 Fy that of the committee meeting, the sixth item of business on our agenda today, is to hear evidence on the draft pollution prevention and control Scotland amendment Regulations 2017. May I welcome the Cabinet Secretary for Environment, Climate Change and Land Reform and Andrew Taylor, the Air Quality Policy Manager for the Scottish Governments. Government, I refer members to the papers, and can I invite any questions from members? Do you want me to ask? fragrance. I would just like to highlight the position that I understand is the case for Scottish ministers and that they are able to make the SSI more robust if it relates to air quality ac fel ialen gwrth dag Class资 orio, ac mae gennym o groesul ôl annoqe gennym Awr. Ar gyfer y rh� це i gyfnodau bodベ realisech gyda caerdyddiedag i fod mwylig dda hwn creodel mewn gwilbul. Mae Gerllner yn Moffawr i chi, wir pequellorol a rôl defin Hetr Nol, mae gan mewn gweldion trafodaeth ein cyllidydd mewn gwتى y myll Yamzejr, maeexpl o'r nu ddechrau chynnynddo wedi'r ei defnyddel i'ch lleoliad mewn gwât eich 48 oChardydd ac eich gyda chi'n amser mawr gwument совершенно digon bethHEA will have to change technology and or adapt technology, but I wonder if there was any comments on on that as well? Not really. I mean, from my perspective, these are very technical as I said they're transposing a European directive and in fact they don't apply to Y niferfa o generwyrdach i'n Scotland, rwy'n credu cynlluniau siaradau yn 2030. Rwy'n credu cymhlyn yn gwahol i UK. Rwy'n credu cymhlyn, a'r 2029 dynod, mae dbuddol yn gwahol wedi cael ei meygawr gwlad neidol. Cartwall is a framework that is the UK-wide framework. We are putting this SI forward just now and there will be changes next year because we are watching what is happening with the English equivalentsods, saying having been brought in are already being changed. There didn't seem to be much point us going now if we were simply going to have to change Felly, we are fitting into a UK-wide framework on this. I should have perhaps referred to where I had found the information about the possibility for Scottish ministers to make it more robust. That is actually in the Scottish Government on the explanatory note, which is annex A in our briefings. It says, under regulation 17, if I may convener, just read out that sentence, that the amendments require that when preparing an air quality plan, Scottish ministers must consider whether to include measures imposing lower emission limit values for MCPs than those set out in the medium combustion plant directive, if that would make an improvement to air quality. We did have evidence last week in our committee about background air quality and concerns about that. I was simply highlighting that to you, cabinet secretary. Sorry not to have given the detail when I first asked the question. As I indicated, we are kind of regarding these as fairly technical changes to just capture generators that are not actually currently captured by anything to make sure that we are not getting left behind. This will make environmental benefits. It will help the UK to meet more stringent targets, but, from our perspective, it is not a huge change. There are some aspects of it that currently we do not have generators of the equivalent in Scotland. One of the things that we have to watch out for is that we do not open up a loophole for them to come in, which is why we are looking at 2018 again for more changes. From our perspective, we are looking at that purely as a fairly technical exercise to make this transposition. Claudia Beamish highlighted a wider issue, and perhaps you could write back to the committee on those wider points when it is appropriate to do so. I do not know whether Andrew Whittle wants to add anything, but, from our perspective, as I indicated, we are seeing this as a technical transposition rather than looking at that very much wider aspect. There are some issues contained within it, which, yes, I have questioned, which is the issue about the diesel generators and the concern that there might be that we would see an increase in those that we would not want to see for obvious reasons. However, those are not a big issue in Scotland at the moment. From the perspective of where we are just now, from our perspective, although it is part of the broad spectrum of air pollution regulations, it is not a major one. The regulations allow, potentially, for tighter emissions limits to be applied. Under those regulations, all medium combustion plants will have to have an operating permit from SEPA, and it may well be the case that SEPA may well decide in certain circumstances that a permit does justify tighter air quality standards, and that will be considered on a case-by-case basis. I simply wanted to highlight the issue because of the very serious concern of this committee about air pollution, and I have done that. It is probably a question for Andrew Taylor, rather than the cabinet secretary. Just on the 1 to 5 megawatts, is it not the case that a large proportion of such facilities will actually be stand-by-generators for hospitals, computer centres and so on, which are used pretty infrequently, and therefore have a very long life? Therefore, it would be disproportionately economically bad news to replace them early in their life cycle, and perhaps that would help to justify perhaps some of the dates associated with the smaller generators that are used very little. Compliance costs are going to fall disproportionately on smaller operators, which is one reason for the longer leading time. There are also a number of flexibilities in the directive that we have to the most part employed in the regulations, and one of those is that plants operating for less than 500 hours per year on a five-year rolling average are exempt from the requirements because applying emissions limit values in those cases would not be proportionate, given their limited emissions reductions. That would be achieved at the associated costs for small operators. For small businesses operating plants at the lower end of the requirements between 1 and 5, they would end up with annual compliance and administrative costs between zero and 2 per cent of gross operating surpluses, and that is for small businesses. There are costs involved in that, and trying to help to balance out that cost will be one of the reasons why they long lead time for total compliance. However, as I indicated, we are trying to keep within our UK-wide framework on this, and we are going at a slightly different time for technical reasons, but the idea is that next year it will all be in line across the UK. Perhaps in due course, as I said when it is appropriate, you could update the committee on the more general aspects of it. Any other members? John Scott? Thank you, convener. My question is essentially around that. The impact assessment estimates annual costs of £3.8 million. What is the industry view of those costs and the additional cost burdens that I was going to ask particularly about small businesses? Perhaps you have just answered my question. I have answered, yes. There is a total annual cost in 2030. The £3.8 million is the 2030 cost, so that would include compliance, administration and monitoring. However, of course, there are offset benefits, although the benefits will not necessarily accrue to the individual businesses, but that is where the broader issue comes in, because the offset benefits are environmental and health and relate to reduced emissions. That is one of the reasons why I suspect that there has been fairly long lead time for this. Any other members have questions? We move to agenda item 7, which is consideration of the motion, which is S5M-08384, that the Environment, Climate Change and Land Reform Committee recommends that the Pollution Prevention and Control Scotland amendment regulations 2017 draft be approved. Cabinet Secretary, do you wish to add anything to that? No. Okay. Do you wish to do that, then move the motion? I will move the motion. Thank