The Bonomy Review – What is it and where next?

Fox hunting was meant to have been banned in Scotland back in 2002. In reality, loopholes in the Protection of Wild Mammals (Scotland) Act 2002 have meant that little has changed. OneKind has long called for these to be addressed, and we’re delighted that a major step towards this has finally been taken.

This week a review of the Act by Lord Bonomy was published.  This was commissioned at the end of last year following the announcement by the SNP that it would vote against amending the Hunting Act in Westminster to bring it in line with the weaker law in Scotland. At the time, Angus Robertson, the SNP leader in Westminster and now deputy party leader said: “We totally oppose foxhunting and, when there are moves in the Scottish Parliament to review whether the existing Scottish ban is strong enough, it is in the Scottish interest to maintain the existing ban in England and Wales”.

The remit for the review was much more timid than this, however. Lord Bonomy was asked to review the Act with the aim of ensuring “current legislation is providing the necessary level of protection for foxes and other wild mammals, while at the same time allowing effective and humane control of these animals where needed”.  This means that the review does not question the legitimacy of exempted pest control activity. 

In spite of this limitation, we were delighted to have been able to contribute to the Review, and we consider the report to be detailed, thorough and authoritative, showing a profound understanding of the views expressed by stakeholders with widely differing views. There is no doubt that the Report recognises many of the deficiencies of the current legislation and makes important recommendations for change. 
OneKind is calling on the Scottish Government to act quickly on the report and its recommendations. Lord Bonomy has done his job, and it’s now over to the Scottish Government to close the loopholes in the Act and end fox hunting, as the Scottish Parliament intended. This will mean implementing all of Lord Bonomy’s recommendations, and considering what else needs to be done if this goal is to be achieved. 
What does the Bonomy Review tells us about hunting in Scotland?

Lord Bonomy first sought to establish the current situation relative to hunt practices before the ‘ban’. His observations square with our own. Following the introduction of the Act, the mounted hunts switched to flushing with guns to provide a pest control service. This is permitted in an exemption to the Act. Three important points about this practice are made:

i. The potential for this development was not addressed or envisaged by the Scottish Parliament or anyone else during the passage of Bill (3.11). Lord Bonomy notes that “pest control can appear to be incidental to the primary objective of exercising horse and hounds” (6.12), and that “there is a view, for which there is some supporting evidence, that the flushing from cover for pest control exception is a decoy for the continuation of some traditional hunting practices” (7.37). We believe that this means that flushing to guns has become a cover activity for traditional fox hunting, and that whilst it may be more or less within the letter of the law, there is no democratic mandate for it.

ii. Lord Bonomy agrees that the way flushing to guns is done in practice may result in hounds chasing foxes even after they have been flushed (6.5).  Submissions and evidence to the Review “challenge the claim by the mounted hunts that the chase has been eliminated and that their kills are achieved exclusively by activity that falls within the exception in Section 2 of the Act” (6.14). 

iii. Foxes continue to be killed by packs of hounds. Sadly, this case of a fox killed by hounds was not published in time to be considered by the review. However, the review estimates that 20% of foxes disturbed by hounds on a hunt are killed in this way (6.19), and that approximately 800 foxes are killed by mounted hunts (3.8). This suggests approximately 160 foxes continue to be killed by hunt hounds every year in Scotland.

iv. Hunts are “not readily open to public scrutiny” (7.1). This makes establishing the nature and legality of their activities difficult.

Lord Bonomy’s Recommendations

Lord Bonomy’s review makes many recommendations. In their totality, they would in effect result in regulated hunting with a degree of independent monitoring. This is in line with the remit of the Review and would represent a significant step forward. However, we believe that the Scottish Government needs to open up a wider debate as to whether regulated fox hunting is the right outcome. The Scottish public consistently back a full ban, and we believe this is the position of the SNP given the position taken in Westminster. It was also the will of the Scottish Parliament at the time the Act was passed.  A full ban would, at the very least, require Lord Bonomy’s recommendations to be implemented in full in addition to a two-hound limit for exempted activities. Lord Bonomy was unable to back this recommendation given the remit of the review (7.26), but that does not rule it out for the Scottish Government, who will be able to take a wider perspective. 

The key recommendations made by Lord Bonomy were:

1. The language of the Act should be reviewed to remove inconsistencies and inappropriate and unnecessary expressions (2.5). This is particularly clear from the Police Scotland submission to the Review, which notes the lack of clarity in the legislation and suggest that this makes it extremely difficult to obtain sufficient evidence to prove the basic offence of deliberately hunting a wild mammal with a dog. OneKind also made substantial submissions on the confusing and inconsistent nature of parts of the Act. One particularly important clarification that is needed is the definition of ‘hunting’. One suggestion is that hunting “includes to search for, stalk, flush, chase, pursue or course”. (5.15)
2. Consideration of appointing independent monitors to observe the activities of hunts using packs of hounds (2.6). We believe this could be an important interim measure to introduce greater transparency to the hunt’s activities. OneKind would be willing to work with others to develop a workable proposal that would deliver this recommendation.
3. Developing a voluntary Protocol of Code of Practice which would cover both hunt activities and official monitoring exercises (2.7) There is already a voluntary Protocol that was developed by the Scottish Hunts with Police Scotland. However, there was no wider stakeholder consultation on the Protocol and we have little faith in it. We welcome any improvement to the Protocol, particularly public reporting of hunt activities and outcomes, but do not consider it to be an important part of the longer-term solution.
4. Expanding the offence to capture both intentional and reckless hunting (2.8) This would be an important amendment that would go some way to preventing reckless behaviour that results in ‘accidental’ hunting and, again, it was a reform proposed by OneKind.
5. Introduce vicarious responsibility so that the landowner who permits the hunt to carry out their activities over his land would be guilty of an offence in the event that someone involved in the hunt commits an offence (2.9). Alongside the other recommendations made by Lord Bonomy, vicarious responsibility could act as an important additional deterrent to illegal activity.
6. Require that the onus of establishing that conduct fell within one of the exceptions lies upon the accused (7.37) This would mean that the absence of evidence to indicate a genuine activity falling within an exception would be sufficient to prove illegal hunting.
7. Extend the time limit for bringing prosecutions under the Act (7.42) This was proposed by the Police and the Crown and would bring the Act into line with others that create wildlife offences. 

Where next?

The Scottish Government will now take some time to digest the review and consider its options. We hope to see an ambitious programme announced in the new year that aims to implement these recommendations and review the wider questions around the legitimacy of the exempted activities, including flushing to guns. Given the Scottish Government’s clear position on hunting, there is no reason why this could not be delivered before the 2017 hunting season.