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

Section 24 Control Schemes

1 The Agriculture (Scotland) Act 1948 provided the Secretary of State for Scotland with the power to respond to complaints of damage by wild deer, by authorising reductions in deer numbers “on the land of any owner who has failed to take reasonable steps to control the number of deer on his land”.^[1] This compulsory control power was then replaced by powers in the Deer (Scotland) Act 1959.

2 The 1959 Act included two types of control powers that could be exercised by the Red Deer Commission (RDC). One of these powers, s.6 ‘Power of Commission to deal with marauding deer’, was a short-term measure to reduce deer numbers on “particular” land in response to damage. The other power, s.7 ‘Control Schemes’, was a wider measure to reduce deer numbers at a “locality” scale to reduce damage.

3 These two types of powers were continued in the Deer (Scotland) Act 1996. S.6 of the 1959 Act was succeeded by s.10 ‘Emergency Measures to prevent damage by deer’ and its associated s.11 ‘Application of section 10 in relation to the natural heritage’, while s.7 of the 1959 Act was succeeded by s.8 ‘Control Schemes’ and its necessary pre-cursor, s.7 ‘Control Agreements’.

4 The previous Section of the Report considered the short-term powers under s.6 of the 1959 Act and ss.10 and 11 of the 1996 Act. In this Section, the Group considers the development and use of s.7 of the 1959 Act and ss.7 and 8 of the 1996 Act. While some use has been made of control agreements that can precede a control scheme, neither the RDC nor its successors the Deer Commission for Scotland (DCS) and Scottish Natural Heritage (SNH), have ever implemented a compulsory control scheme in the 60 years since the 1959 Act.

24.1 Section 7 of the Deer (Scotland) Act 1959

24.1.1 Legislative History of s.7 of 1959 Act

5 In the 1959 Act, while s.6 provided a short-term measure to deal with marauding red deer on ‘particular land’, s.7 ‘Control Schemes’ provided the power to reduce red deer numbers at a wider scale. Under s.7(1), the RDC could determine the measures required to prevent further damage by red deer to agriculture and forestry “in any locality” by reducing the number of red deer “in the area in which the locality is situated”.

6 Section 7(2) required the RDC to consult the owners and occupiers of land in the area on the measures that the RDC required. The RDC could then make a “control scheme” under s.7(3) if they were satisfied that agreement could not be reached with the owners and occupiers or that the measures agreed were not being carried out.

7 For the RDC to implement a control scheme over the “control area”, s.7(5) stipulated that the scheme had to be made or varied in accordance with the Second Schedule of the Act and confirmed by the Secretary of State for Scotland before it could come into operation. The Schedule, ‘Provisions for making control schemes’, had four parts setting out the procedures for making, varying or revoking a control scheme.

8 In the 1959 Act, s.7 was followed by a further four sections related to s.7 schemes: s.8 Contents of Control Schemes; s.9 Liability of owners or occupiers under control schemes; s.10 Enforcement of control schemes; and s.11 Recovery of expenses incurred under section 10.

9 The only amendments to ss. 7-11 and the Second Schedule of the 1959 Act before it was replaced by the 1996 Act, were made by:

• the Deer (Amendment) (Scotland) Act 1982, which inserted “or sika deer” after each reference to red deer and which also increased the fine in s.9(2) for non-compliance;
• the Local Government (Scotland) Act 1973, which replaced the previous local government legislation referenced in the Second Schedule Part III, paragraph 11, regarding the provisions for the holding of local inquiries in response to an objection to a control scheme.

24.1.2 Use of s.7 of 1959 Act

10 The RDC made early use of its s.7 powers, establishing five control agreements under s.7(2) by agreement with groups of estates during the period 1961-65.^[2] However, cull targets were not met in most years and the agreements had all been discontinued by 1969 with very limited success.^[3]

11 The RDC, however, never made a compulsory control scheme as provided for under s.7(3), either at that time or subsequently, as they came to regard the powers in s.7 and its associated provisions as unworkable.

12 The RDC relied instead on advice and persuasion, encouraging owners to form Deer Management Groups (DMGs) and advising farmers and foresters to use their rights (supported by out of season authorisations where required) to kill deer when damage was being caused to their crops.

13 However, the RDC remained concerned at the continuing levels of damage by deer and the lack of progress. In 1988, for example, the RDC Chairman considered the situation “very serious” and wrote to deer managers that “Criticism from agriculture, forestry and conservation interests about bad management practices resulting in over-population, damage to neighbours’ property and the environment is rising to a level where statutory interventions will have to be considered”.^[4]

14 The following year (1989), RDC stated in its Annual Report that “The Deer (Scotland) Act 1959 … provides powers for the RDC to introduce statutory control schemes to reduce deer numbers. The Commission continues to believe that voluntary solutions are more acceptable, but the cooperation of both deer management and the agriculture and forestry industries is essential. Without the necessary level of cooperation voluntary solutions may no longer be achievable.” ^[5]

15 This concern resulted, after the government had confirmed its intention to review Scotland’s deer legislation in 1991, in the RDC making its first use of voluntary control agreements under s.7(2) in nearly 25 years. In the RDC’s final three years, 1993/94-1995/96, it established five s.7(2) control agreements that were intended to be forerunners of the greater use of voluntary agreements anticipated after the 1959 Act was replaced by a new Deer Act.

