Grouse Moor Management Group: report

6. Increased control of specific activities and associated recommendations

The recommendations in favour of increased regulation of certain activities given in section 5 do not specify the precise form of that regulation. The decision on what is appropriate in each case requires careful consideration of both the preferred approach for and the detailed design of any regulatory scheme. This consideration should be based on the Better Regulation principles: regulation should be transparent, accountable, consistent, proportionate, accessible, effective and targeted only where needed. It should also consider how far the wider range of regulatory mechanisms available in other environmental contexts, such as SEPA’s powers in relation to general binding rules, registrations and civil penalties, should be extended to SNH’s existing and potential new functions.

An issue that affects several regulatory options is the person who should carry legal responsibility for activities. Land may be owned by an individual, company or trust, may be occupied by the owner or by another person under a variety of long or short-term arrangements (including leases) and the control of activities on the land may be delegated to a separate land manager (employed or contracted). In our discussions we refer to the ‘land manager’ as the person who should be legally responsible for any activity covered by this report. Reflecting their underlying control of the situation, this may in most circumstances be “the owner or occupier” as is commonly the case in other relevant legislation. Nevertheless, to reflect practice, it may be appropriate to consider ways in which the owner can expressly delegate responsibility to a manager who will share responsibility, matching their effective control of activities on the ground. This is not to enable the owner to escape responsibility but to ensure that the consequences of any wrong-doing are felt by the person who has really been in charge. The implications for the contractual arrangements between owners and staff or contractors may require consideration as detailed rules are formulated.

Where legal obligations and controls are proposed, we consider that in many cases it would be appropriate for the regulatory body (chiefly SNH) to have available to it a range of enforcement options. The powers available to SEPA under the Regulatory Reform (Scotland) Act 2014 provide a useful model, with the scope for fixed or variable monetary penalties to be imposed as an initial response, but with the potential to escalate to criminal prosecution in the event of serious, deliberate or persistent breaches of the law.

Muirburn

Muirburn is currently regulated by a number of specific statutory provisions making it an offence to undertake this operation at certain times of the year (unless a licence has been obtained) and without giving due notice. These statutory provisions are supported by the Muirburn Code which provides guidance on many aspects of muirburn, including areas where it should be carried out, but which carries no legal sanction for non-compliance. It is recommended that there should be increased regulation for all muirburn, not just that undertaken in relation to grouse moor management. One element of this will be revision of the Muirburn Code to operate appropriately in the reformed regulatory context.

Increased regulation could take the form of: a) adding further requirements to the existing legislation which specify when muirburn can lawfully be carried out; b) adding a general condition that the operation is carried out in accordance with the Muirburn Code; or: c) requiring a licence for all muirburn.

Option a) would require additional conditions to be clearly specified and enforcement would rely on the use of the police and the standard criminal justice system. Possible conditions include requirements that the person responsible for the operation has completed certain certified training and that a record is kept of the date of the operation and area affected.

Option b) would appear to offer a more holistic approach to controlling muirburn operations, but has the severe drawback that the Code is not, and probably cannot be, written in a way that sets the clear and rigid boundaries of what is acceptable or not as required for the criminal law, and it would be difficult to obtain admissible evidence in many circumstances to establish in court whether the terms of the Code have been overstepped.

Option c) offers more overall control with a range of sanctions being incorporated into the licensing scheme, allowing greater flexibility in enforcement rather than the all-or-nothing approach of criminal law. Licences could be granted by SNH to the land-owner or other designated land manager, with conditions including:

• Substantial compliance with the Muirburn Code (and any subsequent updates);
• Mandatory training for the staff directly involved in setting and managing fires;
• Keeping a record (ideally a map showing the location and date) of each operation.

The potential should be explored for an automatically available ‘general licence’ to authorise certain forms of muirburn without an individual application for and grant of a licence, and for licences that cover multiple sites and seasons where the risks of inappropriate activity are low. A similar outcome could be achieved by using a scheme for general binding rules, notification and registration such as provided for SEPA under the Environmental Authorisations (Scotland) Regulations 2018. The existing legal rules on timing and notice could be incorporated within the licensing scheme.