you. Any members wish to speak to that? No. I put the question on the motion. The question is that motion S5M-08384 and the name of Rosanna Cunningham be approved. Are we all agreed? Yes. We are agreed. I ask the committee to delegate the signing off for the subordinate legislation report to myself. Thank you to the cabinet secretary and our official for their attendance, and we will have a brief suspension to allow the changes in officials. Good to go. The committee agenda item 8 is the Wild Animals and Travelling Circuses Scotland Bill stage 2. I again welcome the cabinet secretary for the Environment, Climate Change and Land Reform and her officials, Andrew Vos, the veterinary head of animal welfare, the bill team leader for the Scottish Government, Beverly Williams, the bill team manager from the animal welfare team, Angela Lawson, the solicitor of the Scottish Government legal directorate and David McLeish parliamentary council for the Scottish Government. Members should note that officials are not allowed to speak on the record in these proceedings. As this is the first stage 2 of the current session for this committee, I wonder if members would welcome my laying out the process for them on the record. I apologise to those who have been through this before. Everyone should have with them a copy of the bill as introduced, the marshal list of amendments that sets out the amendments in the order that they will be disposed of and the groupings. There will be one debate for each of the four groups of amendments. I will call the member who lodged the first amendment in the group to speak to you and move that amendment and to speak to all other amendments in the group. I will then call any other members who have lodged amendments in the group to speak to their amendments as well as any other in the group, but not at that time to move their amendments. Members who have not lodged amendments in the group but who wish to speak should indicate me to myself or the clerks that they wish to do so. If the cabinet secretary has not already spoken on the group, I will invite her to contribute to the debate just before we move to the winding-up speech. There might be times when I allow a little more flexibility for members to come back on points of clarity that arose from the debate. The debate in each group will be concluded by myself inviting the member who moved the first amendment in the group to wind up. Following the debate on the group, I will check whether the member who moved the first amendment in the group wishes to press it to a vote or to withdraw. If the member wishes to press it, I will put the question on the amendment. If the member wishes to withdraw it, I will check whether any other member objects. If a member objects, the amendment is not withdrawn, the committee will immediately move to vote on it. If any member does not wish to move their amendment when it is called, they should say clearly not moved, and any other member present may move such an amendment. However, if no one moves the amendment, I will immediately call the next amendment on the marshaled list. Only committee members are allowed to vote. Voting on any division is by a show of hands, and it is important that members keep their hands clearly raised until the clerks have recorded the vote. The committee is required also to indicate formally that it is considered and agreed to at each section of the bill, so I will put a question on each section at the appropriate point. I hope that that is clear to everyone. We now move to the procedure, and I call amendment 4 in the name of David Stewart in a group of its own. In regards to wild animals in travel and circuses, Bill item 8. I refer members to my register of interests. I am the cross-party convener of the showman's guild Scotland and an honorary member of the showman's guild Scotland. Mr Lart, I am missing me not to give you that opportunity. Do any other members have interests to declare, John Scott? I should declare an interest as an honorary member of the BVA. I should also declare an interest as an honorary member of the BVA. Everyone else is satisfied? I call amendment 4 in the name of David Stewart in a group of its own. David Stewart to move and speak to amendment 4. As members know, the bill's long title is an act of the Scottish Parliament to make it an offence to use wild animals in travelling circuses, and the expans to notes refer to the offence of using a wild animal in a travelling circus. One kind, however, notes that section 11, as originally drafted, does not refer to using a wild animal in a travelling circus, but rather to causing or permitting an animal to be used. It might be argued that using actually includes causing or permitting use, but it would be helpful to make that much clearer on the face of the bill. Otherwise, it is conceivable that a sole operator who trains and performs with his animals could argue that he was not causing or permitting use as no other person was involved. Amendment 4, in my view, adds useful clarity to the bill and is consistent with the drafting of other instruments such as the UK Government's Wild Animals in Circuses Bill, published by DEFRA in 2013, and the new Irish regulations prohibiting the use of wild animals in circuses, which comes into force on 1 January 2018, which states that a person shall not use or cause or permit another person to use a wild animal in a circus. I believe that this is a reasonable and uncontroversial amendment, and therefore I move amendment 4, convener. Thank you, Mr Stewart. Do any other members wish to comment? Mr Scott. I would just support what Mr Stewart has said. I think that it is a reasonable amendment, and one that we should certainly consider. Thank you. Cabinet Secretary. Can I thank David Stewart for lodging his amendment? The effect of which would be to make it clearer that a circus operator who uses a wild animal in a travelling circus is guilty of the offence. The provision in section 1 of the bill, as introduced, would have included this situation, since circus operators directly using a wild animal are effectively causing its use. However, we do think that amendment 4 removes any doubt, and therefore we are prepared to support it. Thank you, cabinet secretary. David Stewart, to wind up and press all the throws. I appreciate support from members and the cabinet secretary, and I press the amendment 4. Okay, thank you. The question is that amendment 4 be agreed to. Are we all agreed? We are agreed. We now move to call amendment 5 in the name of the cabinet secretary group, with amendments 6 and 7. Cabinet secretary, to move amendment 5 and speak to all amendments in the group. Thank you, convener. I just get into the start of a slightly longer speaking note for this one. I move amendment 5 and indeed will speak to amendments 6 and 7. If I could just take a minute to outline the thinking behind these amendments. The committee raised concerns in the stage 1 report regarding section 1 of the bill, as it relates to the effectiveness of the ban on the use of wild animals in travelling circuses in Scotland. In particular, they noted that the use of the word purpose in section 1 subsection 2 could be interpreted to mean that if a wild animal was transported with no intended use in mind but was subsequently used in a travelling circus, no offence would have been committed. I thank the committee for their close scrutiny of section 1. The intended effect of section 1 is a ban on the use of wild animals in a travelling circus. The purpose, intention or manner of transport of the travelling circus in transporting a wild animal shouldn't be the focus of the offence. We certainly want to avoid any loophole, for example, where a circus could claim that a wild animal is a pet and so was not transported specifically for the purpose of use. We also don't wish to inadvertently capture within the offence movement of wild animals which does not mirror the movement of the travelling circus, for example movement for veterinary