16 This use of control agreements was subsequently reflected in the official notes on the Deer (Amendment) (Scotland) Act 1996 that resulted in the 1996 Act. The notes commented that “In more recent years the Commission have promoted a number of voluntary control agreements in the East Grampian area”.^[6] The locations of the RDC’s final five s.7(2) agreements are listed later in this Section in Figure 52.

24.2 Sections 7 and 8 of the Deer (Scotland) Act 1996

17 The five sections 7-11 dealing with control schemes in the Deer (Scotland) Act 1959 were replaced by the four sections 6-9 in the Deer (Scotland) Act 1996 through the Deer (Amendment) Act 1996:

s.6 Control areas

s.7 Control agreements

s.8 Control schemes

s.9 Recovery of expenses incurred in fulfilment of control scheme

18 The new s.6 simply stated that the area covered by a control agreement or control scheme will be referred to as the “control area”, while s.9 had the same provisions as in the 1959 Act for the recovery of expenses subject to minor changes (e.g. to refer to ‘deer’ and to clarify the basis on which the Land Court determines any appeal over the recovery expenses by the Commission from an aggrieved owner or occupier).

24.2.1 Legislative History of s.7 of 1996 Act

19 The main change from the 1959 Act was the new s.7 in the 1996 Act. This developed the previous paragraph about voluntary control agreements in s.7(2) in the 1959 Act, into a series of sub-sections setting out the process by which the DCS would establish a “control agreement” with the land owners and occupiers in the “locality” concerned.

20 In comparison to the 1959 control agreements, the new s.7 covered all deer species and included the scope:

• to prevent damage (rather than just prevent further damage);
• to take deer (rather than just kill them);
• to protect public safety and the natural heritage (rather than just agriculture and forestry);
• to agree variations to the terms of a control agreement at any time.

21 Section 7(1) covered the interests that could be protected under a control agreement. While they included damage “whether directly or indirectly, to the natural heritage generally”, s.7(2) also provided that:

“For the purposes of subsection (1) above ‘the natural heritage’ includes any alteration or enhancement of the natural heritage which is taking place, or is proposed to take place, either naturally or as a result of a change of use determined by the owner or occupier of the land in question; and ‘damage’ shall be construed accordingly.”

22 Section 7(3) and (4) covered the DCS forming a view on the measures to be taken in the circumstances and consulting the owners and occupiers on them to secure their agreement. Section 7(5) then set out the required contents of a control agreement, with s.7(6) enabling the parties to vary a control agreement at any time.

23 While s.7 was amended in 2010 to replace the DCS with SNH, the Wildlife and Natural Environment (Scotland) Act 2011 (‘the WANE(S) Act’) made a range of amendments to the section. The changes in s.7(1) included, amongst others, adding “or steps taken or not taken for the purposes of deer management” as a potential cause of damage and adding both “the welfare of deer” and “public interests of a social, economic or environmental nature” to the interests that can be protected under s.7. In addition, references in s.7(1) to reducing the number of deer were removed and the phrase “measures require to be taken in relation to deer management” included instead.

24 The WANE(S) Act also:

• added in 7(4) a reference to notices to owners and occupiers;
• added a new 7(5)(f) to require a control agreement to include the measures to be taken in each twelve month period;
• added a new 7(7) requiring SNH to review each control agreement annually.

25 The only change to s.7 since the WANE(S) Act has been by the Land Reform (Scotland) Act 2016. This added new sub-sections 4A and 4B to provide for a control agreement being used to follow up s.6A ‘Deer Management Plans’ (DMP), where a DMP has not been produced, has been rejected by SNH or has not been implemented.

26 The Group has already recommended in Section 13 of this Report that the phrase “steps taken or not taken for the purposes of deer management” inserted into s.7(1) by the WANE(S) Act should be repealed. The Group also considers that the reference to the Code of Practice added to s.7(1) by the WANE(S) Act should be repealed as it is un-necessary and inappropriate. The basis for the use s.7 is whether damage has been caused, is being caused or is likely to be caused, not about having regard to the voluntary Code of Practice. The same applies to the reference to the Code inserted by the WANE(S) Act into s.8(1).

27 The Working Group recommends that the Deer (Scotland) Act 1996 should be amended to remove references to the Code of Practice on deer management from section 7(1) and (3) and from section 8(1).

