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

Section 22 Information - Other Powers

1 The previous Section considered Scottish Natural Heritage’s (SNH) power under s.40 of the Deer (Scotland) Act 1996, to require an owner or occupier to submit a return of the number of deer of each species and sex killed or taken on their land. This Section considers, firstly, SNH’s powers under s.40A to require a return of the number of deer of each species and sex that an owner or occupier plans to kill on their land in the following year, and secondly, SNH’s power under s.6A to require an owner or occupier to produce a deer management plan. This Section also considers SNH’s power under s.15 to enter on land to gather specified types of information.

22.1 Section 40A Planned Cull Returns

2 Over recent years in Scotland, there has been increasing emphasis on the value of information on planned or intended culls. In that context, the Land Reform (Scotland) Act 2016 amended the 1996 Act to introduce a new section (40A) empowering SNH to require an owner on receipt of a notice to submit a return “showing how many deer of each species and each sex are planned to be killed on the land in the following year”.^[1] As with a s.40 return, the return has to be submitted within 36 days.

3 As a result of s.40A, the meaning of a ‘return’ or cull return can now encompass both a previous cull and a planned cull. There are differences in the drafting style of ss.40 and 40A, but the sections have similar provisions. However, there are two significant differences. Firstly, while s.40(1) refers to the killing or taking of deer, s.40A(1) only refers to killing. The Group considers this should be amended both for consistency with the references to both killing and taking throughout the Act, and because taking deer by live capture can be part of a planned cull.

4 Secondly, while s.40(3) allows for cull information to be required for a period of up to five years previous, s.40A(2) only allows for planned cull information to be required for a period “of not more than 1 year immediately following the date of service of the notice”. The Group considers this period unduly restrictive. While s.40 returns are generally only required for the past year and s.40A returns might be similarly required for just a year ahead, the Group considers that there are situations where it could be valuable to require a planned cull return for three or more years. The Group considers that s.40A should have the same flexibility over the duration of the period which can be covered as s.40 and that s.40A(2) should therefore be amended to a period “not exceeding five years”.

5 The Working Group recommends that section 40A of the Deer (Scotland) Act 1996 should be amended to refer to ‘taken or killed’ and to enable the information required to cover a period not exceeding five years.

6 The introduction of the new power of s.40A might be seen in the context of other recent measures that have emphasised the value of having planned culls, for example, the Code of Practice introduced by the Wildlife and Natural Environment (Scotland) Act 2011 (‘the WANE(S) Act’) with its focus on planning as a key part of deer management. Another example is the power that was also introduced by the Land Reform (Scotland) Act 2016, which enables SNH to require an owner or owners to produce a Deer Management Plan (DMP).

7 There has also been an emphasis on planned cull levels in SNH’s current Deer Management Group (DMG) assessment process discussed in the Section 26. With open hill red deer in these areas, there is usually information on the population of red deer based on open hill counts and scope to use population modelling. As a result, red deer culls in these areas can be calculated by large estates on a planned basis. The same can be the case elsewhere if there is systematic information available, for example, as on National Forest Estate land.

8 However, for many land owners and occupiers, factors such as the relatively limited size of their holdings and the extent of deer movement from other properties in any particular year, mean that the notion of a ‘planned’ cull can be misleading. In such situations covering much of Scotland, a planned cull should be seen as an expected or anticipated cull. This may be based on an owner’s or occupier’s experience in the previous year or years, but will still involve them in deciding the deer they plan or anticipate shooting in the next year.

9 An owner’s planned or expected cull could be included on the existing cull return form as a simple line with boxes for males and females of each species. However, when a written question in the Scottish Parliament at the time s.40A was introduced, asked whether “SNH will revise its statutory cull return forms for 2016-17 to include space for the owner’s or occupier’s planned cull in the following year”, the Minister answered “For the 2016-17 season, this will likely include requests for future culls from some specific properties, but not necessarily be applied at a national scale”. ^[2]

10 The Ministerial statement reflects that SNH sees the use of s.40A as a regulatory intervention that might be used in particular situations, for example, “in informing the development of a DMP under s6A, an Agreement under s7, a scheme under s8 or entering into emergency measures”.^[3]

11 SNH promotes planned culls by the members of DMGs and the incorporation of these into the DMPs that DMGs are encouraged to produce. SNH recognises in that context that the use of s.40A “may also be useful to force estates to engage in cull planning where they have been reluctant to do so”.^[4] SNH used s.40A for the first time in 2019 when its served both s.40 and s.40A notices on an estate to require it to provide information on its past culls and planned cull to inform the local DMG.^[5]

12 The Group considers that SNH has a restricted view of the potential value of using s.40A more widely. The Group considers that the public authority responsible for safeguarding public interests from damage by deer should not only want to know what deer have been shot by owners in localities in the past year or years, but also to know the planned or expected cull levels for the following year or years in the localities. This allows the public authority to assess whether cull levels are being managed at appropriate levels or there is a risk of damage to public interests.