treatment. My officials have considered the drafting further and I have lodged those amendments to address the issues raised. Those amendments to section 1 remove the reliance of the offence on the intention or purpose of the transportation, removing the requirement to establish intent. Adjust the wording to refer to an animal that is transported to a place where it is used, thus establishing a factual situation that may be verified more easily. Adjust the wording to tie the offence to a particular rather than generic travelling circus by providing that the offence may be committed in relation to a travelling circus and making further changes so that references to a travelling circus become the travelling circus. Myrra, the new drafting proposed on the definition of travelling circus in the Scottish Government amendment 8, which comes later and which we are presuming will be agreeable, so that the offence is only committed if the wild animal is transported whether regularly or irregularly from one place to another. I think that those changes fully address the concerns of the committee regarding the effect of the offence. Stuart Stevenson, I wonder if the cabinet secretary could confirm that in changing the wording from a travelling circus to the travelling circus from generalities to specificity, that has not introduced the danger that someone transporting in one context but for use in another context, we are not mismatch disconnecting the transport from the circus in a way that defeats the objectives that we have. That is not our view. Those amendments have been drafted to try and ensure that, in a sense, we did not capture the wrong things or exclude other things. The new drafting of that tightens that up and ensures that parallel transportation does not get caught in a situation in which we are talking about a travelling circus. Remember that this is about offences and about committing offences, so that clarity makes that a lot more straightforward when that is being looked at in terms of any offence. Do you have any other member's wish to contribute? Cabinet secretary, to wind up? I do not think that there is really anything extra that I need to add other than just to reiterate that this is to tighten the whole thing up so that the nature of the offence becomes even more clear. Therefore, the question is that amendment 5 be agreed to. Are we all agreed? We are agreed. I call amendment 6 in the name of the cabinet secretary. The question is that amendment 6 be agreed to. Are we all agreed? We are agreed. I call amendment 7 in the name of the cabinet secretary. Already debated with amendment 5, cabinet secretary, to move. The question is that amendment 7 be agreed to. Are we all agreed? We are agreed. The question now is that section 1 be agreed to. Are we all agreed? We are agreed. I call amendment 1 in the name of John Scott, group with amendments 14, 15, 16, 2, 17, 18, 3, 20 and 12. John Scott, to move amendment 1 and speak to all amendments in the group. Thank you, convener, for the opportunity to speak to and move my amendments 1, 2 and 3 and to speak to the other amendments in the group. Amendment 1 and 2 seek to create a list of wild animals not to be used in travelling circuses. Amendment 1 details where lists of such wild animals might be found and seeks to place such information on the face of the bill. Amendment 2 would allow ministers by regulation to specify a species or a kind of animal, which is to be regarded as included or excluded from such a list, and the process of doing that would be by negative instrument. Amendment 3 is consequential to amendments 1 and 2, and all of those amendments respond to the view expressed in the committee report and during the stage 1 debate that a list of wild animals, as might perform in travelling circuses, should be placed on the face of the bill. Of course, those amendments will usefully enhance the bill in terms of clarity, but they can also be regarded as probing amendments 2. I welcome the fact that the cabinet secretary has brought forward amendment 12 in response to my amendments and Mark Ruskell's amendments 14, 15, 16, 17 and 18. I note Mark Ruskell's intentions to also create a list of domestic animals, which he likes, seeks to achieve the same objective as my list, but approaching the end point from a different direction. I also believe that Mr Ruskell's list, even at a cursory glance, has some omissions most notably reindeer, much discussed by the committee and, indeed, much in service at this time of year. Perhaps Mr Ruskell's list highlights the point made by the bill as drafted of the difficulty of providing exhaustive lists. Turning now to cabinet secretary's amendment 12, I welcome the Government's further consideration of the need for greater clarity. I look forward to the cabinet secretary's explanation of what additional clarity the amendment will provide. I also note the use of May in subsection 1 and 3, and I wonder if May should be left out and will be substituted to take matters forward. I look forward to the comments of others. Thank you, Mr Scott. Mark Ruskell to speak to amendment 14 and other amendments in the group. We have a definition of domestication within the bill, I think, so at the end of stage 1 we came to the conclusion that there were problems with this, that it was interpretable in different ways, particularly when you have wild animals that have come from captive breeding stock and have been tamed over a number of generations. It does create a loophole within the bill at the moment, a loophole that could see certain wild birds, reptiles and small mammals being used in circuses, even though they are wild species. The question in this group is about how we can close that loophole. I appreciate John Scott's amendment. I think that I initially was on the same page as you in terms of defining wild animals and creating a negative list. However, there are problems with that, and I think the definition that John Scott has provided results in significant omissions, including I gather raccoon dogs, which are increasingly used in performances and circuses. I would say that, in terms of the cabinet secretary's amendment, it is welcome on one level, but effectively it does not deal with this issue right now on the face of the bill. It says, let's put in a regulation-making power and we can use it at the Government's discretion when a particular problem arises. I think that we have time within the passage of this bill right now to get a much clearer definition, whether that is a list that does or does not include reindeer or raccoon dogs or whatever. Let's bottom that out at this point rather than leave it to the courts to decide, or for a future regulation, to have to be brought in at a later date as a result of a legal action. Essentially, I am bringing forward two options for the committee, both of which provide the clarity of a list of domestic animals. It is a positive list of domestic animals that could be used in circuses, so a much shorter list. This would be brought in before the bill was enforced and enacted. The first option is to provide that list. You can see that in the amendment and also a way of updating that list over time. That is amendments 14 and 20. This is a list that has been drawn up on the basis of the culture of how animals are used in circuses in this country and based on other countries' lists as well. It acknowledges that there are animals that have been used, which have a long history of use and breeding that are fundamentally altered from the wild type. The second option is to create a power so that a list could be brought forward. Again, I go a little further than the cabinet secretary here in suggesting that this needs to happen before the bill is implemented and we need that clarity. Whether it is a list that is on the face of the bill and approved at this point or whether it is a list that has to be generated before the bill is enforced, I think that that clarity is important. Cabinet secretary, you speak