Grouse Moor Management Group: report

7. Recommendations: consolidated list

This section brings together recommendations in sections 5 and 6 into a consolidated list.

General

1. We unanimously recommend that a licensing scheme be introduced for the shooting of grouse if, within five years from the Scottish Government publishing this report, there is no marked improvement in the ecological sustainability of grouse moor management, as evidenced by the populations of breeding Golden Eagles, Hen Harriers and Peregrines on or within the vicinity of grouse moors being in favourable condition.

2. That a framework Code of Practice on grouse shooting be produced reflecting regulation specific to the sector and advising on best management practices. If statutory provisions are included, the Code would need approval by Scottish Ministers with having oversight and ownership.

Raptors and predation

3. That there should be no change in the legal status of any bird-of-prey species in Scotland.

4. That where particular species are perceived to be limiting the populations of red and or amber-listed ground-nesting birds, including Red Grouse, greater use should be made of the Wildlife & Countryside Act 1981 s16. This existing licensing legislation allows SNH to permit under licence a range of lethal and non-lethal management options.

5. That the brood management programme for Hen Harriers in England should be monitored, and if it is deemed successful in producing an increase in the breeding numbers and distribution of Hen Harriers, then consideration should be given to introducing a similar programme in Scotland.

6. That as much as possible should be done to change the culture of grouse moor management to accept more loss of grouse to avian predators and to allow these predators to nest locally.

7. That SNH, possibly through their licensing agent the BTO, or directly, ensure that the licences issued for the satellite-based tracking of tagged raptors includes a condition that commits the data holder (i.e. the owner of the tag) to: (a) being listed on a register of data holders which SNH, BTO and Police Scotland have access to; and (b) cooperate expeditiously with Police Scotland and SNH in sharing data and associated information regarding tagged birds found dead or missing in suspicious circumstances. That on receipt of shared data and associated information, Police Scotland expeditiously processes the shared data and associated information to determine whether or not it warrants referral to the Crown Office and Procurator Fiscal Service. The current priority raptors for data sharing would be Golden Eagle, Hen Harrier, Red Kite, Peregrine, White-tailed Eagle and Goshawk.

Muirburn

8. That muirburn should be subject to increased legal regulation. This should apply to all muirburn, not only on grouse moors.

• That the Scottish Government should increase regulatory control relating to the Muirburn Code;
• That SNH and Rural Payments and Inspections Directorate (RPID) should be given power and resources to monitor adherence to the Muirburn Code by any land manager^[5] carrying out muirburn, whether or not they are in receipt of muirburn-related support payments;
• That increased training should be required for any land manager directly involved in setting and managing fires;
• That the Muirburn Code should be subject to regular updates to represent best available knowledge and consideration of predicted changes in climate that might require additional changes to parts of the Code. That this process be subject to expert peer-review;
• That a fire danger rating system for Scotland should be introduced to better support decision-making about where and when to burn;
• That the Scottish Government explore changes to the current RPID support payments that would discourage malpractice more effectively than the current very limited breach and penalty powers;
• That the Muirburn Code published in 2017 should be updated to include the Supplement to the Code: A guide to Best Practice.

Mountain hares

9. That the shooting of Mountain Hares should be subject to increased legal regulation.

• That, where the shooting of Mountain Hares is to be undertaken, land managers should be required to report annually to SNH the number of Mountain Hares present (using a standard counting method) and numbers shot on an area of land;
• That shooting of Mountain Hares should only be undertaken at the times licensed and in compliance with a Code of Practice on the management of Mountain Hares;
• That, to address concerns about the reliability of Mountain Hare numbers, SNH should generate a more robust evidence-base on the distribution, numbers and management influences on Mountain Hares to better inform management as well as Article 17 reporting to the Scottish Government and the EU;
• That adaptive management research should be used to determine relationships between local populations and numbers killed, to help inform and improve management recommendations over time to promote favourable conservation status for Mountain Hares in Scotland.

Medicated grit

10. That the use of medicated grit should be subject to increased regulation.

• That SNH, following consultation with other appropriate bodies, should publish a Code of Practice on the use of medicated grit;
• That all land managers using medicated grit to reduce the worm burden in Red

Grouse populations should adhere to the Code of Practice on the use of medicated grit;

• That SNH should have powers to check compliance with the Code on the use of medicated grit;
• That if, after five years or less, following introduction of the Code, non-compliance is widespread, the option of introducing increased legal control should be considered.

