The land of Scotland and the common good: report

Section 32 - Wild Deer

1 Scotland has two species of native deer, red deer and roe deer. There are also two non-native species of wild deer, sika and fallow, which have become naturalised from past escapes and introductions. The overall population of wild deer in Scotland was estimated by SNH in 2011 to be over 750,000 (400,000 red, 350,000 roe, 25,000 sika, 2,000 fallow). ^[1] The populations of all these deer species are both increasing and expanding their range. Adult deer have no natural predators in Scotland and the populations are usually managed by culling. The level of the annual cull of deer in Scotland has increased over the years and is now around 100,000 deer a year. ^[2] This includes around 60,000 red deer as well as over 30,000 roe deer.

2 In Scots law, wild deer belong to no-one until they are 'rendered into possession' by being killed or captured by someone. By the 18th century, land owners had established that no-one could hunt wild deer over any land without the permission of the land owner. This remains the basic position. The right to hunt deer goes with the ownership of land. However, the owner's right is based on the ability to exclude others and is an ancillary benefit of land ownership, rather than a distinct property right like that for salmon fishing discussed in the previous section. Legislation has also given authority to shoot deer to others without the permission of a land owner, for example, to agricultural tenants and to Scottish Natural Heritage ( SNH) as the public deer authority.

3 The submissions to the Review Group and the evidence to the Scottish Parliament's Rural Affairs, Climate Change and Environment ( RACCE) Committee's recent short inquiry into deer management, reflected that there are a diverse range of issues in Scotland resulting from a lack of adequate culling of wild deer populations. ^[3] There is also widespread recognition of the need to improve the management of these populations in the public interest to reduce their impacts, as reflected in the Scottish Government's response to the Committee's conclusions. ^[4]

4 The Review Group has been struck during its own investigations by the limited progress in addressing some of the issues over the management of wild deer in Scotland, particularly red deer, despite many years of debate over these issues.

32.1 Background

5 The management of wild red deer has been an issue in Scotland for the last 200 years. As noted above, land owners had established a monopoly over hunting deer on their land by the 18th century. Then, from the late 18th century and throughout the 19th century, Highland land use became increasingly dominated by large estates managed for deer stalking. The management of these open hill areas, referred to as deer forests, resulted in a substantial increase in the number of red deer. This gave rise to issues over the need to protect the interests of agricultural tenants and crofters from marauding red deer. While the extent of deer forests started to reduce from the First World War, issues over protecting agricultural interests continued. There were also increasing issues over the need to protect forestry interests from the high numbers of red deer, as the Forestry Commission and other land owners implemented the government's post war policy to expand the nation's timber resources.

6 Despite the impact of these issues on the public interest, the influence of estate owners meant that no statutory framework to regulate deer management was put in place until after the Second World War. There were seven separate government inquiries into what was known as 'the red deer problem' between 1872 and 1954, before the Deer (Scotland) Act 1959. ^[5] This Act, amongst other provisions established the Red Deer Commission ( RDC), introduced close seasons for red deer, consolidated the rights of owners and occupiers to kill deer to protect agricultural and forestry interests, introduced authorisations for out of season and night shooting, empowered the RDC to kill deer on its own account and to require any owner of land to submit a Cull Return detailing the deer shot on the owner's land in the previous year (1st April to 31st March). The Act also empowered the RDC to organised voluntary Control Agreements with land owners to reduce deer numbers and to instigate a compulsory Control Scheme if the voluntary approach did not succeed. Other provisions included specifying the ways deer can be killed legally and a licensing system for venison dealers.