28 The Group considers that the addition of further interests by the WANE(S) Act to those that can be protected under a s.7 agreement, including “public interests of a social, economic or environmental nature”, illustrates the case discussed in Section 3 of the Report, for a consistent, inclusive statement of the interests that can be protected under each of SNH’s regulatory powers (ss.5, 6A, 7, 8, 10, 11, 18), to remove the current inconsistencies and anomalies.

29 The Group also considers that the specific provision related to the natural heritage in s.7(2) quoted above, should be repealed. While it simply provides that a voluntary agreement can include altering or enhancing the natural heritage, the inclusion of s.7(2) is a product of s.8(2) limiting the circumstances where the natural heritage can be protected through

a s.8 Control Scheme. As discussed below, the Group considers that s.8(2) should be repealed and that, as a result, s.7(2) becomes redundant.

30 The failure of owners and occupiers to agree a control agreement under s.7 or to implement it, is the only trigger for a s.8 Control Scheme. However, under s.8(2), this does not apply to control agreements that involve altering or enhancing the natural heritage unless “a purpose of the control agreement is to remedy damage caused...”.

24.2.2 Legislative History of s.8 of 1996 Act

31 Section 8 in the 1996 Act consolidated the provisions for control schemes from ss.7-9 of the 1959 Act with very limited changes. While s.8 covered all deer species and included the addition of public safety and the natural heritage to the interests that could be protected, the other main change was to s.8(1):

• Under the 1959 Act, the requirements were “have caused damage” and “to prevent further damage”, while the new s.8 inserted “and are causing serious damage” and also added “serious” in ‘have caused serious damage” and “to prevent such serious damage”.

32 Schedule 2 of the 1959 Act dealing with the making, confirmation, variation and revoking of control schemes remained in the 1996 Act with the same four parts and headings. It also appears that the 13 paragraphs in Schedule 2 remained unchanged, apart from an increased use of sub-paragraphs to present the provisions in the text more clearly.

33 The WANE(S) Act 2011 subsequently amended s.8 and Schedule 2 in a number of significant respects, while the Land Reform (Scotland) Act 2016 increased the fine for failure to comply with a control scheme. The changes through the WANE(S) Act included replacing s.8(1) with new sub-sections (A1) and (1) that included:

• removing the requirement in the previous s.8(1) that deer “are causing serious damage” so that the requirements are the same as in s.7(1)(a);
• adding reference to notice being given under s.7 and setting a time limit of six months for reaching a control agreement under s.7;
• adding reference to the Code of Practice;
• removing “serious” when referring to damage; and
• removing the repetition from s.7 of the interests that can be protected.

34 The Group considers the addition of a time limit for agreeing a s.7 control agreement to be a valuable change. Similarly, as commented in Section 13 of this Report, the removal of ‘serious’ ended the ambiguity between damage and serious damage created by the introduction of the distinction through the 1996 Act. The Group has also commented above that the reference to the Code of Practice in s.8 is unnecessary and inappropriate.

35 The WANE(S) Act 2011 also:

• clarified the provision in s.8(2) against control schemes including altering or enhancing the natural heritage, by adding “except where a purpose of the control agreement is to remedy damaged caused, directly or indirectly, by deer or by steps taken or not taken for the purposes of deer management”;
• repealed s.8(5) that provided that an owner or occupier could not be required under a control scheme to erect a fence on their land; and
• added a new sub-section (7A) requiring SNH to review a confirmed control scheme annually for compliance with its provisions.

36 The Group has commented above on s.8(2) when discussing the related provision in s.7(2). The restrictions on altering or enhancing the natural heritage in these sub-sections were a product of the debates in the House of Lords that also gave rise to the restrictions in ss.10 and 11 on the scope to protect the natural heritage, as discussed earlier in Section 23.

37 The Group considers the amendment of s.8(2) by the WANE(S) Act improved the position regarding the natural heritage. However, there remains a significant degree of ambiguity that could give rise to challenges over what constitutes altering or enhancing the natural heritage and remedying damage to the natural heritage. The Group considers that both s.7(2) and s.8(2) should be repealed. Damage, whether directly or indirectly, to the natural heritage is already listed in s.7(1) with the other interests covered by s.7 and thus possibly s.8. The Group considers that natural heritage interests should be covered by that provision, without the complicating qualifications dating from amendments in the House of Lords.

38 The Working Group recommends that the Deer (Scotland) Act 1996 should be amended to repeal section 8(2) and that, as a consequence, s.7(2) should also be repealed.

39 Section 8(3), which was not amended by the WANE(S) Act, sets out the required contents of a control scheme, with the requirements matching those for a control agreement in s.7(5) to facilitate a s.7 agreement becoming a s.8 scheme if necessary. The Group considers that the terms of both s.7(5)(c) and s.8(3)(c), including the requirements for SNH to specify numbers of deer, still reflect the original expectation in the 1959 Act that control schemes would be dealing with red deer on open hill range.