Regulation

11. That in accordance with the remit to “ensure that grouse moor management continues to contribute to the rural economy” we do not recommend that grouse shooting be banned.

12. That, in light of announced consultations, the following recommendations of the Wildlife Crime Penalties Review Group (Poustie Review) should be enacted:

Levels of fines and custodial sentences

• That maximum penalties available on summary conviction at least for the more serious offences, are raised to at least a £40,000 fine and up to 12 months imprisonment.
• That conviction on indictment is more commonly made available across the range of wildlife offences with a maximum term of imprisonment of up to 5 years. This would not necessarily require a stand-alone Act but could be achieved as part of the next Criminal Justice or Criminal Proceedings Act.

Alternative penalties

• That forfeiture provisions are extended and these and other alternative penalties are made consistent across the range of wildlife legislation as appropriate.
• That where a firearm or shotgun is involved in the commission of a wildlife crime, the court should have the power to cancel the relevant certificate, as is already the case in the Deer (Scotland) Act 1996.
• That consideration should be given to amending firearms legislation which is reserved to the UK Parliament to allow the Chief Constable to withdraw a shotgun certificate where such a weapon has been involved in the commission of a wildlife crime not just on grounds of public safety but also on the grounds of a threat to the safety of wildlife.

Sentencing Guidelines

• That with the establishment of the Scottish Sentencing Council in October 2015, sentencing guidelines are developed for wildlife offences in order to enhance the consistency and transparency of sentencing.

13. That a wider range of moorland management activities should become eligible for RPID support.

14. That land managers should undertake training on relevant land management activities (muirburn, use of medicated grit, managing Mountain Hares, corvid control and setting of traps) and refresher courses when required, to ensure compliance with relevant Codes of Practice.

15. That an accreditation scheme on grouse moor management should be developed following widespread consultation across the grouse shooting sector.

16. Given the fragmented nature of current wildlife legislation, we recommend consolidation of this area of law (as recommended by Poustie).

Recommendations on land management practices

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.

Appendix 1: Licensing grouse shooting: arguments in favour and against

The remit for this review invited us “to advise on the option of licensing grouse shooting businesses” and this is an issue to which we have given particular attention. Any assessment of the position is deeply affected by the lack of clear evidence on many aspects of the background – ecological, social and economic – and on how changes in the regulatory framework will alter the behaviour of key parties. An important point to appreciate is that this issue should not be viewed in isolation but is affected by action taken in relation to other aspects of this review, and to other reviews (e.g. Poustie, Deer Working Group), as well as by the wider choices that affect the policy and finances for various uses of land and the consequences of their implementation. Nevertheless, the discussion below endeavours to maintain a narrower focus, summarising the main arguments for and against introducing a licensing system for grouse shooting.

A preliminary issue to note is that there is no clear definition of ‘grouse shooting businesses’, since shooting on any land may be intermittent, depending on local conditions, and may be undertaken on a non-commercial basis. Consideration of a licensing scheme has therefore proceeded on the basis that the activity requiring a licence would be the killing of grouse. This avoids difficult questions in defining and identifying a ‘grouse shooting business’, a ‘grouse moor’, or in distinguishing between where land is managed for driven shoots (which tends to encourage the more intensive styles of management) as opposed to walked-up shooting.

A radical alternative, adopting an approach taken in many other countries, would be to shift the focus of controls on hunting away from the land where the hunting takes place and its owner and onto the hunter individually, see the SNH report A Review of Game Bird Law and Licensing in Selected European Countries (Pillai & Turner, 2017). Across the UK, hunting laws derive from the property rights of landowners, including the entitlement to hunt on their land, and the right to control who is allowed to take game on their land, with the landowner’s control over access being the major constraint on hunting activity; the same applies to much of the law on fishing. A different perspective is to focus on the individual hunters and place controls and responsibilities on them, e.g. training and reporting requirements and limits on bag-size, with issues relating to access to land fulfilling a secondary role. Introducing such a change for grouse shooting alone would only increase the undesirable fragmentation of the law, with a clash between two underlying approaches to regulation, and accordingly is not further considered here. Reflection on the fundamental structure of the controls on hunting would be appropriate for a much deeper and more far-reaching review of the law and policy affecting that activity and related land use.

