Grouse Moor Management Group: report

3. Options for regulation

Regulatory approaches

In general, when it is considered that there should be intervention to prevent or limit unacceptable behaviour, there are several options which can be adopted. These are not mutually exclusive and most regulatory systems involve more than one approach. The choice of regulatory approach depends on the level of intervention desired and the practicalities of making use of different legal mechanisms. Many of the activities involved in managing a grouse moor are already regulated to some extent by one or more of these approaches. Options include:

Education and persuasion: Efforts to change behaviour are made by raising awareness of the negative consequences of the undesired behaviour and explaining the sort of conduct expected by society, possibly supported by formal and informal education and training for those most directly concerned. No sanctions are available against those who do not comply.

Self-regulation: Again there are no sanctions for non-compliance, but there is a more concerted effort to use peer and public pressure to secure the desired results. Accreditation schemes and voluntary Codes of Practice can help to define what is expected.

Financial measures: These can provide tangible incentives to behave in the way desired and disincentives against undesired behaviour. These can take the form of stand-alone measures, such as the provision of grants to support particular desired activities, or be integrated into wider financial measures such as taxation or support for a sector of industry.

Prohibition: It can be made a criminal offence to carry out particular conduct. That conduct must be precisely defined so that it can be proved in court whether or not an accused person has acted in the proscribed way. The definition of the prohibited conduct may require proof of deliberate or knowing wrong-doing and may cover an activity whenever and however undertaken or only when carried out in specific circumstances (e.g. hunting during a specified close season). Where it is difficult to detect or prove commission of the main crime, offences may target related activities, e.g. simply possessing specific poisons or eggs.

Licensing or permitting systems: These build on prohibitions by providing that an activity that is prohibited may nevertheless proceed lawfully when permission has been granted by the relevant regulatory body. Most commonly, licensing schemes require an individual application and express grant of a licence, but licences can be granted automatically where prescribed criteria are met. The licence may contain conditions (a standard set applied in all cases or bespoke conditions for the individual case) that must be observed in order for the activity to be lawfully authorised. In view of the costs involved in operating a licensing system, it may also entail fees and charges, for applications, for the grant of a licence and/or annual subsistence fees.

Under the Wildlife and Countryside Act 1981, another style of licence is used, the ‘general licence’ whereby everyone who falls within a specific class and acts within the limits of certain conditions is automatically granted a licence (e.g. although collecting birds’ eggs is prohibited, occupiers of land are authorised under a general licence, without having to apply individually, to clear unhatched eggs from nest-boxes during certain months outside the nesting season). The modification or withdrawal of a licence can be a sanction in itself, but still requires a clear evidential basis where this has a substantial effect on the licence holder. The licensing scheme under the 1981 Act allows for a general licence to be withdrawn from sites or individuals where there is reason to believe that the terms of the licence have not been observed. The structure of general binding rules, notifications, registrations and permits available to SEPA under the Environmental Authorisations (Scotland) Regulations 2018 offers a further model for a permitting system which allows activities to be regulated without an individual permit being required in every case.

All regulatory options will entail different costs to operators, regulators and monitoring bodies. The costs of managing and monitoring the regulatory system can be met by the public purse, as one of the many services provided by government, or attempts can be made to recover these in whole or part through fees and charges on those carrying out the regulated activity, increasing the burden on them.

Codes of Practice: In various areas of activity Codes of Practice are used or proposed, but it is important to be clear about the status of any Code. Sometimes Codes are part of an approach based on education, persuasion and self-regulation, providing a guide to best practice but with no legal sanctions for non-compliance. A voluntary Code of this sort can still ‘have teeth’, but only if there is widespread confidence that breaches of the Code will be detected and some meaningful consequences follow, e.g. loss of accreditation that is commercially crucial since it enables premium prices and market access. Other Codes are integrated into legal controls, helping to define the limits of acceptable behaviour, beyond which sanctions can be applied. The existence of legal measures directly controlling the relevant conduct is a prerequisite for a Code to ‘have teeth' in this more formal way.

In some contexts there are references to ‘statutory Codes’, but again it is important to be clear what is in mind. A Code can be ‘statutory’ in the sense that there is a legal duty on a specified body to produce a Code, but without it having any direct legal weight; or it can be given legal consequences, either guiding the discretion of a regulatory body and/or court or helping to define what is acceptable or unacceptable behaviour, with legal sanctions flowing from that.

Human Rights: Any regulation of the way in which the owners can use their land is an encroachment on their right to the “peaceful enjoyment of possessions” under the Human Rights Act 1998. The owner’s right to use their land as they wish in the absence of existing regulation is thus protected, and this includes the right to damage or destroy the property (except where statute has intervened or the rights of others are adversely affected). This right, however, is not absolute and can be limited where “deem[ed] necessary to control the use of property in accordance with the public interest”; environmental regulation has been accepted as an interest that justifies intervention. The overwhelming majority of challenges to regulatory controls on the basis of interference with the right to property fail, but the intervention must be clearly set out in the law and be proportionate, which requires that the legal measures imposed do fulfil the stated legislative objective and encroach on the rights no further than is necessary to accomplish that objective.