40 In those sub-sections, SNH is only required to specify the species, sex and age of the deer to be killed “if necessary in the opinion of SNH”. The Group considers that SNH should only be required to specify the numbers of deer to be killed on the same basis. The issue to be addressed is the damage and reducing or preventing that, rather than the number of deer per se. In the area covered by the Caenlochan s.7 agreement, for example, the agreement is based on habitat targets rather than target culls.^[7]

41 As noted above, the WANE(S) Act 2011 repealed s.8(5) which provided that an owner or occupier could not be required to construct a fence on their land as part of a control scheme. That provision had been part of the legislation since 1959 and the Group does not support its removal from the Act. The Group recognises that erecting a deer fence may be an appropriate part of addressing an issue over deer damage in some circumstances. However, the Group considers that the choice of whether to erect a deer fence or not on their land should remain with the land owner or occupier.

42 During the passage of the WANE(S) Bill, the Cabinet Secretary linked the repeal of s.8(5) to the proposals in the Bill to reduce the emphasis on deer numbers in s.7.^[8] That change allows SNH as the regulator to use the damaging impacts of the deer as a measure in a s.7 agreement rather than just numbers of deer. However, the Group considers there is an important distinction between SNH requiring a reduction in damage to public interests by controlling wild deer as a shared ‘public resource’, and compelling an owner or occupier to address the issue by erecting and maintaining a deer fence on their land.

43 The Cabinet Secretary also commented during the passage of the Bill on the need to avoid proposing measures that might not be enforceable.^[9] The Group considers that the repeal of s.8(5) was potentially a measure that was not fully considered in practical terms. The Group considers that trying to compel one or more owners or occupiers to incur the expense of erecting and maintaining a deer fence as part of s.8 Control Scheme, would be fraught with difficulties and problems. The Group considers that s.8(5) should be re-instated both as a matter of principle and for clarity.

44 The Working Group recommends that the Deer (Scotland) Act 1996 should be amended to re-instate section 8(5), which was repealed in 2011.

45 The changes made by the WANE(S) Act also involved significant amendments to Schedule 2. These included:

• replacing throughout the Schedule, firstly, the requirement to publish schemes in the Edinburgh Gazette and local newspapers, with “publish in such manner as [SNH/Scottish Ministers] think fit ”; and secondly, removing the requirement that the place where a copy of a scheme can be seen should be “within the district”;
• removing from paragraph 3 the requirement to hold a public inquiry if an objection is made to the planned scheme, and the consequential amendments to remove references to a public inquiry from later paragraphs (e.g. 4(b), 8, 9, 11); and
• substituting revised text for paragraph 13(2)-(4) so that an aggrieved party appeals to the Scottish Land Court rather than the Court of Session.

46 Both the first two changes above regarding publishing schemes and removing the need for a public inquiry in response to an objection, made the arrangements for a control scheme more straightforward. However, the Group considers the changes to paragraph 13(2)-(4) need further reform.

47 The Group’s concern is not the change of court. The Land Court, which is presided over by a judge of the same legal rank and standing as a Court of Session judge, would seem a more appropriate venue for a deer issue. The Land Court is also already involved in the Deer Act as the court to which an owner or occupier, if aggrieved over the recovery of expenses for a control scheme, would appeal through s.9(4).

48 The issue is that the WANE(S) Act changed not just the court, but the grounds of an appeal and the basis on which the court would make its judgement on an appeal from an aggrieved owner or occupier. Previously, under s.13(2), an appeal to the Court of Session could question the validity of a control scheme on the ground that it was not within the powers of the Deer Act or had not complied with a requirement in the Act. If the Court was satisfied that either of these were the case, then under s.13(3) the Court could quash the scheme either generally or in so much as it affected the applicant.

49 The new s.13(2) as a result of the WANE(S) Act broadened the basis of any appeal to the Court to include being aggrieved either at a decision by Scottish Ministers to confirm, vary or revoke a control scheme, or at the terms or conditions of a scheme. While a new s.13(3) shortened the time for lodging an appeal from 48 to 28 days, s.13(4) requires the Land Court to consider an appeal “on its merits rather than by review”. This means that the Court is not considering the appeal on the basis of whether the scheme conforms to the legislation as previously, but examining the merits of the actual scheme itself. As a result in s.13(2), the Land Court can either confirm the scheme, direct Ministers to revoke the scheme “or make such other order as it thinks fit”.

50 This new arrangement means that an appeal could be a very time consuming and expensive exercise, as the Land Court could be asked to consider any aspect of the details of a scheme. However, the draft scheme will have already been through a consultation process before the scheme is confirmed by Scottish Ministers, with the consultation repeated for any variation of the draft scheme in response to objections that may have arisen during that process.

