Pictured (L-R): Niall McLean and Tony Convery

Once the relevant sections of the Act are commenced, they will make substantial amendments to the circumstances in which dogs can be used to hunt, search for, or course other animals.

Until that point, the prior legal framework (set out principally in the Protection of Wild Mammals (Scotland) Act 2002), remains in force.

How will the Act regulate the hunting of wild mammals?

The Act will significantly restrict the circumstances in which, and the purposes for which, dogs can be used to hunt wild mammals.

Hunting a wild mammal with a dog will be a criminal offence unless permitted by a lawful exception within the Act.

It will be an offence for a landowner to “knowingly cause or permit” another person to hunt a wild mammal with a dog on their land other than in accordance with one of the exceptions in the Act. There will also be an equivalent offence for those who permit their dogs to be used other than in accordance with an exception.

The exceptions in the Act cover use of a dog:

• To manage wild mammals above ground.
• To manage foxes below ground.
• In connection with falconry, game shooting and deer stalking.
• To relieve the suffering of injured wild mammals.
• To search for dead wild mammals.
• In connection with an environmental benefit scheme.

Each exception is subject to a variety of conditions which must be met in order for the exception to be relied upon. If a condition is not met, the relevant exception will not apply, and the use of the dog to hunt a wild mammal is likely to be unlawful.

Licensing

The Bill establishes a licensing system in respect of the exceptions relating to: (i) management of wild mammals above ground and (ii) environmental benefit schemes. A licence can be obtained in order to permit more than two dogs to be used to undertake the controlled activity, which otherwise would be the maximum number of dogs permitted.

It is important to note that licences are not available in respect of any of the other exceptions in the Act. For example, section 5 of the Act provides that no more than one dog may be used to manage foxes above ground. Because no licence can be obtained in respect of the section 5 exception, the one-dog limit will apply in all circumstances.

What else will the Act do?

The Act also legislates in relation to trail hunting and provides a variety of additional enforcement and judicial powers in respect of hunting with dogs.

Who will the Act affect?

The Act has the potential to affect all those who hunt with dogs. That includes those who provide a “pest control” service using foxhound packs. The Act is also likely to affect landowners, their employees and contractors.

What happens next?

We expect the Act to come into effect later in 2023.

Before then, we expect NatureScot to be allocated responsibility for administering the licensing system provided for in the Act. Once allocated responsibility, NatureScot will produce guidance detailing how the licensing system will work in practice.

Niall McLean and Tony Convery are lawyers at Brodies LLP