BY THE time we get to Wednesday there will be many, many people in Scotland glad to see the fox-hunting debate disappear over the horizon. Who can blame them? For the last two years it has plagued the political agenda in the Scottish parliament. Fox fatigue has well and truly set in and even though the final parliamentary vote on the Protection of Wild Mammals (Scotland) Bill will not be the end of the matter, most politicians will be delighted to see the back of it.
The debate and vote on Wednesday will be the last chance for our politicians to unleash great torrents of rhetoric on the subject, but we must earnestly hope they also realise that it is not just the future of fox-hunting that will be at stake - but
the entire reputation of the Scottish parliament as a legislature. The decisions of MSPs on Wednesday will have a crucial bearing on how new laws will be passed in Scotland in future.
Set aside the arguments for and against hunting. Most people have an opinion one way or another and MSPs are no different in that respect. However, they are very different when it comes to casting a vote in parliament, because for the first time the Scottish parliament will be deciding on whether to create a new criminal offence. It is a responsibility not to be taken lightly, but time and again in Britain we have seen bad law being made with invariably disastrous consequences.
Bad law comes in many shapes and sizes. Poor drafting is often the culprit. The badly drafted law may miss its target or, which is worse, may catch a wider range of activities than parliament ever intended. Being open to different interpretations, it creates uncertainty. The opportunist prosecutor will exploit the legitimate intentions of the legislature. And the courts are left to deal with the hard cases where the law was never meant to apply.
It is in the same dangerous direction that the Scottish parliament is grinding its way with the current hunting Bill. Such is the state of this Bill that it is hard to believe that it ever got this far. This is not a view confined to one side or the other. All shades of political and legal opinion believe that, for one reason or another, it is a legislative mess. More worryingly, it is hard to predict how this legislation is to be interpreted and enforced should a majority of MSPs give it their blessing.
We have been here before. We all remember some of the nonsensical prosecutions taken under the Dangerous Dogs Act. Then there was the so-called "weights and measures" legislation. We were assured that the legislation was designed with the consumer in mind and not for the expensive and unnecessary prosecution of greengrocers trying to make a living. Yet within months we saw the full force of a sour council brought to bear on one poor devil who dared to continue to trade in pounds and ounces.
As a lawyer, I am confused by the Protection of Wild Mammals (Scotland) Bill; as a citizen, my confusion turns to real anxiety. As legislators, MSPs should for a moment put to one side the question whether they are for or against hunting. They should consider instead whether the Bill catches those activities it is designed to catch and, more particularly, whether it allows the continuance of those activities which parliament does not intend to ban.
In this instance, this Bill does neither. But then, with a Bill which starts with a blanket ban and then seeks to qualify it by a long list of exceptions, it was never going to be easy.
As far as the public is concerned, parliament has decided to outlaw "mounted hunting", hare coursing and fox baiting. However, in committee the Bill has been amended with the intention of exempting the use of dogs in pest control - for example the use of a pack of dogs to flush foxes to waiting guns, or the use of terrier dogs to flush or bolt foxes from underground locations.
And thereby hangs the problem. In attempting to meet the concerns of Scotland’s gamekeepers and pest controllers, while honouring the principles of the Bill, the legislation falls dismally short of its objectives. In its evidence to the Rural Development Committee, the Scottish Hill Packs Association argued forcibly that their dogs kill a proportion of foxes prior to the gunmen taking a shot. According to the Bill as it is, that would be regarded in law as an "intended" activity and more than purely incidental. I would support the view that a prosecution of a gun pack in this instance could be successful.
If I were a gamekeeper, I would be particularly perturbed by the wording of the exemptions that relate to them. According to the Bill, I could use my dog to flush a fox from below ground if I act "to ensure" that it is shot as soon as possible. Should I fail to shoot the fox, am I guilty of an offence? God help us. Under this section, no man could safely use a terrier, for whatever motive, if a chance existed that the fox might escape.
Gamekeepers and shooters must also be wary of another exception which attempts to exclude gundogs and normal shooting practice from this Bill. Should the dog pursue a wild mammal, which its owner is unwilling to shoot, then an offence may have been committed. And woe betide him if, intending to shoot it, he misses.
Should any of these offences be committed on land owned by companies or partnerships, then directors and partners can expect a knock on the door from the local police, not because they had connived or consented in the offence, but because they may have been negligent.
Parliament remains undecided on the issue of compensation. The Scottish executive has declared its opposition to the principle, although many MSPs remain uneasy. The inevitable consequence of the current vagaries of the Bill, if enacted, would be a potential compensation claim, not to say legal challenge, from a much wider section of the rural population than is presently contemplated. Gamekeepers, pest controllers, landholders and associated businesses may well have good reason to join the queue alongside huntsmen and women.
The irony of this Bill is that in legal terms everyone loses. Passed as it is, there would seem on one view a very real chance that "mounted hunting" would be just one small part of a wide range of rural activities vulnerable to prosecution, a situation that MSPs have striven to avoid.
A wide discretion would inevitably lie with the authorities as to which activities they would prosecute. The potential compensation bill (and embarrassment factor) could be colossal and yet a good deal of killing and wounding of wild mammals could continue. But another view is held by supporters of the Bill, who fear that the exceptions for gun packs could also result in the Bill failing to eliminate "mounted hunting" at all, as nowhere in the Bill is there a reference to horses or gatherings. As presently drafted, the Bill would appear to outlaw both or neither. Either outcome could only lead to the ridicule of parliament.
Given the nature of the issue, if a law is passed that allows either lobby a glimpse of light, then parliament, the police and the judiciary will face some difficult times. It will not be the police, of course, but private citizens, some of whom are passionate activists with an eye for opportunity, who will "work the system".
Parliament can still unravel this mess, but Wednesday will be its last chance.
Angus Glennie is a Queen’s Counsel who practises at the Scottish and English bars.
The full article contains 1322 words and appears in The Scotsman newspaper.