51 The confirmation of a scheme or its variation or revocation therefore involves Scottish Ministers making a judgement in determining the public interest in the circumstances. As has been recognised in other contexts, the public interest can only be determined in the specific circumstances of each case, and it is the role of Scottish Ministers through their democratic position to decide what they judge to be in the public interest in each instance.^[10]

52 The Group considers therefore that the role of the court in the context of a s.8 Control Scheme, should be to consider whether the scheme was within the powers of the Act and had complied with the requirements in the Act. That was the case until 2011.

53 The Group therefore considers that the current paragraph 13 of Schedule 2 should be changed in two respects. Firstly, the grounds for an appeal should be as previously, that a scheme is not within the powers of the Act or does not comply with any of the requirements of the Act. Secondly, the options for the Land Court should be, as previously, to confirm the scheme or direct Scottish Minister to revoke it or part of it in so much as it affects the applicant.

54 The Working Group recommends that paragraph 13(2) of Schedule 2 of the Deer (Scotland) Act 1996 should be amended, so that the grounds for appeal are that a control scheme is not within the powers of the Act or that any of the requirements of the Act has not been complied with.

55 The Working Group recommends that paragraph 13(4) of Schedule 2 of the Deer (Scotland) Act 1996 should be amended, so that the options for the Land Court are to confirm the scheme or direct Scottish Ministers to revoke it or part of it in so much as it affects the applicant.

24.2.3 Use of ss.7 and 8 of 1996 Act

56 When the 1996 Act came into effect and the DCS replaced the RDC, the DCS continued the five voluntary control agreements initiated under the 1959 Act by the RDC in its final years. The DCS then established over 40 further voluntary agreements under s.7 of the 1996 Act before it was replaced by SNH in 2010. While SNH took over the current s.7 agreements at that time, SNH has not initiated a new s.7 agreement so far. As commented earlier, the DCS never converted any of its unsuccessful s.7 agreements into a s.8 Control Scheme and this has also been the case with SNH to date.

57 A significant factor in the increased use of voluntary control agreements under the 1996 Act was the change in the nature of the agreements under the new legislation. In the 1959 Act, the scope for a control agreement under s.7(2) was to implement the measures for an intended control scheme voluntarily before the RDC carried them out directly. The elaboration of voluntary agreements into a separate section in the 1996 Act was seen as reducing the apparent imminent threat of a voluntary agreement becoming a control scheme under the 1959 Act. The change appears to have made land owners more willing to enter control agreements.

58 Figure 52 is an approximate record of the number of s.7 control agreements established under the 1996 Act. The information for the period from 1996 to SNH taking over in 2010 is not necessarily fully accurate as it is drawn from the DCS’s Annual Reports and for some years they do not provide a clear account of the s.7 agreements in operation at the time.

59 Nearly all the s.7 agreements have been to control red deer on open range. The only exceptions to that are the agreements recorded at the bottom of the table involving sika in the Borders between 1998/99-2002/03 and roe deer in the Ben Nevis/Blackmount

area in 2001/02-2002/03. While the red deer s.7 agreements have been widely dispersed across red deer open hill range in the Highlands and Islands, there has been a particular preponderance of them in the Eastern Highlands over the years.

60 Figure 53 shows the build-up under the DCS of the number of s.7 agreements in operation each year until 2002/03, followed by a significant reduction until the six new agreements it established as it was about to be replaced by SNH. The reduction resulted from the DCS’s decision in 2002 to focus its limited resources on reducing damage on designated natural heritage sites.^[11] This has been a policy continued by SNH and is illustrated by Figure 53 recording the public interest reasons for each agreement involving open hill red deer. The change from agreements involving a mix of agriculture, woodland and natural heritage interests before 2002, to agreements only for woodland/natural heritage interests after 2002 is conspicuous. All the s.7 agreements with which SNH has been involved since 2010 have been to protect the natural heritage interests of Natura designated sites.

61 There is no clear record available of the extent to which the red deer s.7 agreements achieved their objectives prior to SNH taking over in 2010. However, the indications are that there was very limited success due either to cull targets not being met or to deer numbers building up again where targets were met, whether as a result of deer subsequently moving in from adjoining areas or reduced cull levels.

