Hunting with Dogs (Scotland) Act 2023 - What it means for those using dogs for wildlife management

Following the passing of the Hunting with Dogs (Scotland) Act, the Countryside Alliance has compiled a Q&A to explain what it means for those using dogs in wildlife management.

When was the Hunting with Dogs (Scotland) Act passed?
The new law completed its parliamentary stages on Tuesday 24 January 2023.

When does the new law come into force?
The precise date on which the new law comes into force has not been decided. Scottish Ministers must bring forward regulations to bring the Act into force. It is expected that this will take place in the summer/autumn of 2023.

What does this mean for the Protection of Wild Mammals (Scotland) Act 2002?
The new Act, once it comes into force, will repeal the 2002 Act. Until the new Act is brought into force, the 2002 Act continues to apply in Scotland. There is no need to change immediately the way in which dogs are currently used.

What will change when the Hunting with Dogs (Scotland) Act comes into force?
It will no longer be legal to use more than two dogs to flush to guns unless you have a licence if you are flushing to prevent serious damage to livestock etc, or for an environmental benefit as part of a scheme or plan. The new law also includes rabbits but not rats and mice. It will be therefore be unlawful to use dogs to kill rabbits but dogs can still be used for rats and mice. If dogs are being used in connection with rough shooting, rather than flushing to protect livestock, crops etc or for an environmental benefit, where the quarry might be birds and wild mammals, then if more than two dogs are involved in the activity, they must not be allowed to come together to form a pack of more than two dogs.

Can I flush with two dogs to guns under the new law?
Yes – so long as it is for one of the purposes set out in the Act. There are two distinct sets of purposes and your flushing must be for one of these purposes. The first is for preventing serious damage to livestock, woodland or crops, or preventing the spread of disease, or protecting human health. The second is for what is classed as "environmental benefit" and must be undertaken as part of a "scheme or plan" for preserving, protecting or restoring a particular species (which may include controlling the number of a species for its welfare) for environmental benefit, preserving, protecting or restoring the diversity of animal or plant life, or eradicating an invasive non-native species of wild mammal from an area. In addition to flushing for a lawful purpose, the other conditions for the activity to remain lawful must be met, such as having landowner's permission. The conditions set out in the Act are broadly the same as in the 2002 Act but anyone flushing under the new law must familiarise themselves with the purposes and conditions and be clear as to what they are doing, for what purpose and ensure they are acting in accordance with the other conditions.

Can I still use more than two dogs to flush to guns under the new law?
Yes – But only if you have a licence to do so where you are flushing above ground to prevent serious damage to livestock, crops etc, or for an environmental benefit as part pf a plan or scheme. There is a specific exemption for shooting, stalking and falconry where these are "for sport" but if more than two dogs are involved one of these activities, they must not be allowed to come together to form a pack of more than two dogs.

Can I apply for a licence now?
No – The new licensing regime is not expected to be in place until April/May this year, when guidance will be issued setting out the details of the new licensing regime. The guidance will be worked out in consultation with stakeholders, including the Scottish Countryside Alliance.

What are the two licensing regimes for using more than two dogs?
Licences can only be granted for the purposes set out in the Act, which are the same as for someone using two dogs to flush to guns. As there are two sets of purposes, so there are two licensing systems under the Act. The first allows a licence for the purpose of: preventing serious damage to livestock, woodland or crops, or preventing the spread of disease, or protecting human health. The second is for what is classed as "environmental benefit" and is undertaken as part of a "scheme or plan" for preserving, protecting or restoring a particular species (which may include controlling the number of a species for its welfare) for environmental benefit, preserving, protecting or restoring the diversity of animal or plant life, or eradicating an invasive non-native species of wild mammal from an area.

For a licence to protect livestock etc, the licensing authority (NatureScot) may only grant a licence if it is "satisfied that there is no other solution which would be effective in achieving the purpose" - eg. protecting livestock. Licences will need to specify the area to which they apply, set a minimum number of guns that are required and the maximum number of dogs that can be used. A licence can be granted for up to 14 days, to be used in a six-month period.

For a licence for "environmental benefit" the licensing authority (NatureScot) must be satisfied that the use of more than two dogs "will contribute towards a significant or long-term environmental benefit" and "that there is no other solution which would be effective in achieving the purpose" – eg. preserving, protecting or restoring a particular species etc. The activity must also be part of a "scheme or plan" the meaning of which will be clarified in guidance. However, the Minister has been clear that a "scheme or plan" includes a design, plan or programme of action. Licences will need to specify the area to which they apply, set a minimum number of guns that are required and the maximum number of dogs that can be used. A licence can be granted for up to two years to be used in a consecutive two-year period.

