The management of wild deer in Scotland: Deer Working Group report

Introduction

The Group

1 The Scottish Government concluded that significant issues remain over the management of wild deer in Scotland, following reports on deer management from Scottish Natural Heritage (SNH) in 2016 and the Scottish Parliament’s Environment, Climate Change and Land Reform Committee in 2017.^[1],

2 In June 2017, the Government announced its intention to set up an independent working group to examine current issues over the standards of deer management in Scotland and recommend changes to help resolve these issues in ways that promote sustainable deer management.^[3]

3 The establishment of the independent Deer Working Group (DWG ) was then announced by the Cabinet Secretary for Environment, Climate Change and Land Reform in October 2017.^[4] The Group’s Terms of Reference (Annex 1) included its remit:

“The Group will make recommendations for changes to ensure effective deer management in Scotland that safeguards public interests and promotes the sustainable management of wild deer.”

4 The members of the DWG appointed by Scottish Ministers were Simon Pepper OBE (Chairman), Andrew Barbour and Dr Jayne Glass. A fourth member, Robin Callander, was appointed as an independent Special Adviser to provide the Group’s secretariat with the part-time support of a member of SNH staff, Becky Shaw, as the Group’s Secretary. In addition, two External Advisers were appointed to assist the Group with its work: Richard Cooke and Malcolm Combe. Information about the members and advisers is given in Annex 2.

5 The Group’s work was led by its Chairman, Simon Pepper. His sudden death some months before the Group had completed its report was both a tragic loss to his family and friends and a major loss for the Group. However, given the progress with the Group’s work by the time of his death, the Scottish Government and remaining members agreed that the Group would complete its Report in line as far as possible with the report that Simon Pepper had expected to deliver to the Government.

The Context

6 Four species of wild deer occur in Scotland: the two species of native wild deer, red and roe deer, and two non-native species, fallow and sika deer. One or more of these species now occurs more or less throughout mainland Scotland, as well as on some islands. The number of wild deer in Scotland is not known, but the indications are that the total could be approaching 1 million.^[5]

7 As wild animals, these deer belong to no-one until killed or captured and they are regarded as a national common property resource to be managed for the benefit of the people of Scotland.^[6] Adult deer have no natural predators in Scotland and their numbers need to be controlled to safeguard the welfare of wild deer populations and limit the physical damage that wild deer can cause to public and private interests.

8 The right to hunt wild deer generally goes with the ownership of land in Scots law. Well over 100,000 wild deer are currently shot in Scotland each year, producing an estimated annual harvest of over 3,000 tonnes of wild venison.^[7] This cull of wild deer each year might be considered in many respects to be Scotland’s largest annual wildlife management operation, excluding marine fisheries.

9 The wild deer in Scotland are naturally woodland species and most live in and around woodlands. Most of the annual cull also occurs in that environment. However, a substantial proportion of the wild red deer in Scotland live on open hill ground of moorland and mountains in the Highlands. In this Report, ‘the Highlands’ are defined as the land north of the Highland Boundary Fault and west of the eastern edge of the Grampian Mountains, and taken to include both the mainland and islands.

10 Debates about the management of wild deer in Scotland have been dominated since the 19^th century by issues over the damage caused by the high numbers of open hill red deer in the Highlands. Sixty years ago, when the Deer (Scotland) Act 1959 first introduced a statutory framework regulating the management of wild deer, the Act established the Red Deer Commission (RDC) and was only concerned with red deer.

11 The RDC’s responsibilities were expanded in 1982 to cover all species of wild deer.^[8] The 1959 Act was then amended and consolidated into the Deer (Scotland) Act 1996, which included the modernisation of the RDC into the Deer Commission for Scotland (DCS). The 1996 Act as amended remains the principal Act governing the management of wild deer in Scotland. However, in 2010, SNH replaced the DCS as the public body responsible for implementing Scotland’s deer legislation.^[9]

12 The change to SNH becoming the ‘deer authority’ in the Deer (Scotland) Act 1996 in 2010, was followed by further significant amendments to the Act in 2011.^[10] The Scottish Parliament’s Rural Affairs, Climate Change and Environment (RACCE) Committee then held a short inquiry into deer management in 2013 that was critical of the standards of management of the open hill red deer populations in the Highlands.^[11] The Scottish Government agreed with the Committee’s conclusion that the end of 2016 would be
a suitable juncture to review progress and, as a result, the Government asked SNH to re-assess the position in 2016 and produce a report on deer management in Scotland.^[12]