to amendment 12 and the other amendments in the group. If I could come to amendment 12 after I have spoken to the other amendments, I think that it might make more logical sense. Obviously, this is about the committee's concerns regarding clarity in the definition of a wild animal. I understand the recommendations of the committee about including a list. I understand the motivation behind why people would think that that is a good thing, but the definition in legislation often becomes incredibly problematic, which is why, in general terms, it does not happen. If I could thank the committee for their consideration of the issue and deal with the amendments. First, the group brought forward John Scott. The idea of referring to existing lists of wild animals under the Habitats Directive and the Dangerous Wild Animals Act 1976 could potentially help to find the kinds of wild animals that are and are not considered wild in terms of the act. He is taking a similar approach to mine in proposing to additionally provide a power for Scottish ministers to specify whether a species or a kind of animal is wild or not. However, as drafted, I rather fear that the approach taken by those three amendments would render the bill ineffective without extensive secondary legislation. The approach in its current form would automatically exclude any wild animals not considered a dangerous wild animal or of particular conservation importance in Europe. In particular, it would exclude foxes and raccoons, which are currently used in one particular circus. It would also exclude other animals that might be conceivably used, including woolly lemurs, tabarins, guanico and vaicuna, night monkeys and squirrel monkeys—all the different kinds of monkeys that are and can become popular in those sorts of circuses. Secondary legislation listing a wide range of animals would therefore indeed be required immediately if the act came into effect. However, it would be difficult to provide and keep up-to-date. It would have to be exhaustive, and it is very difficult to see how it could be an exhaustive list. It would have to include not just wild animals but hybrids that a travelling circus could possibly use. We would create constant problems, because we would have to constantly monitor that. If I could turn to Mark Ruskell's amendments, there is the other side of this particular coin. Mark Ruskell is trying to list the domesticated animals that can be used as opposed to the wild animals that can't be used. Listing domestic animals may seem simpler than listing wild animals, but it would still require debate and updates to legislation should the status of certain animals within the British islands change, not least since the offence would be triggered with the use of any animal not listed. Many of the animals listed in amendment 20 are quite clearly commonly domesticated animals, and there is little need to list them as those types of animals will already be exempt from the ban under section 22 of the bill. However, some of the animals included within the list in amendment 20 are not commonly domesticated and are what we would consider to be wild, for example, palace cats, sand cats and the Scottish wild cat. Furthermore, many commonly domesticated animals are missing from the list in amendment 20, including lamas and alpacas. They would be an example of changing culture around animals, because, I guess, 20 or 30 years ago you would not have regarded lamas and alpacas as commonly domesticated in the UK, but I think that most of us recognise now that they are. Also missing might be various small animals commonly kept as pets. If the list is not absolutely accurate, some travelling circus operators could conceivably be prosecuted for using a kind of animal that is indeed commonly domesticated in the British islands, while others might legally use what are in reality wild animals. In a sense, this comes back to the issue about lists. I do stand by my previous advice that a list of the kind of animals that should be considered by species, by subspecies and hybrids would not be practical. It would be difficult to ensure that it was exhaustive. Anything not on the list would remain legal to use, providing a way for travelling circuses to keep using wild animals by constantly adjusting the kind of animal that they use. There would be a requirement for frequent updates, with each update, doubtless, causing significant debate among stakeholders. I add to this advice my observation that listing domestic animals that are not to be covered by the ban simply gives rise to the same problems. It would be difficult to ensure that the list was exhaustive. Any wild animals inadvertently captured by the list would remain legal to use, and circus operators using clearly commonly domesticated animals that happen not to be caught by the list would then be open to prosecution. To summarise my views on amendments 1 to 3, I see no advantage in restricting the tried and tested meaning of wild animals on the face of the bill by referring to lists in other legislation, such as the Habitat Directive or the Dangerous Wild Animals Act 1976. In regard to amendments 14 to 18 and 20, I consider that the risks to law-abiding travelling circus operators would be too great if a list of domestic animals was adopted, ensuring that any such list was comprehensive and up-to-date would be critical and difficult, with potentially serious consequences if that was not achieved. Those examples illustrate quite clearly the dangers of trying to construct a list of animals that are or are not wild for the purposes of the bill and underlines why the definitions already in the bill provide what we consider to be the correct approach. If I can move on to amendment 12, I do understand the committee's concerns regarding the need for clarity in this matter. I fully accept that there may be occasional cases of genuine doubt as to whether a type of animal is of a kind commonly domesticated in the British islands or wild, since where a type of animal sits in these two categories is not fixed but can change over time, as I have indicated in particularly obvious examples of packers and llamas. I have therefore lodged amendment 12, which would provide Scottish ministers with a power to make regulations to include or exclude specific kinds of animals as wild animals for the purpose of the act. As I stated at the stage 1 debate, those regulations would be subject to the affirmative procedure, which is consistent with the procedure used for other animal welfare secondary legislation, and would allow full consideration of any future regulation by the committee. We would be using that power in the cases of genuine doubt. This approach would have the advantage of retaining the tried and tested definition of wild animal, currently used in the Animal Health and Welfare Scotland Act 2006 and its English equivalent the Zoo Licensing Act 1981 and the most recent welfare of wild animals in Travelling Circuses England regulations 2012, therefore keeping consistency. However, it would go further by allowing Scottish ministers to exclude or include specific kinds of animals as wild animals in a targeted manner to remove any doubt in particular cases where there is uncertainty. That amendment addresses the committee's concerns regarding definitions without bringing in the difficulty of the issues that would arise from the alternative approaches proposed. I respectfully ask John Scott and Mark Ruskell not to move or press their amendments, and I move amendment 12 and ask the committee to agree to that. Thank you very much, convener. I have come to this quite late, of course, but I have had an intensive weekend of study. The cabinet secretary has slightly preempted me, because I identified that I have llamas three miles from home, there are vacunas and alpacas ten miles from where I live, so those are species not covered in the lists that I think now might be regarded as commonly domesticated in the British Islands. I think, too, that there is