Who will administer these licences?
NatureScot will be responsible for issuing licences. They will also be publishing guidance for those wishing to apply to use more than two dogs to flush to guns. This will clarify who can apply, what should be included in the application and any evidence that will need to be provided. This is similar to other wildlife licensing regimes in Scotland.

Who can apply for a licence?
This has yet to be clarified. A licence can be granted to a person (which is not just an individual but can include a company or other legal entity etc) or to a category of persons. While there will always need to be a named person on the licence, the Minister repeatedly made clear that a licence could be granted to a group of persons and apply across land in different ownerships. Moreover, work under a licence can be carried out by a person other than the licence holder. The person undertaking the activity will be the person responsible for compliance with the terms of the licence. It may also be possible to licence a business whose activity is to provide a pest control service, although NatureScot will still need to be satisfied that there is no other effective solution for the area to which the licence applies.

How do I apply for a licence to protect livestock?
The guidance will set out the process and the evidence needed so that NatureScot can be satisfied there is no other effective solution. In applying you will need to demonstrate what other action has been or is being taken to prevent predation and why these alone are insufficient or impractical. The test is similar to that applied to other areas of wildlife licensing, such as for lethal control of pest birds. The Act recognises that action can be preventative and that serious damage does not have to have occurred before a licence can be granted.

How do I apply for a licence for environmental purposes, such as protecting other wildlife?
The guidance will set out the process and the evidence needed so that NatureScot can be satisfied there is no other effective solution and what counts as a "scheme or plan" and that the activity will "contribute towards a significant or long-term environmental benefit". Again, a licence may be granted to a person or category of persons. This could involve a licence covering land in more than one ownership.

What does the Act mean for the use of dogs below ground?
The Act allows only one dog to be used below ground and only in respect of foxes. The 2002 Act also included mink. The Act requires that once flushed, the fox is shot or killed by a bird of prey. There are also further conditions that must be complied with for use of a dog below ground to be lawful. The explanatory notes to the legislation also clarify what is intended by a dog below ground being "under control" recognising that flushing from below ground is different from above ground.

What does the Act mean for rough shooting?
The position of rough shooting where more than two dogs are involved remains unclear, especially where the intended quarry may be both birds and wild mammals. The Minister has promised guidance. The intention is that so long as the dogs do not form a pack then the fact that more than two dogs are present in the course of rough shooting does not automatically lead to an offence. The position of rough shooting remains unsatisfactory and the Scottish Countryside Alliance will be doing everything necessary to ensure that we have greater clarity in this area.

What about falconry?
The Act contains an explicit exception for falconry, subject to a two-dog limit. As with rough shooting, where more than two dogs are present in the course of falconry activity these must not come together to form a pack of more than two dogs. The use of a bird of prey as the means to kill flushed wild mammals is also lawful under the main exceptions in the Act. If dogs are not involved then neither the 2002 Act nor the new law apply.

Can I still use dogs to control rabbits?
The new law now also covers rabbits, unlike the 2002 Act. This means that while two dogs, or more than two dogs under licence, may still be used to search for and flush rabbits for a legitimate purpose such as "preventing serious damage to livestock, woodland or crops" any rabbits flushed must now be shot dead or killed by a bird of prey as soon as reasonably possible. If in that process the rabbit is injured then reasonable steps must be taken "to kill it in a way (other than by using a dog) that causes it the minimum possible suffering". This does not prevent a dog being used to find the injured rabbit to be shot or despatched by hand. If a dog is to be used below ground to flush a rabbit, then only one dog may be used subject to the additional conditions in section 5 of the Act. Again, the rabbit must be shot or killed by a bird of prey and the same requirement to follow up any rabbits injured applies as with flushing above ground.

Please note:
Further advice will be made available as the guidance from NatureScot and the Scottish Government is developed and the Scottish Countryside Alliance, working with other stakeholders, will be engaged in every stage of that process. This information will be updated as further details become available so please refer to www.countryside-alliance.org

If you have any questions then please contact:

• Jake Swindells, Director of Scottish Countryside Alliance - [email protected]
• James Legge, Director of Public Affairs - [email protected]