Figure 52 Section 7 Control Agreements locations and durations (1993/4-2018/9)

	1959 Act s.7(2)			1996 Act s.7
Red Deer	1993/94	1994/95	1995/96	1996/97	1997/98	1998/99	1999/00	2000/01	2001/02	2002/03	2003/04	2004/05	2005/06	2006/07	2007/08	2008/09	2009/10	2010/11	2011/12	2012/13	2013/14	2014/15	2015/16	2016/17	2017/18	2018/19
1 Angus Glens	X
2 Glen Isla / Glen Shee		X	X	X	X
3 Strathdon		X	X	X	X
4 Deeside			X	X	X
5 Speyside			X	X	X
6 Part Angus Glens			X	X	X
7 Mount Blair				X	X		X
8 S.Dunrobin / Morvich						X
9 Glenfernate						X	X
10 West Lochaber DMG						X	X	X
11 Rannoch						X	X	X	X	X
12 Glen Finglas						X
13 Strathtay						X	X		X
14 Wester Ross DMG						X	X	X	X
15 E.Sutherland (part)							X	X	X
16 Trossachs							X	X	X	X
17 Ben Lawers							X
18 Tullich Hills (Speyside)							X
19 Ben Nevis / Blackmount								X	X
20 East Grampian (part) (1)								X	X	X	X	X	X	X	X	X	X	X	X	X	X	X	X	X	X	X
21 East Grampian (part)								X	X	X
22 East Grampian (part)								X	X	X
23 East Grampian (part)								X	X
24 East Grampian (part)								X
25 West Grampian (part) (2)								X	X	X	X	X	X	X	X	X	X
26 West Grampian (part)								X	X	X
27 West Grampian (part)								X	X
28 Harris & Lewis								X	X	X
29 North Uist								X	X	X
30 South Uist								X	X	X
31 West Inverness-shire									X
32 West Sutherland										X
33 Inchnadamph											X	X	X	X	X
34 Kinveachy												X	X	X	X	X	X	X	X	X	X	X	X
35 Drumrunie												X	X	X	X	X	X
36 Ardvar																	X	X	X	X	X
37 Inverpolly																		X	X	X	X	X	X	X	X	X
38 Beinn Dearg																		X	X	X	X	X	X	X	X	X
39 Ben Wyvis																		X	X	X	X	X	X	X	X	X
40 Breadalbane																		X	X	X	X	X	X
41 Fannich Hills																		X	X	X	X	X	X	X	X	X
42 Mar Lodge																		X	X	X	X	X	X
No. of Red s.7s (above)	1	2	5	6	6	7	10	17	17	10	3	5	5	5	5	4	5	9	9	9	9	8	8	5	5	5
No. of Roe (B.Nevis/Blkmt)									1	1
No. of Sika s.7s (all Borders)						2	2	1	11	1
No. of s.7s operating in year	1	2	5	6	6	9	12	18	29	12	3	5	5	5	5	4	5	9	9	9	9	8	8	5	5	5

(1) Caenlochan

(2) Glenfeshie

Sources: RDC/DCS Annual Reports and SNH Information Response 41

Source: RDC/DCS Annual Reports and SNH Information Response 41

62 There were nine s.7 agreements operating when SNH took over in 2010 and SNH reported on progress with those agreements and two other previously completed agreements in its 2016 report on Deer Management in Scotland. The report includes a list and map of the eleven agreements, nearly all of which had been in force for over five years and some significantly longer. SNH reported that, while red deer density targets had been met in six agreement areas, habitat targets had only been met in three and partially met in two.^[12]

63 Only one of those eleven s.7 agreements has been concluded successfully, Glenfeshie, that might be attributed to the commitment of the Glenfeshie Estate owner. Four others have been concluded with partial success and SNH is now apparently relying on the local DMG DMPs for further progress.^[13] Five other agreements are continuing after being reviewed and amended,^[14] while one has been abandoned in favour of an agreement outwith the scope of the deer legislation.^[15]

64 The five continuing agreements, which cover a total of over 100,000 ha, range in size from approximately 12,000-46,000 ha and involve between three and 13 owners.^[16] SNH has recently published an assessment of progress with each of these agreements.^[17] While SNH has not used a s.7 agreement in any new areas since it replaced the DCS in 2010, SNH has identified two DMG areas where it might use s.7 agreements to reduce the impacts of deer on designated natural heritage features.^[18]

65 In 2016, SNH estimated that it spends an average of £250,000 a year on s.7 agreements. The Group’s own estimates from examining the figures available confirm that general figure and indicate that c.£3 million was spent on s.7 agreements in the 13 years between 2006-18. The costs include staff time negotiating agreements and deer counts and habitat impact assessment surveys to monitor their implementation. In some instances, the costs also include providing SNH stalkers to help with culls at public expense.

66 The costs of individual s.7 agreements will vary. However, the Group considers that the Caenlochan area in the Eastern Highlands will have been by far the most expensive to date, as there have been a succession of s.7 agreements over the area for more than 15 years since 2003. The Caenlochan s.7 area was expanded to c.34,000 ha in the current agreement, which is due to be reviewed.