Muirburn plans for each land management unit, or jointly for two or more neighbouring land management units, might also be required or provide a basis for a longer-term licence covering a number of individual operations. A licensing system should also include SNH having powers to check compliance, including inspection of muirburn records. SNH should have the power to respond flexibly and proportionately to breaches by imposing tighter conditions, imposing financial penalties, suspending or revoking the licence or referring the matter for prosecution for unlicensed muirburn.

In reviewing options a), b) and c), we favour option c) i.e. that muirburn should be unlawful unless carried out under a licence. There should be provision for a general licence (or equivalent) to allow muirburn to take place without seeking individual permission provided that the requirements noted above are complied with. Most instances will fall within the general licence without the need for tighter controls, but this option offers to SNH the opportunity to revise the conditions for what is acceptable in response to changing needs and to non-compliance in a flexible and proportionate way.

Mountain Hares

The Mountain Hare is a species of Community interest under the EC Habitats Directive and as such must be protected against being killed or taken by certain specified methods or by any other means which is indiscriminate and capable of causing the local disappearance of, or serious disturbance to, a population (Conservation (Natural Habitats, etc) Regulations 1994, reg.41). Moreover, the government is obliged to “take measures to ensure that the taking in the wild of specimens of [the] species as well as their exploitation is compatible with their being maintained at a favourable conservation status” ^[3] (Directive, art.14(1)). Doing so requires remedying the present lack of knowledge of the numbers present and being shot. We therefore recommend that SNH embark on achieving a proper count of Mountain Hare numbers across Scotland, not just on grouse moors nor just where they are being shot.

Beyond the need to ensure that a proper population count is achieved across all land where Mountain Hares occur, three possible options to respond to the present situation may be considered:

a) Code of Practice with a commitment to adaptive management;

b) Legal obligation to report numbers where shooting takes place, and;

c) Introduction of a licensing system for the shooting of Mountain Hares.

Central to all three of these is the undertaking of counts to determine the numbers of Mountain Hares present and (where relevant) the numbers shot.

Option a) would involve the current legislation in relation to the closed season (with the potential for licences to permit shooting at other times) being supported by a Code of Practice. The Code would build on the Mountain Hare Management Guidance within the Moorland Management Best Practice produced by Scotland’s Moorland Forum. It would take account of adaptive management requirements, with the vital addition of guidance on the standardised counting method and reporting to SNH, the basis for determining whether and how many hares may be shot in a given year and training for staff. This Code would not itself be legally enforceable.

Option b) imposes a reporting requirement to address the current lack of data on the number of Mountain Hares present and shot. This is the biggest obstacle in ascertaining whether the legal obligations under the EC Habitats Directive are being met. It would introduce alongside the voluntary Code (as in option a) a specific legal obligation to notify SNH of the intention to shoot hares and report the number of Mountain Hares present and shot (cf. the power to require returns in relation to deer under ss.40 and 40A of the Deer (Scotland) Act 1996). There would also be a requirement on those shooting hares to report on the number of hares present using a standard counting method. Failure to report would be a criminal offence. Options other than prosecution should be provided as an initial response, with only serious or persistent offending leading to prosecution. Such a provision would not limit the right to shoot Mountain Hares in season. This reporting requirement would not provide data on land where no shooting is taking place. Accordingly, as proposed above, a robust system of regular counting of Mountain Hares across Scotland should be put in place by SNH.

Option c) is that the shooting of Mountain Hares should be undertaken only under a licence granted by SNH. The licensing scheme would include the following elements:

• An annual licence would be required for the shooting of Mountain Hares, specifying the period and location where shooting is permitted;
• Landowners wishing to shoot Mountain Hares should record the number of Mountain Hares present (using a standardised reporting procedure) and numbers shot and report these numbers annually to SNH;
• Adaptive management should be used to determine the initial and subsequent numbers of Mountain Hares permitted to be shot over successive years;
• Shooting should be carried out in accordance with the Code of Practice;
• Mandatory training should be required for staff directly involved in overseeing the counting and shooting of Mountain Hares;
• SNH would have the power to impose an escalating range of penalties via Fixed and Variable penalty notices for non-compliance with the Code of Practice.