13 SNH’s report on deer management in 2016 followed the approach of characterising deer management in Scotland as consisting of upland deer management and lowland deer management.^[13] However, this is not a straightforward geographic division. SNH equates upland deer management with the management of open hill red deer in the Highlands and regards lowland deer management as deer management at “lower altitudes” in the Highlands and rest of Scotland.^[14]

14 When SNH’s 2016 report was published, it was the subject of an inquiry by the Scottish Parliament’s Environment, Climate Change and Land Reform (ECCLR) Committee. The Committee’s report concluded that further improvement was still required in the management of open hill red deer in the ‘uplands’, while also concluding that “There are significant challenges for deer management in lowland Scotland and the Committee is disappointed that there has been so little progress”.^[15]

15 The Scottish Government’s response in 2017 to the SNH and ECCLR Committee reports included setting up a Panel to be managed by SNH under the 1996 Act to advise on deer management in the lowlands, and also instructing SNH to reassess the management of open hill red deer in the uplands in 2019. In addition, the Government instructed SNH “to be proactive in ensuring the public interest is protected and to use the full range of enforcement powers in the Deer (Scotland) Act 1996 where appropriate”, and to submit a further report on deer management in Scotland to the Government in 2019.^[16]

16 As part of the same response, the Scottish Government also announced its intention to establish an independent deer working group. The Group was then given a distinct and broader role in examining the ongoing issues over the management of wild deer in Scotland.

17 SNH’s 2019 deer report for the Scottish Government, ‘Assessing Progress in Deer Management’, was submitted to the Government as the Group was very close to finishing this Report. The Group received pre-publication copies of SNH’s deer report and two SNH commissioned research reports due to be published with it.^[17], The Group has therefore aimed to update this Report with information from those reports where appropriate.

18 In addition to the new information about deer management that has become available during the Group’s term, the public policy context within which Scotland’s system of deer management operates has also continued to evolve. Two topics have been particularly prominent, the UK’s plans to leave the European Union or ‘Brexit’ and the Scottish Government’s response to climate change. The Group agreed with the Scottish Government that the continuing uncertainties over Brexit meant that possible implications for deer management in Scotland as a result of Brexit, was not a topic that could be considered in this Report.

19 The Scottish Government has had policies related to climate change for over 10 years. However, the Scottish Government’s focus on the need to develop and implement climate change mitigation measures has increased notably since the First Minister’s declaration of a climate emergency in April 2019 and the subsequent statement to the Scottish Parliament.^[19]

20 The Scottish Government’s planned climate change mitigation measures in rural Scotland include creating more woodland and improving the ecological condition of existing woodlands and other habitats. The Group considers that successful implementation of such measures has important implications for the present standards of deer management in Scotland, as discussed in this Report.

The Remit

21 The Group’s remit has already been quoted above, namely that: “The Group will make recommendations for changes to ensure effective deer management in Scotland that safeguards public interests and promotes the sustainable management of wild deer”.

22 The Group’s Terms of Reference also re-enforced that the Group should “consider the position with all species of wild deer in Scotland and the varying circumstances across Scotland in both the uplands and lowlands”.

23 In addition, the Operating Framework that the Government gave the Group to govern its operation as an independent working group, further clarified that the Group had “been established as a working group so that it can focus at a detailed level on the current statutory and non-statutory arrangements for deer management in Scotland, to make recommendations to fulfil the Group’s remit”.

24 The Group was therefore set the very broad and challenging task of reviewing how Scotland as a country manages the populations of wild deer that occur here, considering both the statutory and non-statutory arrangements in detail.

25 Scotland’s system of deer management involves, like those in other European countries, three basic components: property law, regulatory law and the non-statutory arrangements to support the implementation of the legislation and public policy. Scotland’s land laws and deer legislation are both devolved to the Scottish Parliament, though Westminster legislation and European regulations are relevant for some specific aspects of deer management.^[20]

26 The management of wild deer in Scotland has been a relatively frequent topic in the Scottish Parliament over the last ten years. This has included significant amendments to the Deer (Scotland) Act 1996 in 2010, 2011 and 2016, as well as inquiries by the RACCE and ECCLR Committees in 2013/14 and 2016/17 respectively. The wealth of papers and reports associated with those parliamentary processes provides an extensive record of the ongoing issues over deer management in Scotland.