a bigger issue perhaps in the sense of feral animals. For example, the dingo dog, now regarded as a wild dog in Australia, is, in fact, descended to and genetically linked to the dogs that are still here in the UK, so one would have an interesting debate as to whether a dingo imported into the UK was commonly domesticated, because genetically it might be a very close cousin. Of course, there are also things like the wild horses on Exmoor, which could be brought to Scotland, albeit that they are semi-domesticated in some ways. There are colonies of wild goats and wild sheep, and of course there are cats that go feral. There is a whole range of ambiguities. The cabinet secretary says that my experience is comprehensive but not total, and I have not yet met any Iwalibys, but one could even consider rabbits, which are actually domestic animals introduced by the Romans 2,000 years ago, which are now regarded by us as totally wild animals. The ambiguities associated with the production of lists, which of their very nature cannot be comprehensive in their coverage, but more fundamentally create the loopholes by exclusion from the list that could enable circuses to exploit the omissions from lists. I very much support what the cabinet secretary has said and the approach that she has taken, while absolutely understanding and sympathising with the underlying motivation of John Scott and Mark Ruskell, but in particular the amendment 20 that the cabinet secretary brings forward is that safety net for that which we cannot currently know and which we may only discover in the future if we are required to do. I agree with the comments that Stuart Stevenson just made and also the cabinet secretary. At the end of the day, I can see where Mark Ruskell and John Scott are coming from, but I think that a list is really going to set the whole thing back. Remember that we have 32 councils that have got to work this and 32 different council officers who also can have different varying views. I am reminded that there are some domesticated camels and there are also wild camels. We could go in through every species and say, oh, that's wild, well, that's domesticated. Before we know it, the list will be endless, the list will need to be reviewed and also we will have owners who will sit with a list and go, oh, I can have a circus with that animal because it ain't on the list. So, as far as I'm concerned, I think that a list is wrong and I certainly would not be supporting any of these amendments. Claudia Beamish Thank you, convener. This is indeed something that I find quite complicated if I'm open about it. I think lists often do have their dangers and while I was keen to support the possibility in John Scott's amendments of a list of wild animals in view of the need for a strong clarification, in view of what the cabinet secretary said, I do now have concerns about that. So, at stage 2, I wouldn't be wanting to support John Scott's position. I have had concerns right the way through about supporting an alternative list for domestic animals, which I think would make things further complicated. Although I understand the sentiment of it, and it is very important that we are as clear as possible, I'm not clear myself that Mark Ruskell's amendments would add something to clarification of who is and isn't a domestic animal. So, I won't be supporting at this stage. I think it may well be necessary to revisit lists, not on the face of the bill but the difficulty of changing them, but possibly after further clarification. I wouldn't rule out consideration at stage 3. At this stage, I would be keen to support the cabinet secretary's amendment 12, which I think does lead to further clarity. Mark Ruskell, do you want to come back? Yes, thank you convener for that opportunity. Listen carefully to what the cabinet secretary said. I would like some clarification over amendment 12, though, because it enables ministers, effectively, to make a regulation about a kind of animal that's regarded as wild and a kind of animal that's not regarded as wild. Does that, in effect, then draw up a list of those animals that are wild and those animals that are commonly domesticated? Because if it does, then there still has to be a consideration about where you draw the line and where it's acceptable to have an animal based on the three ethical considerations at the heart of this bill to perform in a circus or not. If I could just briefly go back to the issue about frequent updating of lists or consideration, the nature of domestication is that it happens over multiple generations. The cabinet secretary mentioned how we consider the changing use of alpacas and llamas. That's occurred over at least a generation, a human generation, 30 years or so. The idea that we'd be updating any kind of list, whether it's under amendment 12 or the other amendments in this group yearly, I think simply wouldn't happen. Domestication happens over a long period of time. The culture about how we use animals changes over a long period of time, so I don't believe there's an issue that needs to be revisited the whole time, but I would seek, just in clarification of that cabinet secretary, about what way the regulations would actually be brought in potentially by the Scottish Government and where do you draw the line in terms of a list of species then? Cabinet secretary, do you want to respond to that? Yes. I think that there's a slight misunderstanding. Most of us can agree on pretty much all of the animals that are domesticated and all of the animals that are wild. What we're talking about is those small numbers where there may be some real dubiety or an animal that we haven't heard of or met before us and normally used in circumstances at the moment here, so we've got a situation that might be slightly ambiguous where there's real doubt as to whether an animal is domesticated or wild. The expectation is that the regulations would only come into play when we were confronted with that real doubt. Those regulations won't be coming into play if somebody is using a lion or a dog, because one is clearly domesticated and one is very clearly wild. It's only when you're in that situation. I jokingly made the comment about the wallabies, but you see that there are wallabies in Scotland. They've got free and they've now colonised in a small park round in the Lomond Trossless National Park, so you can understand how an animal, which we've not previously thought of as being an animal that's in Scotland—I don't know whether wallabies are being domesticated in Australia by now or not—we get confronted from time to time with an anomaly, and it's those anomalies that we would be looking at those regulations to be dealing with, not the widely understood idea of domesticated and wild. The vast majority of the animals that John Scott and Mark Ruskell listed are clearly defined to be, but the minute you start specifically listing, you could hear straight away how that then left off from each list and other animals, which, just around this table, around this room, we were able to bring up examples of. If we could bring up examples of them, you could bet your boots that everybody else is going to be able to as well. We're using common understanding of wild animal, domesticated animal, and these regulations—Mark Ruskell is quite right—they're not going to be used every six months or every year, but only when a very particular anomaly arises and there is real doubt as to whether a particular animal falls into a particular category. It will be a consideration of that particular animal, and we will be hearing evidence and getting information about that particular animal. Stewart Stevenson, do you want to come back in a very brief way? I just wanted to, cabinet secretary. It strikes me that when I look at the amendment 12 paragraph 2 subsection A, it makes very clear that, in no sense is the generality of commonly domesticated and other parts of section 2 not undermined or replaced by any list that might be created by secondary