13 Despite the increased emphasis in Scotland on the need for planned culls, as mentioned above, Scotland remains very unusual in not requiring owners to submit their planned culls to the public authority responsible for deer management. In Europe, this is “mandatory in all countries apart from those where the State assumes entire responsibility for the control of hunting management ... or in the UK and Sweden”.^[6] The value of information on planned culls is discussed further in Part Six of the Report.

22.2 Section 6A Deer Management Plans

14 The Land Reform (Scotland) Act 2016 amended the Deer (Scotland) Act 1996 to introduce s.6A ‘Deer management plans’. The new section enables SNH to require land owners and occupiers in a particular area to produce a DMP, where SNH is satisfied that deer have caused, are causing or are likely to cause damage and that measures are required to prevent further damage or to remedy the damage.^[7]

15 The DMP to be produced under s.6A has to include the measures to be taken by the owners and occupiers and the time limit for such measures. The DMP then needs to be submitted to SNH for its approval no later than 12 months after the notice was served by SNH, or at such later date as may be specified by SNH. SNH can then approve the DMP, require modifications to it, or reject it.

16 In the Act, s.6A follows the short s.6 ‘Control areas’ that simply states that the areas involved in control agreements and schemes are known as control areas, and is then followed by s.7 ‘Control Agreements’ and s.8 ‘Control Schemes’. Section 6A is a pre-cursor to those sections in that a s.7 Control Agreement is triggered under s.7(4A), if the s.6A DMP has not been submitted in time, has been rejected by SNH or the measures required in it are not being carried out. A voluntary s.7 agreement is then a pre-requisite to a compulsory s.8 scheme.

17 Each of these three sections, in ss.6A(1), 7(1) and 8(1), require SNH to have “had regard to the code of practice on deer management”. This requirement in s.6A is to be consistent with the requirements in ss.7 and 8 that were introduced by the WANE(S) Act 2011, when that Act added s.5A ‘Code of practice on deer management’ into the 1996 Act. However, s.5A only provides that the Code “may... set out of examples of circumstances in which SNH may require ” a DMP to be produced, seek a s.7 agreement or make a s.8 scheme.

18 The Group considers the requirement in s.6A, 7 and 8 to have regard to the Code is a needless addition that should be removed as these references to the Code are not relevant to the implementation of the sections. The issue in each of these sections of the Act is not whether anyone has followed the voluntary Code or not, but whether there is damage or the risk of damage and measures need to be taken.

19 The Working Group recommends that the Deer (Scotland) Act 1996 should be amended to remove the reference to the Code of Practice on Deer Management in section 6A(1) of the Act.

20 The types of damage set out in s.6A(2) that may trigger SNH to require the production of a DMP are consistent with those in s.7, including the inclusive phrase “damage to public interests of a social, economic or environmental nature”. The Group has commented in Section 3 of the Report, on the case for rationalising the various statements in the 1996 Act over the public interests that can be protected under its provisions. The Group also considers in Section 24, which deals with s.7 Control Agreements, the significance of the statement in s.6A(4) that ‘the natural heritage’ in s.6A has the same meaning as in s.7(2).

21 The Group considers that the introduction of s.6A into the 1996 Act provides SNH with a useful new power. This includes the requirement for the first time in the 1996 Act for owners and occupiers to propose annual cull levels (amongst other measures in the DMP) for SNH approval, in contrast to s.7 where SNH specifies the measures and the choice for owners and occupiers is whether to agree or not.

22 However, the Group considers the fact that s.6A(5) allows a period of up to 12 months after a notice is served before a DMP has to be submitted to SNH, is unduly restrictive on the potential value of the power. The 12 months is a relatively long period to allow, given that there has to be an issue over damage or the risk of damage before a notice can be served to start the process.

23 The 12 month length appears to result from anticipating that SNH would be using the power with DMGs, as with SNH’s current aim of encouraging DMGs to produce DMPs as part of its on-going assessment of DMGs. However, the Group considers there are likely to be circumstances, whether with an individual owner or occupier or a number of them, where there is no pretext for waiting up to a year before a DMP is produced to tackle the issue(s) resulting in a s.6A notice being served.