27 The purpose of the statutory framework governing deer management in Scotland and associated non-statutory arrangements is to deliver the public interest. That overall public interest can be considered to be “the common good of the people of Scotland”.^[21] The

responsibility for determining the public interest at any point in time rests with the Scottish Parliament and Scottish Government as the country’s elected representatives.

28 The Group’s remit refers to both ‘effective deer management’ and ‘sustainable deer management’, which are both terms that have been used by the Scottish Government

and its agencies for many years to represent the public interest in the context of deer management.^[22] The remit also reflects the distinction between the two terms.

29 The definition of effective deer management is, as the remit indicates, deer management that ensures public interests are safeguarded from unacceptable levels of damage by deer. That is the immediate objective. However, it is to be achieved in ways that promote sustainable deer management as the ultimate goal of deer management in Scotland. Effective deer management is thus a basic requirement for achieving the longer term aim of sustainable deer management, which can be defined as deer management that achieves the optimum combination of benefits for the economy, environment, people and communities for current and future generations.^[23]

The Report

30 The Group’s remit required it to carry out an extensive review of Scotland’s current system of deer management and consider the existing statutory and non-statutory arrangements in detail. This Report therefore covers a wide range of different aspects of deer management, as reflected in its length.

31 In considering Scotland’s principal deer legislation, the Deer (Scotland) Act 1996, the Group learnt at an early stage that the structure of that Act and the particular terms of a number of its main provisions, could only be clearly understood by reference to its precursor, the Deer (Scotland) Act 1959.

32 The Deer (Scotland) Act 1996 was the product of a two stage parliamentary process at Westminster that involved amending the Deer (Scotland) Act 1959 and then consolidating those and earlier amendments into the 1996 Act. As a result, the 1996 Act still reflects the basic structure of the 1959 Act and incorporates a range of its provisions or amended versions of them.

33 This Report therefore includes accounts of the way that particular provisions in the 1996 Act have evolved since the 1959 Act, where the Group considers that is helpful to understanding the terms of the current legislation. For ease of reference, a list of the legislation directly related to deer management in Scotland over the last 60 years is included in Annex 3 and the Table of Contents for the 1996 Deer Act in Annex 4.

34 The submission in 2019 of the Group’s Report on its review of the management of wild deer in Scotland, coincides with the 60^th anniversary of the original 1959 Act. That Act was intended to resolve what was traditionally known as ‘the red deer problem’ and initially only covered protecting public interests from damage by red deer.^[24] Sixty years later, the debate about deer management in Scotland is still dominated by issues over the management of open hill red deer in the Highlands.^[25] However, during that time, the distributions and numbers of Scotland’s four species of wild deer have increased considerably and concerns over damage by wild deer are widespread. This includes damage to agriculture, forestry, the natural environment, parks and other recreation lands, as well as the growing number of road traffic accidents involving wild deer.

35 The Group’s Report has seven Parts each with a number of Sections. The first Part starts by considering three main factors that tend to influence the basic nature of a country’s system for the management of wild deer. The first two of these factors are aspects of property law - the legal status or ‘ownership’ of wild deer and the distribution or ‘ownership’ of deer hunting rights. The third factor is the extent and character of the statutory framework which regulates how and when deer hunting rights can be exercised, together with other associated measures.

36 The first Part of the Report then reviews the information available on the current national distributions, populations and annual culls of each of Scotland’s four species of wild deer, before considering both the statutory functions of the public authority responsible for implementing Scotland’s deer legislation and the range of public interests covered by that legislation.

37 The following two Parts of the Report review three key aspects of deer management. Part Two considers the standards of public safety and of deer welfare that should apply to deer management in all circumstances. The third Part considers the relationship of wild deer to the environments in which they occur and reviews the information available on the damage that deer can cause to different types of public interests in particular circumstances.

38 The fourth Part examines the compulsory powers that SNH has in the deer legislation as the ‘deer authority’, including both the powers to require information from land owners and occupiers and the powers to regulate deer numbers to protect public interests. The fifth Part of the Report then considers the policies and other non-statutory arrangements that the Scottish Government and SNH have put in place to complement the statutory framework.

39 In reviewing the existing statutory and non-statutory arrangements in the first five Parts of the Report, the Group makes a range of recommendations of varying degrees of significance depending on the topics involved. Those recommendations might be seen as modernising or updating the existing arrangements. In Part Six, the Group then discusses both the further refinements to Scotland’s deer legislation and the refocused approach in the Scottish Government and SNH’s non-statutory arrangements, that the Group considers necessary to deliver effective deer management that will protect public interests from unacceptable levels of damage by wild deer.