67 The position at Caenlochan with s.7 agreements over so many years has involved on-going negotiations, repeated deer counts and habitat surveys, as well as culling assistance, and these costs are continuing due to a lack of progress with habitat improvement and a significant increase in deer numbers in the area in recent years.^[19] There has been very substantial public expenditure over the years at Caenlochan with a lack of apparent progress. The Group considers that the on-going situation at Caenlochan should be investigated in a way that has not been possible for the Group (owing to the Group’s scope), to make all the public expenditure and related information public and accountable.

68 The Working Group recommends that the Environment, Climate Change and Land Reform Committee of the Scottish Parliament should consider holding a short inquiry into the use of section 7 Control Agreements under the Deer (Scotland) Act 1996 in the Caenlochan area.

69 SNH considers that one factor at Caenlochan has been that the population model used previously under-estimated recruitment.^[20] However, the area might also be considered

to illustrate the wider problem of trying to implement reductions in red deer densities in a wider landscape with relatively high red deer densities.^[21]

70 Deer movement into a control area can mean that cull targets prove inadequate to achieve habitat improvements, even where the targets are achieved by the properties involved. Increasing the cull levels may reduce the local deer density, but deer movement into an area can mean that the higher cull levels have to be maintained and that any reduction in those culls can result in previous progress being lost.

71 The average density of open hill red deer across the Highlands and Islands has increased by over 50% since 1961 and the start of the deer legislation. SNH reported in 2016 that the average density over the region in the 1960s was around seven to eight red deer per km2 and around 12.5 red deer per km2 in 2016.^[22]

72 That average density over such a substantial region means that there are significantly higher densities of red deer in parts of the region, as shown in recent reports.^[23] The average densities in those reports are calculated over wide areas and locally within those areas, average densities will be even greater. This includes deer being concentrated on particular parts of the areas in summer and winter and within those areas, making heavier use of parts that are particular favourable, for example, for feeding or shelter.

73 The challenge of wider deer densities may be part of the reason that SNH has concluded some s.7 agreements, and is hoping that local DMG DMPs will result in reductions in the density of red deer over a wider area. While SNH has not so far put in place a s.7 Control Agreement over any new area since it took over from the DCS in 2010, SNH has stated its intention to establish further s.7 agreements on new sites.^[24] However, the Group’s understanding is that there is an increasing reluctance amongst some estate owners to enter a s.7 agreement.^[25]

74 This increasing reluctance appears to be due in part to concern that a s.7 agreement could now be more likely to lead to s.8 Control Scheme, given calls from the Scottish Ministers for SNH to make full use of its regulatory powers.^[26] The reluctance is reminiscent of land owners being unwilling to enter a control agreement under s.7(2) of the 1959 Act, because that was part of the section on control schemes and a control agreement might be readily converted into one (as mentioned earlier in this Section).

75 The separation of control agreements and control schemes into different sections in the 1996 Act, was followed by the marked increase in the use of control agreements under the DCS shown in Figure 53 above. This use appears to have been seen more as illustrating the voluntary collaboration between the public and private sectors that the RDC had been calling for prior to the 1996 Act, than as a prelude to a control scheme. Now that there might be more prospect of a control agreement becoming a control scheme, there

appears to be a preference amongst some estate owners to increase the separation again by dealing with any issues through DMG DMPs.

76 The Group considers that the tradition of referring to s.7 Control Agreements as ‘voluntary’ control agreements, is something of a misnomer. While owners and occupiers are given the option to carry out the required measures, measures are required to address a problem under the terms of the section. A control agreement is a regulatory provision, not a means of collaboration.

77 Much of the use of control agreements by the DCS and the continuation of some of those by SNH can be characterised as limited success over extended periods. The Group considers, however, that SNH needs to ensure that any replacement or new control agreements are set out in terms that could then lead straight to a s.8 Control Scheme, if necessary. The Group’s understanding from SNH is that this was not the case with some agreements until they were reviewed recently.

78 The Group also considers that SNH should not be negotiating and entering any replacement or new s.7 agreements unless SNH has already decided, at an appropriate internal management level, that it has sufficient evidence to be able to proceed straight to a s.8 scheme if an agreement is not agreed within the six month time limit or if it is not successfully implemented.

79 The Working Group recommends that Scottish Natural Heritage should ensure that it sets out any section 7 Control Agreements in terms that can be readily converted into a s.8 Control Scheme under the Deer (Scotland) Act 1996, and that Scottish Natural Heritage should also ensure that it already has the evidence to enforce a s.8 Control Scheme if Scottish Natural Heritage is entering into any new section 7 agreements.

80 There is, as described above, a high degree of continuity between ss.7 and 8 of the 1996 Act and s.7 of the 1959 Act. That original s.7 was framed for dealing with open hill red deer and the current ss.7 and 8 reflect that. Current discussions about the use of s.7 Control Agreements and the possible use of a s.8 Control Scheme have also continued to be about open hill red deer. However, the powers apply to all species of deer across the whole of Scotland.