7 Many of the basic components of the 1959 Act are reflected in Scotland's current primary deer legislation, the Deer (Scotland) Act 1996 as amended. Another factor of continuing significance which was not part of the 1959 Act, was the approach adopted by the RDC when it was formed, of encouraging voluntary Deer Management Groups ( DMGs) of local land owners. These were intended to promote cooperation between land owners and improve the standards of local deer management. The first DMGs were formed in the 1960s and there were 39 in the Highlands and Islands by the end of the 1980s. ^[6] There were 42 DMGs in these upland areas in 2013 and a further seven in lowland areas. ^[7] ( Fig. 40)

8 The Deer (Scotland) Act 1996 consolidated the previous amendments to the 1959 Act, including legislation in 1982 that had made the RDC responsible for all species of deer in Scotland. ^[8] The 1996 Act also replaced the RDC with the Deer Commission for Scotland ( DCS) with contemporary arrangements for appointing the Commissioners, and added the protection of natural heritage and public safety interests to the responsibilities of the DCS. The basic framework of the 1959 Act continued including the provisions for Control Agreements and Control Schemes. By 1996, there had not been a compulsory Control Scheme and there has not been one since, despite all the issues over serious damage by deer. This has been because both the RDC and DCS considered the nature of provisions in the legislation made them unworkable in practice. ^[9]

9 The 1996 Act was amended by legislation in 2010 to transfer the Deer Commission's responsibilities to Scottish Natural Heritage ( SNH). ^[10] Further important amendments to the 1996 Act were made in the Wildlife and Natural Environment Act 2011, including the addition of an urban competence to SNH's deer management responsibilities and the introduction of a voluntary Deer Management Code. The 2011 Act also amended the 1996 Act by streamlining SNH's powers to implement compulsory Control Schemes to reduce deer numbers to make them more usable. The Review Group noted in the evidence to the RACCE Committee that SNH anticipates testing these revised powers before long. ^[11] The aim of public policy under the 1996 Act as amended is now the sustainable management of Scotland's wild deer populations, with that defined in the Deer Management Code as " managing deer to achieve the best combination of benefits for the economy, environment, people and communities now and for future generations". ^[12]

32.2 Current Position

10 For over 50 years since the 1959 Act, the RDC, DCS and now SNH have each consistently called for reductions in deer numbers to reduce their impacts on an expanding number of public interests. However, during that period, the overall numbers of wild deer in Scotland have continued to increase and their range has continued to expand. The practical context of deer management has also changed significantly over the last 50 years. Traditionally the focus was on red deer on the open hill in the Highlands and most of the annual red deer cull is still on the open hill. However, a substantial proportion of the red deer population is now in Scotland's woodlands and a majority of the annual cull of deer in Scotland each year is shot in woodlands. ^[13] Deer are naturally woodland animals and the expansion of tree cover over the last 100 years from 5% to 17% of the land area, has played a major role in the expanding range of deer in Scotland. This has meant that the need to manage deer numbers has spread into more lowland areas, where there are much more diverse and smaller scale patterns of land ownership. It now also involves the need to control roe deer in an increasing number of peri-urban and urban locations.

11 The expansion in the range of Scotland's native deer species has brought some benefits, in that they are a natural component of woodlands in Scotland and can be a valuable economic resource. However, there is also now a need to manage deer numbers across Scotland to control their current and potential negative impacts on public interests including, for example, environmental damage to habitats, economic damage to crops and the social costs which can result from deer-vehicle collisions. The nature of many of the impacts of deer damage on public interests and other related factors mean that it is difficult to calculate the overall costs and benefits of the current management of wild deer in Scotland in financial terms. ^[14] However, the need to increase deer culls in some areas to reduce their impacts on environmental, economic and social public interests in those areas, is evident from the RACCE Committee inquiry and other sources.

12 The RACCE Committee inquiry focused on the role of the voluntary Deer Management Groups ( DMGs) in delivering improved deer management, and set a target that these DMGs should each have a Deer Management Plan for the area it covers, by the end of 2016. The Scottish Government agreed with the Committee "that the end of 2016 would be a suitable juncture to consider progress and look to take action if the current voluntary system has not produced a step change in the delivery of effective deer management". ^[15]