Arguments in favour of and against licensing have been provided by individual members of the Group. Viewed together, they should not be seen as representing the views of the whole Group. For the sake of a clear statement of the range of views reflected, rather than adding careful qualifications to almost every point, the arguments are phrased in terms of what ‘will’ and ‘would’ occur in certain circumstances even though they are often matters of speculation and the likely outcomes are legitimately contested. Accordingly, what follows is stated in more definite and absolute terms than is strictly justified, on both sides of the argument, and does not represent the conclusions of the Group as a whole on any individual matter.

Arguments in favour

1. Grouse shooting and grouse moor management are activities that have a major impact on landscapes, habitats and the populations of wild creatures, but operate under fragmented legal regulation. Some aspects are controlled, e.g. close seasons for shooting and muirburn, but there are no limits on the intensity or forms of management, on the side-effects on other creatures, or on bag sizes. An activity that has such a major impact on our environment should be subject to a degree of control and central record keeping.

2. Although several forms of unacceptable conduct (e.g. killing raptors) have been criminal offences for years, the law is regarded as not being effective. Enforcement is difficult, requiring admissible evidence of specific wrong-doing against particular individuals. Although some improvements in detection and enforcement might be made, these may be matched by the adoption of new methods of offending and the inherent difficulty will remain. Enabling grouse shooting to take place at a fairly intensive level is perceived as a driver behind unacceptable practices, and by threatening the continuation of this activity, an effective deterrent would be provided. Land-owners/managers would be led to do their utmost to see that unacceptable conduct does not occur (even more so than the current vicarious liability which can only take effect when the evidential burden for a successful prosecution has been satisfied).

3. Under a licensing scheme there can be a graduated scale of consequences when inappropriate conduct is detected (e.g. additional reporting requirements, tighter conditions and ultimately revocation of the licence). These can be imposed on the basis of the civil burden of proof and a cumulative record of misbehaviour (as with the current rules for revoking a general licence under the Wildlife and Countryside Act 1981), avoiding the almost overwhelming difficulty of proving specific wrong-doing beyond reasonable doubt.

4. A licensing scheme need not impose substantial additional burdens for most operators, and in any event most substantial land uses, e.g. agriculture, already require some administrative burden, although often related to receipt of financial support. More onerous controls might be imposed only where required in view of particular problems that have been identified.

5. Media attention has been drawn to the activities of some grouse moor managers, mainly over the suspected killing of protected birds of prey, but also over the large-scale killing of hares and other animals, and over other aspects of moor management, such as muirburn, peat destruction and use of medicated grit. Some of these activities have repercussions well beyond the boundaries of grouse moors. The introduction of a centralised licensing scheme would help to reassure the public that government is taking these concerns seriously.

6. In a complex area, a licensing scheme offers greater flexibility rather than the blunt instrument of using the criminal law to prohibit particular unacceptable practices, especially when these may be hard to define and prove in a way that allows the criminal justice process to operate. The flexibility is also beneficial in terms of adopting an adaptive management approach, responding to our changing understanding of the position and the factors that influence it, and of incorporating a number of important public objectives (e.g. climate concerns as well as biodiversity).

7. A transparent licensing scheme would assist those in the industry who already observe high standards. Obtaining and keeping a licence would be a visible sign that the activity is being sustainably managed in an acceptable way and that land is being managed appropriately, directing any public criticism onto those who are not doing so. The potential for meaningful consequences if standards slip would also offer public reassurance. This would help to take the heat out of current polarised discussions where all grouse moors are treated alike.

8. Existing controls are not proving effective in guaranteeing appropriate and sustainable management (although what is ‘appropriate and sustainable’ can be contested). Codes of Practice can capture what constitutes good practice but do not ‘have teeth’. Given the very varied financial positions and ambitions of grouse moor owners, financial incentives and penalties such as are widely used in agriculture and forestry will not always be effective. A licence allows for sanctions to be imposed for non-compliance, without every minor transgression necessarily amounting to a criminal offence.

9. A licensing scheme would allow for information to be gathered at national level, filling the information gaps which this review has shown, including the number, area and locations of grouse moors, the management activities undertaken and the number of animals present and killed. This would provide the basis for sound science to be used in future decision-making at a local and national level and enable an adaptive management approach to be taken, responding to changing circumstances.

Arguments against

1. The main forms of unacceptable behaviour are already unlawful and the emphasis should be on detecting and punishing the wrong-doers, not additional controls on others. The difficulties of effective enforcement are recognised, but there are improvements that can be made and these should be tried before more regulation is placed on all grouse moor owners, regardless of their behaviour.

