will allow such methods of pest control to continue. My perception is that, if we accept the amendment, they will not.

Murray Tosh (Conservative, South of Scotland)

Mr Muldoon, have you waived your right to comment further or do you want to speak?