13 In response to this deadline, the Association of Deer Management Groups ( ADMG) is actively encouraging DMGs to develop Deer Management Plans ( DMPs) and consulting on a DMG benchmark standard for the operation of the DMGs. However, the evidence to the RACCE Committee showed that, despite all the efforts of some in the DMG movement, there has been very little, if any, significant improvement in the operation of DMGs since reports criticising their lack of progress in the previous two decades. ^[16] Also, while the RACCE Committee emphasised the need for DMGs to have DMPs, the clear evidence to their inquiry was that even where such Plans had been produced with public sector encouragement, the Plans were not then used or updated. ^[17]

14 Improvements in the operation of DMGs would be a positive development. However, these will not directly address the need to ensure adequate culls are carried out where necessary to protect public interests. In addition, DMGs are concentrated in the Highlands and based mainly around cooperation between relatively large scale land owners. There are few DMGs in the rest of Scotland, where that model is generally less directly applicable due to different patterns of land ownership and land use.

15 The Review Group considers that some improvements are required in the statutory framework governing deer management, both to enable the voluntary approach to work more effectively in the different circumstances across Scotland and to ensure that public interests are adequately protected in situations when it does not. The Group considers that the need for improvements to achieve this are important, to reduce the current costs of damage by wild deer and to support wider public policies for land use, including on-going forest expansion and a new emphasis on the health of ecological services provided by the environment.

16 The Group considers that the Scottish Government should be examining potential improvements to the statutory arrangements governing the management of wild deer in Scotland now, rather than waiting to the end of 2016. The Group considers changes are required independent of the degree to which the performance of DMGs improves in the coming years.

Next Steps

17 Scotland's existing statutory framework to ensure wild deer are managed in the public interest, shares many elements with the equivalent frameworks regulating the hunting of deer in other European countries. These include the regulation of the hunting seasons, permitted hunting methods, permitted weapons and ammunition, as well as the handling and disposal of venison. ^[18] Scotland is unusual in not requiring people to have a formal qualification to shoot deer, but it does have a voluntary system in place. While the Wildlife and Natural Environment (Scotland) Act 2011 left this as voluntary, it is anticipated that these qualifications will become a statutory requirement in due course in the interests of animal welfare and public safety.

18 The arrangements in different European countries have been recently reviewed, by dividing them into five models of deer management based on the degree of public interest regulation. ^[19] Scotland was in the least regulated model with the rest of the UK and Eire. The only other country in that category was Sweden, which has very different hunting traditions and systems.

19 The Review Group considers that a key distinction between the statutory frameworks governing deer hunting in Scotland compared to other European countries, is the lack of arrangements when necessary to ensure that appropriate numbers of deer are killed to protect public interests and deliver sustainable deer management.

20 At present, the Scottish Government considers that the voluntarily Deer Management Code " places very firmly a responsibility on all land owners to actively think about how they engage with and manage deer and whether that requires collaboration". ^[20] There is, however, no requirement on land owners to control deer numbers on their land where this is necessary to protect public interests.

21 The current arrangements mean that it does not necessarily matter to an owner of land whether or not they choose to cull any deer on their land, in that there are, essentially, no direct consequences for an owner if deer which use their land are damaging public interests. This has led to suggestions that the voluntary responsibility of land owners in the Deer Code should be converted to a statutory duty. However, the Review Group considers that the need is for improvements to the regulatory framework to encourage the voluntary approach to work more effectively and enable adequate culls to be carried out when it does not.

22 Wild deer are part of the public domain and the current legislation requires Scotland's deer populations to be sustainably managed in the public interest. The management of wild deer is conditional on the public interest, including factors such as protecting animal welfare and public safety and preventing damage by deer. These public interests now define the carrying capacity of land for deer and correspondingly, whether more deer might need to be culled in some situations to protect these interests. The Review Group considers that the responsibility rests with the public interest through SNH as the public deer authority, to determine appropriate cull levels in different locations to ensure that public interests are adequately safeguarded.

23 Scotland's deer populations occur in relatively distinct areas, for example, as reflected in the pattern of DMGs. The Review Group considers that SNH should be responsible for determining the cull levels required in the public interest in each of these areas, and in different parts of them where there may be particular issues to address. The Group considers that this improvement to the current framework, would provide a much clearer context for deer managers determining appropriate culls and cooperating with neighbours over achieving those culls if necessary.