The potential should be explored for an automatically available ‘general licence’ or ‘registration’ to authorise certain forms of shooting provided that basic information is supplied, without an individual application for and grant of a licence. Similarly, the potential should be considered for licences that cover multiple sites and seasons where the risks of inappropriate activity are low. As before, SNH would have the authority to impose an escalating range of penalties for non-compliance with the Code of Practice on the management of Mountain Hares, the ultimate sanction being suspension or revocation of the licence to shoot Mountain Hares.

We propose that Option b) is adopted and followed for sufficient time to enable robust data to be gathered, from this and other sources, on the population status of Mountain Hares across Scotland (taking into account hare population cycles). If it is found that the population status of hares is ‘unfavourable’, our view is that option c) should then be considered as one of the responses that might be required to ensure remedial action. Any action in response to a declining population needs to be directed to the reasons why and places where the decline is taking place; these might not necessarily be related to grouse moors.

Medicated grit

The use of medicated grit is already partly controlled by the laws concerning prescription-only medicines, but some further regulation is recommended. This is an area where a voluntary Code of Practice seems appropriate at present, but tighter controls are desirable. If after five years or less of introduction of the Code, non-compliance is widespread or if at any time improved understanding of the position suggests that the risks are substantial, the option of introducing a licensing system should be considered.

Our recommendation of a voluntary Code of Practice on the use of medicated grit, overseen by SNH and prepared in consultation with stakeholders, is deemed to be an appropriate response to the currently perceived level of risk, subject to further understanding of the levels of compliance and environmental and health risks of the use of medication. Items to be included in the Code of Practice on the use of medicated grit:

• Veterinary surgeons and grouse managers to collaborate on developing and delivering “Grouse Health Plans” which include evidence in support of use of medicated grit at appropriate scales across the estate;
• Gritting withdrawal period to be strictly observed and medicated grit always removed at least 28 days before Red Grouse are shot;
• All land managers using medicated grit to undertake training appropriate to their role. This to include whether treatment is required, option of gritting holidays and withdrawal 28 days before shooting, GPS mapping of grit trays/stations, and clear identification on the hill where medicated grit is used.

In addition to adherence to a Code of Practice, we recommend the following actions:

• Food Standards Scotland should undertake work to identify the levels of flubendazole residues in grouse in the food chain that are judged inimical to human health and establish appropriate monitoring;
• There should be wider CPD training for veterinary surgeons on the use of medicated grit;
• SEPA should initiate a desk-based study to determine the appropriate nature and extent of a monitoring programme to ascertain whether flubendazole residues exist in water bodies on or downstream from where it is being used, including in association with grouse moors, to conduct such a monitoring programme and to report on its findings;
• Future monitoring of Cryptosporidium in connection with use of medicated grit should be undertaken should the associated risk prove necessary.

If it is considered that the proven risks arising from current practice are such that stronger measures are required immediately, or if in future these are required because of either the level of non-compliance with the proposed Code or our changing understanding of the risks, then the current prescription system could be supplemented by a separate licensing system relating to the actual application of the grit. This would require the land-owner or designated land-manager to obtain a licence before putting out medicated grit, with conditions reflecting some or all of the elements noted in the recommendation on the use of medicated grit (e.g. training, preparation of grouse health plans and withdrawal periods).

Predator control

The control of avian predators is unlawful, although where problems arise intervention is possible under a specific or general licence. Licences under s.16 of the Wildlife and Countryside Act 1981 permit action to be taken against protected birds for various purposes including “for the purpose of conserving wild birds” and “for the purpose of conserving flora or fauna”. Licences cannot be granted “unless [SNH] is satisfied that, as regards that purpose, there is no other satisfactory solution”. Where particular species are perceived to be limiting the populations of Red Grouse and/ or other red or amber-listed ground-nesting birds, then greater use should be made of this power to authorise intervention, predominantly through non-lethal means but potentially extending to include lethal control where the predator species is widespread and has a strong population status.