legislation. That is probably the most important part of the amendment that you seem to be bringing forward, that it protects the generality even though there may at some point in future be, I suspect, a quite short list introduced by this. It complements but does not replace the generality. Does any other member wish to come to me? It's worth noting that both Mark Ruskell and John Scott's amendments are entirely constructive and well-intentioned and what they set out to achieve. However, as we have heard today, they are immediately difficultly throwing up with them. Perhaps it reflects the wisdom of the committee in handing this back to the Scottish Government in our stage 1 report, when we asked the Government to reflect upon the issue of lists, although some of our members have kindly attempted to assist in that. On that basis, having reflected upon it, I couldn't support either of the amendments brought forward by those gentlemen, although I would stress that they were constructively offered. No other member wishes to contribute. John Scott to wind up and either press or withdraw his amendment. Thank you very much, convener. I thank the cabinet secretary for her explanation of the apparent weaknesses of my three amendments, which perhaps convinces me of the dangers of seeking to have lists. She named species certainly in her explanations that I was not even aware of and certainly my intention was to include animals and definitions rather than exclude them. Also, the burden of frequent updates on Parliament would not be one that I would wish to foist on future generations of parliamentarians in terms of subordinate legislation. I welcome however that the cabinet secretary has brought forward amendment 12 and that it will be subject to the affirmative procedure. I believe that Mark Ruskell's intentions and amendments in mind have served their purpose to encourage the Government to further refine their approach and, as probing amendments, they have served their purpose. I welcome the explanation from the cabinet secretary as to how amendment 12 will work. I share some of Mark Ruskell's remaining concerns, but I will therefore, with the committee's permission, not move my amendment, as I believe the committee's view is now to support amendment 12 instead. So you're withdrawing your amendment, or you're seeking to withdraw your amendment? Yes. Okay. Are all the members comfortable with that? Okay, thank you. So I now call amendment 14 in the name of Mark Ruskell already debated with amendment 1? Mark Ruskell, to move or not move? To not move. That's right. To not move. Are the members comfortable with that? They are indeed. The question is that amendment—sorry—I now call amendment 15 in the name of Mark Ruskell already debated with amendment 1? Mark Ruskell to move or not move? To not move. To not move. Okay. I call amendment 16 in the name of Mark Ruskell already debated with amendment 1. Mark Ruskell, to move or not move? D estoy'n defnyddio yn mynd i'r llwyddem un blyny o geni John Scott yn un tor weddingakw�ol ty However, 4, 5, 6— maen nhw'r mwy o'r amser, phobl yn byw yw ei ddych yn g同ill fod i dd Divine Wreth's Cymru aethai yn ddolir ar y cyfleoedd, oedd yn ddigon i ddialog iawn? 준 Hyw granny, a'r amser llwyddoedd yn ddialog iawn? Mae ddialog iawn i ddialog iawn iddill yn ddialog iawn, ond mae'n ddialog iawn wedi'i ddialog iawn i ddialog iawn, a ddialog iawn iddill yn ddialog iawn? Mae ddialog iawn iddill yn ddialog iawn i ddialog iawn, a ddialog iawn? 20 yn y nameu yw Mark Ruskell wedi'i dweud o amendment 1. Mark Ruskell, to move or not move? Not moved? Not moved, thank you. I now call amendment 19, in the name of David Stewart, group with amendments 8, 9, 10, 11 and 13. David Stewart, to move amendment 19 and speak to all amendments in the group. Thank you, convener. While one kind initially took the view that Scottish courts would be well able to interpret the word circus in the case of any proceedings under the new act, they accept the point that made it stage 1 that it is not particularly practical for enforcement agencies to have to wait for judicial definition when addressing possible breaches of the legislation. Cases in court are the tip of enforcement iceberg and local authority need to be able to act quickly and work with clear, comprehensive legislation at all times. Understanding of the word circus was complicated by discussions in the committee at stage 1, set out in detail in stage 3 of the stage 1 report. I therefore believe that it is essential to include a clear definition on the face of the bill. Amendment 19 reflects the previous discussion, covers the necessary elements and would aid interpretation of the legislation all stages from consideration of enforcement through to the court process. Therefore, I move amendment 19, convener. Thank you. Cabinet secretary, to speak to amendment 8 and other amendments in the group. Thank you, convener. I mean obviously the definition of travelling circus that was contained in the bill has been a subject of some conversation and deliberation. The committee considered that the term place to place could inadvertently capture wild animal use in a static circus that relocates. Part of the concern raised by the committee regarding what constitutes a travelling circus related to parallel concerns around the lack of a definition of the word circus in the bill. I will speak to amendments 8 to 11, dealing with the wider definition of travelling circus first, and then come back to amendments 13 and 19, dealing with the more complex topic of defining the word circus. With regard to amendments 8, 9, 10 and 11 in my name, the mention of the text in section 3 of the bill relating to travelling circus is to clearly target the ban on travelling circuses so that static circuses and any other enterprises not considered to be travelling circuses should not be caught by the ban. I thank the committee for their close scrutiny of section 3 of the bill and for raising their concerns. The amendments address committee concerns that travel from place to place could inadvertently capture enterprises that are not in fact travelling circuses by replacing this phrase with from one place to another, provide more clarity on the type of travel necessary to make a circus a travelling circus under the bill, by describing travel as being quotes regularly or irregularly from one place to another for the purpose of providing entertainment, and specifically mention a relocated static circus as an example of what would not be included as a travelling circus. I believe that those changes go a significant way to addressing the committee concerns regarding the definition of a travelling circus. If I could move on to the topic of defining the word circus to outline why I support or would recommend support of amendment 13 lodged in the name of Graham Day and why I could not recommend support of amendment 19 in the name of David Stewart, the committee stage 1 report recommended that the Scottish Government include a clear definition of circus on the face of the bill and the view of the committee was that such a definition was crucial for the correct targeting of the ban and that without it the bill would be difficult to enforce. This was a view that did come through strongly I think in this stage 1 debate. I understand those concerns regarding the targeting of the bill and the intention is to ensure that the ban on the use of wild animals is effectively focused on travelling circuses. However, a specific definition on the face of the bill such as that provided by amendment 19 would be frozen. I remain extremely concerned that such an approach would risk the unintended consequence of capturing or excluding certain enterprises precisely because of its rigidity. A narrow definition would provide travelling circuses with a clear blueprint of how to avoid the ban by making adjustments to their shows rather than by halting the use of wild animals. This could inadvertently provide travelling circuses with a