24 The Review Group also considers that a second improvement should be a requirement for land owners who intend to cull wild deer on their land, to apply to SNH for a consent for the number of deer they plan to cull. The Group consider that it is an anomaly that, under the current arrangements, there is only an obligation on land owners, through the system of statutory cull returns, to tell SNH how many deer they have shot in the past year. The Group considers that land owners should, as part of the system, also have to apply to SNH with the number of deer that they plan to shoot in the coming year. This will enable SNH to identify situations where it considers that proposed culls will not be sufficient to protect public interests and to seek a higher cull. The existing annual cull returns then enable SNH to monitor the extent to which land owners are achieving the culls required to protect public interests.

25 The requirement for land owners to apply for a consent for the number of wild deer they plan to cull should place little extra burden on land owners. Those with deer on their land should be planning the target number of deer that they intend to cull in any event, and applying for a consent would be similar to other consents required in the public interest, such as for water use and tree felling. Many owners of woodlands and forests also already have, for example, agreed deer cull targets as part of Forest Plan contracts with Forestry Commission Scotland ( FCS).

26 While SNH can already require cull returns from land owners that they identify from venison dealer records as culled deer, SNH should also be able to require cull plans from the owners of land where no deer are being culled and where SNH consider there should be a cull to protect public interests. If the owner does not want to be responsible for the cull, SNH should be able take over the responsibility for achieving it. There are, for example, many smaller scale land owners in lowland areas where deer now need to be culled, who may have neither the capacity nor interest to undertake it. While there is scope to encourage DMGs or groups of hunters to manage local culls where an owner opts out, there can be situations where SNH may decide to carry out culls directly using either its own staff or other appropriately qualified hunters. Around urban areas is a particular example, because of the public safety concerns. The Scottish Government is already by far the largest deer controller in Scotland, with FCS killing around one third of the 100,000 deer shot in Scotland each year.

27 The Review Group considers the two types of changes proposed would improve the current statutory framework by helping to promote more sustainable deer management. There would be a clearer set of public interest standards to be met through the cull levels set locally by SNH to safeguard public interests, and also a consent system to ensure planned culls are at an appropriate level to achieve that.

28 These proposed changes might be seen in the context of this Report, as having some parallels with the improved statutory framework put in place for the management of Scotland's freshwater as another national common property resource. As described in Section 30, legislation now defines public interest standards for any use of these water resources by land owners and a system of consents to use these resources to ensure these standards are met.

29 Introducing a system of standards and consents to cull wild deer as a public resource, includes the possibility of consents not being granted if an owner of land is consistently failing to cull the number of deer required to protect public interests. Land owners should have the first option in culling wild deer on their land. However, if a land owner consistently chooses not to meet the standards required for sustainable deer management in the public interest, they should no longer have a monopoly over hunting wild deer on their land. If this situation occurred, SNH should be able to take over responsibility for the cull required, by either carrying out the cull itself or allocating it to the local DMG or other suitably qualified hunters.

30 Improved culls will reduce the costs of adverse impacts on public interests, and costs could be recovered, where appropriate, if SNH has to take responsibility for culls. In Section 25, the Group considers the current exemption of deer hunting from sport rates and the possibility of using these as an incentive to encourage appropriate cull levels to protect public interests.

31 The Review Group considers that changes to the current statutory framework along the lines proposed, with clearer public interest cull requirements and a system of consents, would provide an improved context to enable the voluntary approach to work more effectively. Wild deer are a natural asset and hunting deer in Scotland's expanding areas of forests and woodlands, whether for recreational purposes or as part of work, should be an activity that continues to involve an increasing number of people.

32 The Review Group considers that Scotland's populations of native red and roe deer are important national assets that should be sustainably managed in the public interest. The Group recommends that improvements should be made to the current statutory framework governing the hunting of deer in Scotland to ensure appropriate culls are carried out to adequately safeguard public interests.