Options for consideration

No change to existing legal regulatory structure

Without introducing any changes to the formal regulatory structure, a higher profile could be given to ensuring the sustainable and lawful management of grouse moors, through publicity, the opportunity for training for relevant staff and the development of voluntary Codes of Practice and accreditation schemes.

There could also be a greater willingness to consider using existing legal measures. Examples include reviewing whether changing ecological conditions (such as the decline in nesting wader populations) mean that more grouse moors now meet the scientific tests to qualify for a statutory conservation designation, e.g. Sites of Special Scientific Interest, that may both impose some further regulation and open the opportunity for financial support for management activities. The potential to limit or grant general or specific licences might be more fully exploited in cases where birds are causing or suffering difficulties. Where seriously harmful acts occur, e.g. muirburn that damages a substantial area of valuable habitat, consideration could be given to use of the offence under s.40 of the Regulatory Reform (Scotland) Act 2014, which punishes those who act or fail to act, or permit another person to act or not act, in a way that causes, or is likely to cause, significant environmental harm.

Improve the effectiveness of the existing law

The primary focus of attention, the killing or control of raptors, is already unlawful, but the law is proving ineffective because of the difficulties in detecting direct harm, identifying the offenders and gathering sufficient admissible evidence for prosecution. Improving the effectiveness of the existing criminal law might resolve this. Increased priority and resources devoted to this activity might produce results, especially when combined with scientific advances in evidence gathering, the increasing use and sensitivity of tracking devices and the rapid availability of the data produced for law enforcement purposes.

Legal changes might further improve the position. The use of surveillance cameras has potential to improve detection but, as our discussions with the Crown Office and Procurator Fiscal Service have shown, is likely to remain of limited use. This is because of general restrictions on when and where cameras can be installed, especially without the permission of the person on whose property they are placed, and on the admissibility of covertly obtained evidence. Improved access to data from remote monitoring tags attached to birds may assist the police’s work. The law on the need for corroboration could be rationalised – there is no need for corroboration for some wildlife crimes – but may make little difference in practice. More consistent and severe sanctions could be introduced. This final issue has already been considered by the Wildlife Crime Penalties Review Group (Poustie Review) that reported in 2015 and guidance on sentencing for wildlife offences is included in the early work of the Scottish Sentencing Council. Legislation on aspects of this issue is contained in the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill introduced to the Scottish Parliament at the end of September 2019.

Direct prohibitions

As noted above, the killing or control of raptors has been a criminal offence for many years. Other prohibitions could, however, be introduced to support this, targeting conduct which supports or serves as the driver for such unlawful conduct. If prohibitions are used, the proscribed conduct must be capable of clear definition, but the effect of a prohibition can be softened by a licensing scheme authorising the conduct in specific circumstances. There is at present no satisfactory definition of a ‘grouse moor’, and changing conditions mean that whether and in what way grouse are shot on particular land may vary over time. However, the shooting of grouse would provide a feasible target for prohibition, completely banning the activity, and thus removing the reason for carrying out the range of (lawful and unlawful) management measures that can harm raptors and habitat. In the absence of a licensing scheme to allow shooting to continue in approved circumstances, such a prohibition would end the use of land as grouse moors and all related commercial activity.

Codes of Practice

As noted above, Codes of Practice can be of many sorts and play many different roles, and a key issue is always their legal status and the consequences if the Code is breached. Codes can be integrated into legal regulatory schemes in a way that gives more flexibility than the use of the criminal law, e.g. so that breaches do not attract a sanction immediately but are relevant to decisions on whether to grant or revoke a licence. Even in such cases, though, there must still be some credible (and ultimately legally defensible) basis for taking any formal action that has a negative impact on the allegedly offending party.

More could be done to develop Codes of Practice on various issues, either wholly new ones such as for shooting Mountain Hares and the application of medicated grit, or enhancing existing ones such as for muirburn. Their status and interaction with more formal regulatory controls must be clearly specified.

Accreditation schemes

Emphasis could be placed on rewarding good behaviour, rather than punishing bad, by means of an accreditation scheme. This operates by providing formal recognition of those who have the training, or whose practice has shown that they can confidently be expected, to live up to high standards. This works best where there is a market in which the accreditation will confer a clear advantage on the holder. At present it is unclear whether market conditions are such that accreditation would be a key factor driving crucial consumer choices in buying game or shooting opportunities. Moreover, there would be a need to identify a body (or group of bodies working together) whose operation of an accreditation scheme would earn widespread credibility and respect.

Financial incentives

There are various formal financial schemes which offer opportunities for intervention, e.g. rural development and agricultural subsidies and many aspects of the tax system. Although some grouse moors are not run on a commercial basis, financial considerations are usually of great significance in choosing between alternative land uses.