continuing opportunity to bring wild animal acts to Scotland and use them in their performances or displays. Conversely, a wide definition has the potential to capture the use of wild animals in many sectors that it is not intended to ban. I do thank David Stewart for lodging his amendment, but I am concerned that the very wide definition he proposes would ban the use of wild animals in a much broader range of activity than just travelling circuses. It has the potential to capture wild animal use in many sectors where it is not intended for the ban to have any effect. For example, film use, bird of prey exhibitions and festive reindeer could be said to involve animals performing tricks on manoeuvres or being displayed or exhibited. However, I recognise that the committee and some stakeholders remain very concerned by the issue. I also acknowledge that there may be occasions when enforcement authorities will need to carefully consider whether or not a particular enterprise is a travelling circus and hence included under the ban. I expect the guidance that we will be issuing to local authorities will provide assistance in making such decisions. However, amendment 13, which will be dealt with a little later, provides powers to address those concerns conclusively in cases of doubt, and would provide a power to make regulations to include or exclude a particular type of undertaking act entertainment or other similar thing within the meaning of travelling circus for the purposes of the act. I appreciate, convener, that you are probably coming back to amendment 13. The regulations would be subject to the affirmative procedure, consistent with the procedure used for other animal welfare secondary legislation, and allow the committee to fully consider individual cases. Again, it would be used only in the case of genuine doubt. The proposed amendment 13 does this while avoiding the significant challenges that would accompany a requirement for a complete list of all the types of undertakings acts, entertainments or other similar things that are to be included or excluded from the definition of travelling circus. Any such list is unlikely to ever be comprehensive, and it is highly likely that some types of enterprise would be omitted. It also avoids the potentially overly widened net that would be provided by the definition in amendment 19. The adoption of amendment 13 would mean that, in the majority of cases, a bill would rely on the commonly understood meaning of circus and section 3 to define a travelling circus, which we believe is a strategy that is already working well for other legislation. However, in cases of genuine doubt about a particular kind of enterprise, we would have the power to come back and revisit it. I feel that amendment 13 is the more effective way of addressing the committee's concerns. I am grateful to the work of the committee for considering the issue and to Mr Dave for bringing this amendment forward. I need to add one small but, nevertheless, important note about amendment 19, which is that we have doubts about the legislative competence of amendment 19. I feel that I have to draw that to the notice of the committee. We feel that it is outwith legislative competence and may put the whole bill in jeopardy. I can expand on that if you want me to at this point. The head is being nodded. That would be useful to the cabinet secretary. The definition in David Stewart's amendment widens the type of activity that is caught by the offence to include any peripatetic or travelling animal display activity. That could include, as I indicated before, festive reindeer displays, birds of prey displays. The Scottish Government position is that there is insufficient evidence of moral, oprobarium or welfare concerns associated to all travelling animal display activities such as to justify a complete ban on use of wild animals in such ventures and without evidence of a legitimate justification for such a ban. That could be a risk of acting incompatibly with rights under ECHR or EU law. Thank you for that, cabinet secretary. I now call myself to speak to amendment 13. In its stage 1 report, the committee raised concerns around the definition of a circus or lack of within the bill and how that would impact on what might and might not be viewed as a travelling version of such. Responding to that stage 1 report, the cabinet secretary indicated a loganus to consider any amendment aimed at bringing clarity that was brought forward, providing an effect that did not have unintended or unwanted consequences. That amendment, which is complemented by clarifying guidance, would get us as far as we reasonably can to address the committee's concerns, while not creating a wriggle room either for activities that should be captured by the scope of the bill to escape it or where we would have acts that might be described as acts of entertainment that were never intended to be captured to be caught. I hope that the amendment addresses the unanimous concerns expressed by the committee. Essentially, the amendment would give ministers a power to bring forward regulation either to define an activity that was perhaps contending it was not the travelling circus when it was indeed intended to be the subject of the bill, but similarly to define an activity that was never intended to be captured but might become the subject of efforts to contend it was. I am thinking of things such as reindeer visiting shopping centres or wild birds shows. The amendment calls for such regulations to be brought under the affirmative procedure, which would afford this committee or any relevant successor committee to properly interrogate them. Clearly, we would wish that there was never a need for these powers to be exorcised, but I think that between accepting this amendment and the guidance, the accompanying guidance to the bill to be as clear as possible, we get where we need to go. I open it up now to members, Stuart Stevenson. Looking at what David Stewart intends, I have no particular difficulty with, and it addresses recommendation 8 in the committee's report, but the wording blows the whole thing wide open. Looking at subparagraph A in relation to animals that are kept or introduced wholly or mainly for the purpose of. How would I get round that? Very simply, I would simply get my animals, lease them from a zoo for no more than 182 days per year. Therefore, they are in the zoo for 183 days per year. Therefore, they are mainly zoo and only subsidiarily are the circus. Secondly, they are kept or introduced. I am not quite sure what introducing the context means, but they are kept. If they are normally kept by another enterprise, which is not the circus, such as a commercial zoo and there are commercial zoos, then again, the whole thing would escape. I am sure that further examination might find other ways in which the particular words are used. That is an issue that the member might consider further. In relation to the particular words that we have before us, I think that it would be extremely unwise because of the quite straightforward ways that we can see that we can get round them for us to accept and approve this particular amendment. Donald Cameron Thank you, convener. First, on legislative competence, I would be interested to know what provisions of EU law or the Convention on Human Rights the cabinet secretary has in mind in terms of taking it out with legislative competence. That is my first question. My second one is in relation to David Stewart's proposed amendment. I take on board what the cabinet secretary said about various issues around the wording of A and B, and therefore find it difficult to support. However, the principle of defining the word circus is worthy of further consideration. This is a bill that goes to great trouble in section 3 of defining not just travelling circus but the phrase circus operator. The circus operator, we are told, means the owner of the circus. We are told later that any person with overall responsibility for the operation