40 The final Part of the Report has two sections. In the first, the Group discusses the main conclusions from its review of Scotland’s system of deer management. The second section then provides a summary list of the Group’s recommendations to fulfil its remit to make recommendations that will “ensure effective deer management in Scotland that safeguards public interests and promotes the sustainable management of wild deer”.

Acknowledgements

41 This Report is dedicated to the Group’s Chairman Simon Pepper OBE, as a tribute to his lead role in shaping the Report before his sudden death. The other members of the Group all held him in the very highest regard.

42 The members of the Group are very grateful to everyone else who contributed to its work and in particular, would like to thank the staff at SNH for their very helpful assistance in responding to the Group’s formal Information Requests and other questions. We are also especially grateful to the Group’s Special Adviser, Robin Callander, for his valuable contribution to the Group’s work, and to the Group’s Secretary, Becky Shaw, and the Group’s External Advisers, Richard Cooke and Malcolm Combe, for all their very helpful assistance.

43 As the members of the Group, we take responsibility for the contents of the Report. However, we are very conscious that we have had to cover a very wide range of topics in tackling the Group’s remit and writing this Report. We apologise for any factual errors or similar mistakes that we might have unwittingly made in the Report.

Footnotes

1 SNH (2016). Deer Management in Scotland: Report to the Scottish Government from SNH, October 2016.

2 ECCLR Committee (2017). Deer Management in Scotland: Report to the Scottish Government from SNH 2016, SP Paper 117, 5th Report (Session 5), 3 April 2017.

3 Scottish Parliament, Written Answer Report, S5W-10023, 29 June 2017.

4 Letter from the Cabinet Secretary for Environment, Climate Change and Land Reform to the Convener of the ECCLR Committee, 2 October 2017.

5 See Section 2 for distribution maps and population estimates.

6 Land Reform Review Group (2014). The Land of Scotland and the Common Good. Report to Scottish Ministers. Scottish Government, Edinburgh.

7 See Section 11.

8 Deer (Amendment) (Scotland) Act 1982.

9 Public Services Reform (Scotland) Act 2010.

10 Wildlife and Natural Environment (Scotland) Act 2011.

11 Letter and ‘Themes emerging from evidence’ from the Convener of the RACCE Committee to the Minister for Environment and Climate Change, 5 February 2014.

12 Letter from the Minister for Environment and Climate Change to the Convenor of the RACCE Committee, 5 March 2014.

13 SNH (2016) Op cit.

14 SNH (2016) Op cit, p.10.

15 ECCLR Committee (2017) Op cit, p.2.

16 Letter from the Cabinet Secretary for Environment, Climate Change and Land Reform to the Convener of the ECCLR Committee, 29 June 2017.

17 Albon, S. D., McLeod, J., Potts, J., Irvine, J., Fraser, D. and Newey, S. (2019). Updating the estimates of national trends and regional differences in red deer densities on open-hill ground in Scotland. Scottish Natural Heritage Commissioned Report No 1149.

18 Langbein, J. (2019). Deer-Vehicle Collision (DVC) Data Collection and Analysis to end 2018. Scottish Natural Heritage Research Report.

19 First Minister’s Climate Emergency Statement 28 April 2019; ‘The Global Climate Emergency - Scotland’s Response’ Statement by Climate Change Secretary Roseanna Cunningham to the Scottish Parliament on 14 May 2019.

20 For example, firearms legislation is reserved to Westminster, while the standards for dealing with wild game meat are covered by European regulations.

21 Land Reform Review Group (2014) Op cit, p.22.

22 Some examples of the use of ‘effective deer management’ include the Ministerial response to the RACCE Committee in March 2014 and the Cabinet Secretary in her letter to the Convener of the ECCLR committee in June 2017. ‘Scotland’s Wild Deer: A National Approach’ (Scottish Government, 2014) also refers to ‘the need for effective deer management’.

23 Similar to the definition of ‘sustainable deer management’ in the Code of Practice on Deer Management (SNH, 2011, p.4).

24 Callander, R. and MacKenzie, N. (1991). The Management of Wild Red Deer in Scotland. Rural Forum, Scotland.

25 Stalking red deer stags on the open hill in spectacular mountain landscapes in the Highlands also remains an important cultural image in Scotland. One reflection of this was the purchase for the nation by the National Galleries of Scotland of Sir Edwin Landseer’s famous ‘Monarch of the Glen’ painting in May 2017.