The changing emphasis in agricultural policy in England towards ‘public money for public goods’ might have echoes in Scotland as the value of the varied ecosystem services provided by grouse moors, or by alternative land uses, is increasingly recognised and potentially rewarded. In the lowlands at present the state is paying large sums to farmers to manage land in a way that is ‘environment-friendly’, whereas in the uplands land management which produces (contested) environmental goods is being provided in some areas at private expense, with significant local socio-economic benefits as an additional side-effect. To the extent that moorland management is accepted as enhancing some elements of biodiversity it might be possible to include it within financial support schemes. The availability of support for particular management activities, e.g. for habitat enhancement, within or beyond designated sites, may also encourage desirable practices.

Licensing

The possibility of licensing arrangements for grouse moors is mentioned in our remit and has been much discussed. The starting point for any such scheme is the initial prohibition of the defined activity unless a licence is obtained (as for muirburn or shooting Mountain Hares outwith the respective permitted seasons). Where some legal controls already exist, there is a question of whether all aspects should be brought within the licensing system or some continue to be directly regulated. For example, if muirburn were to require a licence, would the rules on notifying neighbours become conditions of the licence, or remain as free-standing requirements which would directly result in criminal liability if breached?

For any licensing system a number of key questions arise. The answers will be affected not just by the objective being sought but also by practicality, since for any system to work well, clear definitions and ease of administration and enforcement are important. The issue of the cost of establishing and operating the system and how far this is to be recovered from those seeking or obtaining licences must also be considered.

• What activity is to be licensed and how is its scope to be defined?
  • Some activities can be clearly identified, e.g. shooting Mountain Hares. On the other hand, there is no clear definition of ‘grouse shooting businesses’ (as specified in our terms of reference), nor of ‘grouse moors’ and although it is the more intensive management for driven grouse shoots that is thought to be most problematic, annual variations can mean that in different years the same land is used for driven, walked- up or no shooting of grouse.
• Who is to be licensed?
  • The licence-holder could be a land-owner, land manager, individual worker or individual hunter. The land-owner is in a position to exercise ultimate control over what happens on the land, but complications may arise when land is owned by corporations or trusts or overseas owners.
• What are the criteria for determining whether a licence should be granted and whether its terms are being met?
  • Criteria could relate to the present condition of the land affected and the record of those seeking the licence. Breaches of the law in this or related areas might also be relevant. More positively, there could be objectives set for the medium- to long-term management of the site (e.g. an expectation of specified populations of certain birds) and progress against this used as a criterion (with due regard for the disruptive potential of unforeseen events such as disease or weather). At this point a Code of Practice might be relevant, with breaches of the Code not directly attracting sanctions but being a key consideration in whether a licence is granted and retained.
• Who is to be the licensing body?
  • In this area the obvious choice is SNH.
• What is the application process (in terms of complexity and what must be demonstrated)?
  • If a general licence is used, there is no application process at all and the licence can be automatically used by all those who meet the set criteria. Beyond that, a balance must be struck between the degree of individual supervision and control, adapted to local circumstances, and the burden (on applicant and regulator) of a heavily individualised process.
• Is the licence to be in a standard form or wholly individualised or a mixture of standard and bespoke conditions?
  • Even where individual licences are used, all or most of the terms could be in a standard form, reducing the regulatory burden on all concerned.
• What provision is to be made for renewing, reviewing, revising and revoking the licence?
  • Licences could be annual, or for another fixed period, or indefinite. Regular renewals of licences provide an opportunity to apply adaptive management and also to bring the permission to an end where there are sufficient grounds to believe, but not proof to the criminal standard, that undesirable conduct has been taking place.
• How will the licence respond to changing conditions in terms of variations being proposed/ imposed by the licensee or regulator?
  • If a licence lasts for several years, there should be provision for its review and revision to reflect changing circumstances. Especially in areas where the scientific evidence is uncertain, the scope to adjust exactly what is licensed is an important aspect of delivering an adaptive management approach.
• How is compliance to be monitored?
  • Those seeking or operating under licences could be required to report on their activities (e.g. on the number of Mountain Hares present and/or shot). There also needs to be clear provision of powers of entry, search and seizure to enable the regulatory body to investigate whether granting a licence is appropriate and obtain evidence on breaches.
• How is compliance to be enforced?
  • Carrying out an activity without a licence or in breach of its terms would be a criminal offence. As with existing offences, proving unlawful conduct beyond reasonable doubt may be difficult, but a lesser standard of proof may be acceptable as the basis for exercising the regulatory body’s discretion to limit, refuse or revoke a licence.
• How should the licence interact with other legal and financial regimes, e.g. for financial support?
  • The fact that a licence is held for an activity could be a test for establishing entitlement to financial support, or its absence a reason for withholding this.
• What appeal mechanism should there be?
  • In keeping with the position for other matters under the Wildlife and Countryside Act 1981, it would seem appropriate to allow for appeals to the Scottish Land Court.

Detailed arguments in favour of and against licensing of grouse shooting are presented in Appendix 1. Our conclusions on whether or not to license grouse shooting and related land management activities are presented in Sections 5
and 6.