81 Previously, s.7 agreements have been used to control sika deer in the Borders in 1999-2003 and roe deer in the Ben Nevis/Blackmount area in 2001-03. However, ss.7 and 8 remain best suited for dealing with open hill red deer in the Highlands, where there are usually relatively few large properties involved. The Group considers that the use of s.7 and possibly s.8 can become more challenging in more complex situations with more diverse patterns of land ownership, more woodlands and more species of deer.

82 The Group considers that SNH should view its short-term control powers under s.10 as providing a versatile power that might be used effectively in some situations where a s.7 agreement might have been considered in the past. SNH has only used its s.10 powers in one location to date. However, the Group considers that use of s.10 in 2018/19, described in Section 22 of this Report, appears to provide an example of the effective use of s.10 as an alternative to a s.7 agreement in a more complex environment. The Group considers that s.10 could also be used in a range of situations as a means of progressing a deer management plan produced under s.6A.

83 The Group supports the view that a successful regulatory system is one where the regulatory powers seldom need to be used. However, achieving that depends on a credible expectation that the powers will be used where necessary, and there has never been a control scheme in the 60 years since the 1959 Act.

84 There has been a long history of situations where a control scheme has nearly been used. The RDC concluded in the end that the s.7 powers in the 1959 Act were unworkable. The powers then remained little changed in the 1996 Act and the Group’s experience is that there continued to be a reluctance by government to change the powers if they had not been tested. However, significant changes were made to s.8 by the WANE(S) Act in 2011, as described above.

85 Since 2011, SNH has appeared on the verge of using s.8 on a number of occasions. For example, SNH stated in evidence to the Scottish Parliament’s Rural Affairs Climate Change and Environment Committee in 2013 that SNH anticipated testing the amended s.8 powers before long.^[27] More recently, in 2017-18, there was an issue over SNH’s possible use of a s.8 in north-west Sutherland that resulted in SNH deciding against it.^[28]

86 The Group considers that the influence of the House of Lords on the nature of s.7 control schemes in the 1959 Act and on the continuation of those provisions in the 1996 Act, resulted in making a control scheme unduly difficult to implement. The subsequent amendments by the WANE(S) Act 2011 to s.8 and the associated Schedule 2, have made improvements to the provisions to make a control scheme a more workable option, if ever needed. However, the Group considers that the changes recommended above to the natural heritage provisions and terms of Schedule 2 paragraph 13 are essential further amendments.

Footnotes

1 Agriculture (Scotland) Act 1948, s.44.

2 Callander, R. and MacKenzie, N. (1991). The Management of Wild Red Deer in Scotland. Rural Forum, Scotland. The five areas were: Glenavon/Upper Strathdon; North Ross; Hunthill/Glenogil; Cabrach/Glenbuckat; Ross of Mull; and South Ross.

3 Callander and MacKenzie (1991) Op cit.

4 RDC Annual Report, 1988, p.34.

5 RDC Annual Report, 1989, p.18.

6 Deer (Amendment) (Scotland) Bill Amendments accepted in the House of Lords (House of Lords, 2 April 1996).

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

8 Scottish Parliament Rural Affairs and Environment Committee, WANE(S) Bill Stage 2 Amendments,
December 2010 to January 2011.

9 Scottish Parliament Rural Affairs and Environment Committee, WANE(S) Bill Stage 1 Report, 3 November 2010.

10 Land Reform Review Group (2014). The Land of Scotland and the Common Good. Report to Scottish Ministers.

11 See Section 16.

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

13 Inchnadampf, Mar Lodge, Breadalbane, Kinveachy.

14 Inverpolly, Ben Dearg, Ben Wyvis, Fannich Hills and Caenlochan.

15 Assynt Peninsula.

16 SNH (2016) Op cit; SNH Information Response 41.

17 SNH (2019) Op cit.

18 SNH (2019) Op cit.

19 SNH Information Response 41.

20 SNH (2019) Op cit.

21 For example, for the overall density in the area, see Figure 3 in Albon, S. et al (2017), Estimating national trends and regional differences in red deer density on open-hill ground in Scotland: identifying the causes of change and consequences for upland habitats. Scottish Natural Heritage Commissioned Report No. 981, p.7.

22 SNH (2016) Op cit.

23 For example: Albon et al (2017) Op cit. See also: 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.

24 SNH letter to DMGs, ‘SNH Enhanced Approach to Deer Management’, 30 August 2017.

25 SNH correspondence with DWG , 14 August 2019.

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

27 SNH evidence to Rural Affairs, Climate Change and Environment (RACCE) Committee, 20 November 2013.

28 For example, ‘Competing interest groups take up arms over deer shooting’, The Herald, 17 December 2017.