2. The activities which are already criminal are being carried out by those who are consciously and deliberately breaking the law. Those willing to break the law today would not be deterred by a further layer of regulation, especially when it does not target them directly. Vicarious liability already places land-owners/managers at risk if they do not take steps to prevent offending by those under their control.

3. The other problems that have been identified in relation to grouse moors are related to aspects of specific land management practices (muirburn, medicated grit, etc.) and there are other more precisely targeted and arguably less burdensome measures to tighten existing controls on these practices which should be tried first. Many aspects of grouse moor management are already affected by legislation. Similarly, there could be more robust use of existing powers (e.g. revocation of general licences under the Wildlife and Countryside Act 1981) to address local problems.

4. Any increased costs or operational constraints arising from a licensing system will fall on all operators, including the reputable and conscientious ones, whilst those individuals willing to break the rules are likely still to escape sanctions in the absence of an unfeasibly high level of effort in detection and enforcement.

5. To meet legal standards, the imposition of any meaningful sanctions still requires a substantial evidential basis, so that although there may be no need to meet the full criminal threshold, there will remain a substantial challenge in establishing the case for stronger intervention. The introduction of a licensing system will not solve the problem of detecting and attributing wrong-doing.

6. A workable licensing system could be devised, but there would be difficult design issues and administrative costs and burdens on the licensing body and those licensed. It would be a disproportionate imposition in policy terms. There are other more precisely targeted and less burdensome measures which should be tried first. Moreover, as a restriction on the freedom of land-owners to enjoy their property as they wish, any licensing scheme may be subject to challenge under the Human Rights Act 1998. Like most forms of environmental regulation, a well-designed scheme should be legally acceptable, but there is a risk of legal challenge that would be a distraction. Dealing with these issues would divert time and resources from making a difference on the ground (c.f. the prolonged litigation over minimum pricing of alcohol).

7. Licensing for grouse shooting would single it out from many other forms of land use that can also have substantial environmental impacts (arable farming, forestry), but are not subject to a regulatory scheme that would not just control particular operations but could bring the underlying land use to an end. Similarly, other forms of shooting (e.g. for pheasants and partridges) are not currently subject to any regulation of the activity as a whole (as opposed to specific aspects of how it is carried out). Licensing can be seen in two very different ways: as a useful regulatory device, or, since the starting point is the outlawing of the activity (unless a specific exception is made), some people may perceive licensing as identifying grouse shooting as an inherently unwelcome activity to be tolerated only under strict conditions. For those people, such a development will not promote a cooperative atmosphere nor the search for mutually accepted solutions. The industry already feels itself under attack and even vulnerable to malicious interference as evidenced by damage to and tampering with snares, traps and cages which are often reported to the Police. Should a licensing scheme be introduced, the grouse sector fears that the incentive for malicious interference could well increase.

8. Although there are still some problems, much of the industry is alert to changing attitudes and conservation needs, and is responding with various measures already in train, e.g. the increased training for gamekeepers that highlights legal and conservation responsibilities, and initiatives such as the East Cairngorms Moorland Partnership.

9. Any increased demands in terms of regulation and implementation costs (e.g. time devoted to a licence application and record-keeping) would have an adverse effect on investment and viability, unless the benefits are greater than the costs. While some estates have wealthy backers, for others grouse shooting is one of several elements in an integrated management and financial system, and any additional costs may threaten the enterprise as a whole unless they bring greater direct benefits.

10. A licensing system that has the ultimate sanction of removing the right to shoot grouse (even if only in extreme circumstances) makes any investment in a grouse moor more precarious than in the absence of a licensing requirement and therefore might make it less likely to happen. The grouse industry is a major reason for investment in some rural areas, sustaining many jobs and services in those areas. This investment comes from the private sector with virtually no state support, whereas alternatives such as forestry and farming can in most cases attract substantial public funding.

11. Recent decades have seen a decline in the area of land managed as grouse moors and therefore of the habitat they provide, which is beneficial for some species other than grouse. Any measure that risks a decline in active management is likely to affect the state of the land in question and have an effect on neighbouring land as well (e.g. in relation to predator numbers) and will be very likely to lead to a further decrease in the area of managed moorland.

12. It is not clear that there are other land uses available for land currently used as grouse moor which can provide the same environmental, economic and social benefits at such low cost to the public purse.

13. With less investment in grouse moors generally and the risk of fewer grouse moors in total, there would be a significant effect on biodiversity (e.g. nesting waders). No other upland activity is likely to carry out significant predator control.