24 The Group therefore considers that s.6A(5) should be amended to provide scope for SNH to require a DMP to be produced in a shorter period than 12 months, to improve the flexibility of using the power. At present, s.6A(5)(b) already enables SNH to specify a date later than 12 months for a DMP to be produced. The Group considers that SNH should also be able to specify a date between three months and 12 months following a s.6 notice, for a DMP to be produced. SNH would then be able to determine the actual period in particular situations according to circumstances, subject to a minimum period of three months’ notice.

25 The Working Group recommends that section 6A(5) of the Deer (Scotland) Act 1996 should be amended to enable the period within which a Deer Management Plan has to be submitted to Scottish Natural Heritage to be less than 12 months, subject to a minimum of three months’ notice.

26 SNH served its first s.6A notices in February 2018, issuing notices to nine adjoining properties in the North-West Highlands due to deer “causing damage to woodland and the natural heritage generally”.^[8] The properties involved make up a DMG sub-group that had previously received funding from SNH towards the costs of producing a DMP, but which had not completed the task due to the appointed contractor needing to withdraw from the work.^[9]

27 SNH’s first use of s.6A was therefore to provide impetus to the completion of a DMP that the DMG sub-group had already agreed to produce. The use was also in the context of SNH’s current assessments of DMGs focused on the production of DMPs. SNH has not, at the time of writing, served any further s.6A notices since then.

28 The Group considers that there is scope for SNH to make constructive use of s.6A in a range of circumstances that do not necessarily involve DMGs. However, the Group would be concerned if SNH started to use s.6A regularly or routinely as a first step before SNH considered serving a notice under s.7 ‘Control Agreements’. Both sections are intended to address issues over deer damage by voluntarily means and running them in sequence would further lengthen an already lengthy process before direct intervention could be taken (if necessary) under s.8 to address a particular case of damage by deer.

29 Under s.6A, a year could pass before a DMP is received and a longer period may be involved if modifications are discussed before SNH approves or rejects it or decides that the measures in an approved DMP are not being implemented. There has then to be a minimum of six months from a s.7 notice being served before SNH might decide agreement is not possible, or a longer period before SNH decides that a s.7 is not being implemented. Thus, in response to a recognised case of damage or where deer are likely to cause damage, years might pass before a s.8 might be triggered.

30 In the Act, s.6A is framed as a potential precursor to the use of s.7 and there is a high level of duplication in s.6A of the provisions in s.7. The use of both sections is triggered by the same circumstances and the basic contents of a DMP and control agreement are set out in the same terms. The principle difference can be considered to be that with s.6A the onus is on the owners and occupiers to produce the plan, while with s.7 the onus is on SNH. On the basis of informal comments by SNH, the Group considers that that some owners might not fulfil a s.6A notice to avoid the expense of producing a DMP that might be subject to modifications by SNH, preferring instead to put the onus and expense on SNH.

31 As the use of s.6A and s.7 are triggered by the same circumstances, the questions arises as to the reasons why SNH might decide to use s.6A rather than s.7. While s.6A might seem a less threatening regulatory measure because it is a step further away from the use of a compulsory s.8 Control Scheme, the very lengthy delay in the response to damage or the risk of it from running the sections in sequence has been described above.

32 The Group considers that there are circumstances where there are benefits in SNH being able to require the production of a DMP, as discussed further in Part Six. However, the Group considers that s.6A could have been linked to s.40A rather than s.7. The planned cull required by s.40A might be seen as the simplest form of DMP, with the use of s.6A where there is a need for more information in more complex situations.

33 With that approach, SNH would use s.6A like 40A to gather information to inform itself as regulator so that damage by deer or the risk of it can be avoided or minimised. Thus, s.6A would be an information requirement like ss.40 and 40A and failure to comply would result in an offence and potential fine, rather than a s.7 and potential s.8.

22.3 Section 15 Power to enter on land

34 In the Deer (Scotland) Act 1959, s.15 ‘Entry on land’ provided the RDC with the power to enter on to an owner’s land for particular purposes. The power was subject to providing notice in the specified terms and any person entering on land being duly authorised in writing by the RDC.

35 The purposes were of two types. Firstly, the RDC had the power to enter land as part of exercising its control powers to deal with marauding deer and to implement a control scheme. Secondly, the RDC had the power to enter land to gather information. This could be either to determine whether the RDC might need to exercise those control powers or to carry out a census of red deer or sika deer.