The control of mammal predators is regulated by the laws on animal cruelty and controls on the sort of traps and snares that can be used, with new regulations on certain forms of traps in course of being implemented in accordance with the Agreement on International Humane Trapping Standards (affecting traps for stoats). The protected status of some predatory species (e.g. badgers) must also be taken into account. Increased regulation on the use of snares was introduced a few years ago and provides a model for other activities. For both cage traps and spring traps, in addition to the existing rules on the nature of the trap that can be used, further measures are recommended.

The lawful use of traps to catch corvids can result in the capture of, and on occasion injury to, raptors and other traps can also cause unintended harm to wildlife. The existing regulation on traps should be supported by a training requirement on those who set them. In keeping with the requirements for snares, new legislation should be introduced to make it a legal requirement for training so that it becomes an offence to set or operate a trap without an operator having successfully completed a course run by an approved and accredited body and dealing with the relevant category of trap (cage and/or spring). Any operator should undergo refresher training at least once every ten years. A trap operator who has successfully completed a relevant trap training course should apply to their local police station for a unique identification number which must be attached to all traps that are set.

Monitoring and enforcement

As noted in the more general discussion on regulation, in all cases any legislative scheme will have to identify the regulatory body – in these cases SNH is the obvious choice – and ensure that it has the appropriate powers, including powers of entry to land, in order to monitor compliance and gather evidence for enforcement activity. In keeping with regulatory practice in other areas there should be scope for flexibility in the response when non-compliance is discovered, including adjustments to the terms of a licence, stricter scrutiny of any licence application (and loss of the ability to rely on any automatic ‘general licence’ if this is available) and ultimately suspension or revocation of the licence for serious or persistent non-compliance. Activity which does not fall within the terms of the licence would be unlawful and thus a criminal offence, although prosecution is unlikely to be the first resort in enforcement. Given the significance of the regulatory powers involved, an appeal mechanism should be provided, probably to the Scottish Land Court (as is already the route for certain matters under the Wildlife and Countryside Act 1981).

Training

In several places we recommend approved and accredited training for those responsible for certain activities. We recognise that the practical management of land involves many people, with varying degrees of control over what is to happen and some of whom are involved only on specific occasions when an increased workforce is required for a particular task, e.g. in looking after muirburn. The training requirement should not be applied to all those involved in any capacity but to those in a position to control the activity. This may require default responsibility falling on the owner or occupier, but their responsibility would not necessarily to be trained themselves, but to have formally identified the person who has de facto control of the activity and ensured that s/he has the requisite training. The aim is to ensure that the training requirement is satisfied at the most appropriate level, and some further work will be required with employers and training providers on specifying the content of training and what level of training provided by whom will be appropriate (e.g. anyone who applies pesticides as part of their professional activities should hold a recognised specified training certificate). The implications for the contractual arrangements between owners and staff or contractors may require consideration as detailed rules are formulated.

Recommendations in section 6 – summary list

17. That muirburn should be unlawful unless carried out under a licence.

18. That SNH embark on achieving a count of Mountain Hare numbers across Scotland, not just on grouse moors nor just where they are being shot.

19. That a Code of Practice on the management of Mountain Hares, including legally enforceable reporting requirements, should be developed.

20. That should the conservation status of Mountain Hares prove to be ‘unfavourable’ then a licensing system for the shooting of Mountain Hares should be introduced.

21. That Food Standards Scotland should undertake work to identify the levels of flubendazole residues in grouse in the food chain that are judged inimical to human health and establish appropriate monitoring.

22. That there should be wider CPD training for veterinary surgeons on the use of medicated grit.

23. That SEPA should initiate a desk-based study to determine the appropriate nature and extent of a monitoring programme to ascertain whether flubendazole residues exist in water bodies on or downstream from where it is being used, including in association with grouse moors, to conduct such a monitoring programme and to report on its findings.

24. That future monitoring of Cryptosporidium in connection with use of medicated grit should be undertaken should the associated risk prove necessary.

25. That new legislation should be introduced to make it a legal requirement that it becomes an offence to set or operate a trap without an operator having successfully completed a course run by an approved and accredited body and dealing with the relevant category of trap (cage and/or spring). A trap operator who has successfully completed a relevant trap training course should apply to their local police station for a unique identification number which must be attached to all traps that are set.

26. That any operator dealing with the relevant category of trap (cage and/or spring) should undergo refresher training at least once every ten years.