of the circus does the cabinet secretary think that it is sustainable to pass legislation regarding wild animals and travelling circuses without defining the very word circus. I want to let Kate Forbes come in. It is a very brief comment. I understand the intention of David Stewart's amendment. My main concern is that it would mean that the legislation goes beyond its intention. The main concerns that we raised during the course of evidence around, for example, travelling reindeer, I fear, would be captured, which is one of the main concerns that we have raised. However, I do see the temptation to define circus. I see amendment 13 as constructive amendments being brought forward, but it perhaps falls into the same trap as amendment 12 that we had already debated around the definition of a wild animal or domestic animal. The cabinet secretary says that there will be, or there may well be, situations where there is genuine doubt in terms of both the definition of a wild animal but also a definition of a travelling circus. This amendment seems to be drafted in a very similar way to amendment 12. It is relying on the generality of a definition that is already in a bill, a generality in which this committee has already had concerns about in the sense that it is not tight enough. I would have the same lingering concerns that we just had in the previous debate in a way that pushes the issue into the future. It says that if there is a legal challenge, if there is a concern about definition, we will come back and we will regulate it at that point. At some point, I would expect the definitions of what is a wild animal and what is a travelling circus to come back possibly through the courts and then possibly then through further regulation in this committee. I just don't know if that is the most appropriate way to deal with it. If there is a tighter, more accurate and relevant definition of both of those terms now that could be put into the bill, why not put it into the bill at this point but enable that to change over time if evidence is brought forward? Are there any other members who have any points before I bring you back in comments so that you can answer any questions that you have to—no, Cabinet Secretary. Right. I do not want to be drawn into the broader discussion about definitions in legislation, but this is not something that is very specific to this piece of legislation. You will hear this kind of argument played out in almost any legislation when it comes to definitions and the likelihood of challenges under that. We accept that there may be in the future from time to time some determination to try and challenge this, but that is no different to any other piece of legislation. I cannot think of any legislation where that might not be a hypothetical future possibility. The fact of that being a possibility in the future, I do not think, is a defining reason why we should be going into the kind of contortions that would be necessary. I think that committee members can already see what kind of contortions you get into when you start trying to make those definitions in practice work in terms of legislation. I am content that where we are at the moment does not freeze a definition of circus, which is the common understanding of which may change over time as happens to many things any more than it freezes a definition of wild animals or domesticated animals. There is a need to future proof legislation in that sense, and that is what we are doing. I am not saying that what we do here will absolutely guarantee that there will never be a challenge. One can never ever say that, but what we are trying to ensure is that we capture the right things in the right way. I need to go back to the very start. Members need to remember that this legislation has not been predicated on welfare grounds, it has been predicated on ethical grounds. We need to make our arguments on ethical grounds, and our discussions on the future way that this legislation will be looked at on ethical grounds rather than welfare grounds. If it was welfare legislation, it would look and sound rather different. The specific point that Donald Cameron raised in respect of legislative competence, I indicated that we had doubts about legislative competence, and I do not know whether or not David Stewart has had any of his own conversations with respect to that. In terms of EU law, it is the freedom to provide services. We are interfering with businesses here and therefore we have to have regard to that. In terms of VCHR, it is right to property article 1, protocol 1. We have concerns, and those concerns can be overcome, obviously, by making the arguments, but I go back to this being ethical grounds, not welfare grounds, for us to remind ourselves what the basis of the legislation is in the first place. I am just being reminded that clear guidance to local authorities is to be provided on the back of the bill. That guidance will presumably come back to the committee for the committee to have a look at and consider whether it is sufficient or not before it goes out to local authorities. David Stewart, to wind up and press or withdraw his amendment. Thank you, convener. The objective, obviously, of amendment 19 was to improve the bill. There was some criticism at stage 1 that there was some vagueness around definition. I was particularly concerned, and I think that so were members, to ensure that we did not just wait for a definition to come through a court process in various test cases, but that advice and guidance was given to the 32 local authorities immediately. However, I understand the points that the members have made in the cabinet secretary who has made, and because of that I will then withdraw amendment 19. Mr Stewart seeks to withdraw amendment 19. No member wishes to present. I will move on. I will call amendment 8 in the name of the cabinet secretary. Already debated with amendment 19, cabinet secretary, to formally move. Moved. The question is that amendment 8 be agreed to. Are we all agreed? We are all agreed. I call amendment 9 in the name of the cabinet secretary. Already debated with amendment 19, cabinet secretary, to move. Thank you. The question is that amendment 9 be agreed to. Are we all agreed? I call amendment 10 in the name of the cabinet secretary. Already debated with amendment 19. Cabinet secretary, to move forward. Moved. Thank you. The question is that amendment 10 be agreed to. Are we all agreed? We are agreed. I call amendment 11 in the name of the cabinet secretary. Daen ni'n ddiwedd ar y cwestiwni. Mae aак playlistau'r ysgolwgr yn dynnu 11. Mae aak playlistau ysgolwgr yn dynnu 3. Y cwestiwni grefio ysgolwgr yn dynnu 12. Mae aak playlistau ysgolwgr yn dynnu 12. Mae aak playlistau'r ysgolwgr yn dynnu 11. Yes, that will be a division. All that in favour of amendment 12 hands down all those against and all those abstaining. The amendment is supported by 10 votes, no votes for and no abstention is agreed to. I call amendment 13, in the name of graham day, by the politics and electoral committees, in the name of the committee's number 13, Go can vote in the name of amendment 19 and I move out that amendment in my name. The question is that amendment 13 be agreed to. Are we all agreed? Yes. We're not agreed. We'll then have a division. All those in favour of amendment 13, hands down. All those against. Anyone wishing to abstain? That amendment is agreed. The question by 10 votes with one abstention, no votes against. The question now is that sections 4 and 5 be agreed to. Are we all agreed? We are agreed. The question is that schedules 1 and 2 be agreed to. Yes. Are we all agreed? We are agreed. The question is that sections 6 to 8 be agreed to. Are we all agreed? We are agreed. The question is that the long title be agreed to and we are we all agreed. Ion stage 2 consideration of the bill. At its next meeting on 28 November, the committee expects to take evidence ahead of the Scottish government's draft budget for 2018-19. I now close this meeting.