36 The s.15 in the 1959 Act became s.15 ‘Power to enter on land’ in the Deer (Scotland) Act 1996. While the two sections are drafted differently, there are few differences in the provisions of the 1959 s.15 and the 1996 s.15. The current version covers all species of deer and s.15(2A) has been added to allow for electronic communication. The other notable change involves access to land to determine if regulatory powers should be exercised.

37 In the 1959 Act, s.15 enabled the RDC to enter on land to determine whether the RDC’s power to control marauding deer under s.6 of the 1959 should be exercised. However, the current s.15 does not enable SNH to do the same for the successor power to s.6 in the 1996 Act, s.10 ‘Emergency measures’. While the current s.15 empowers SNH to enter on land to exercise s.10 measures and implement a control scheme, s.15(3)(b) only enables SNH to enter on land to determine if it should use its powers under ss.7 and 8 dealing with control agreements and control schemes.

38 The Group considers that the current position with s.15(3)(b) is an anomaly. The reasons that SNH might want to enter land to determine if ss.7 and 8 powers should be used, apply equally to s.10 and its associated s.11 ‘Application of section 10 in relation to the natural heritage’. The Group considers that s.15(3)(b) should be amended to reflect this.

39 The Working Group recommends that s.15(3)(b) of the Deer (Scotland) Act 1996 should be amended to include sections 10 and 11 of the Act, rather than just sections 7 and 8.

40 In s.15(2), the period of notice required to enter on land for any of the purposes in s.15(3) is two weeks. That period has been the same since 1959. The Group considers that two weeks is now an un-necessarily long time, particularly in situations where SNH require to enter on land to determine if it should use the control powers in the Act due to damage by deer.

41 The Working Group recommends that the period of notice required to enter land under s.15(2) of the Deer (Scotland) Act 1996, should be reviewed with the intention of making the period of notice shorter.

42 Under s.15(3)(a) in the 1996 Act, SNH is able to enter on land for the purpose of “the taking of a census of deer in any area in pursuance of its functions under section 1(1) of this Act”. That provision is expressed in very similar terms to the equivalent provision in s.15 of the 1959 Act, when a census was regarded as counting red deer on open hill range. Now, while a census can involve any species of wild deer, the census might also involve other methods such as the technique of dung counting analysis.

43 Dung counting analysis, which can be used in both open hill and woodland environments, can provide data on both the density of deer in an area and the pattern of occupancy by deer within the area. The technique is widely used by Forestry Land and Scotland, as well as by an increasing number of other deer managers.

44 Within the context of s.15, the principal value of a census of deer in an area is to relate the results to information on the impacts of the deer in the area. Combining the two sources of information can then inform culling in the area by providing guidance on the numbers of deer that might need to be shot, for example, to maintain or reduce the level of impacts.

45 The Group considers that it is now an historical anomaly that s.15(3)(a) only enables SNH to enter on land to carry out a census of deer in any area. The Group considers that SNH should also be able under s.15(3)(a) to enter on land to assess the impacts of deer in any area in pursuance of its functions under s.1(1) of the 1996 Act, not just under s.15(3)(b) to determine if its control powers should be exercised.

46 A central purpose of the 1996 Act and SNH’s role in implementing the Act, is to minimise the impacts by deer that are consider to amount to damage or the risk of damage. The focus of public policy is to reduce the damaging impacts of deer, not the numbers of deer per se. The Group consider that it is important for SNH’s role in relation to the Act, that SNH should be able to enter on land in any area to be able to assess the current levels of impacts by deer in the area.

47 The Working Group recommends that section 15(3) of the Deer (Scotland) Act 1996 should be amended to include as a purpose for entering on land, carrying out an assessment of the impacts of deer in any area in pursuance of Scottish Natural Heritage’s functions under section 1(1) of the Act.

Footnotes

1 Deer (Scotland) Act 1996, s.40A(1).

2 Scottish Parliament Written Answer S5W-00706, 29 June 2016.

3 SNH draft guidance to staff on ‘Exercising Regulatory Functions’ (SNH 14 November 2018).

4 SNH draft guidance to staff on ‘Exercising Regulatory Functions’ (SNH 14 November 2018).

5 SNH (2019). Assessing Progress in Deer Management – Report from Scottish Natural Heritage to Scottish Government, September 2019.

6 Putman (2012) Op cit.

7 Or a danger or potential danger to public safety.

8 SNH letter that served the notice, 14 February 2018.

9 West Sutherland DMG, Minutes of Meeting on 13 November 2017.