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

Section 28 Regulatory System

28.1 Voluntary Principle

1 The Group’s recommendations, which are listed in Section 30, include replacing both the Deer (Scotland) Act 1996 Act and the existing three Orders under the Act with revised versions. The changes recommended by the Group could therefore be described as replacing Scotland’s current deer legislation. However, the recommended changes do not alter the approach upon which the legislation is based. That approach is, as discussed in Part One, usually described as the voluntary principle.

2 The voluntary principle contrasts with the legislation governing deer management in some European countries, where the state sets the culls that land owners are required to take each year and where land owners may also be required to participate with other land owners in deer hunting districts. In Scotland, while owners are not compelled to be members of a deer management group covering a particular locality, an essential feature of the voluntary principle is that land owners and occupiers decide their own deer culls in the first instance.

3 As described in Part One, the carrying capacity of an area of land for wild deer can be defined as a level that does not cause damage to public interests on that land or neighbouring lands. If a land owner’s culls are achieving that, they can be described as carrying out socially responsible culls. The voluntary principle means that the powers in the Deer (Scotland) Act 1996 to enforce culls to prevent damage or the risk of damage by deer, are only used where a land owner is not carrying out socially responsible culls.

4 The approach in Scotland’s deer legislation of relying on land owners and occupiers to decide their own culls in the first instance, means that the statutory framework for preventing damage by deer to public interests is often described as a voluntary system of deer management. The Scottish Government contrasts this with statutory deer management, under which the government takes over setting the culls required and carrying them out where necessary.^[1]

5 Describing Scotland as having a voluntary system of deer management can be misleading, as this only refers to the restricted aspects of land owners and occupiers deciding their own culls for their own varied objectives in the first instance and not being compelled to participate in deer groups. The statutory framework regulates a range of other aspects of deer management and a land owner or occupier who does not conform to the regulations will be committing an offence that could result in legal action being taken against them. The Association of Deer Management Groups (ADMG), for example, recognises that the voluntary principle needs to be seen as operating in a regulated environment.^[2]

6 The Group considers that describing Scotland’s statutory framework for the management of wild deer as a voluntary system can be over-emphasised. There is also a need for clarity between the voluntary nature of the system and voluntary actions by land owners and occupiers. The fact that the system is described as voluntary does not reduce the need for Scottish Natural Heritage (SNH) as the deer authority under the 1996 Act, to use compulsory control powers where there is evidence that, despite advice from SNH, individual owners or occupiers have not voluntarily carried out culls that protect public interests from damage by deer.

7 The effectiveness of the voluntary principle approach requires that owners and occupiers have an expectation that enforcement powers will be used when necessary. The Group is, however, not confident that is the case at present, given the limited use that SNH has made of the enforcement powers in the Deer (Scotland) Act 1996 during the nearly 10 years since SNH became responsible for implementation of the legislation in 2010.^[3]

8 Later in this Section, the Group considers whether the existing regulatory powers in the Deer (Scotland) Act 1996 are adequate to deliver effective deer management that safeguards public interests and promotes the sustainable management of wild deer. First, however, the Group considers further the non-statutory arrangements that should underpin the statutory framework.

28.2 Non-Statutory Improvements

28.2.1 Use of s.40A Cull Returns

9 The Group considers that, as part of addressing the current levels of damage caused by deer, that SNH needs to take a more systematic approach to establishing and monitoring the impacts of wild deer and cull levels across all the parts of Scotland where wild deer occur. The Group considers that, as discussed in Section 27, this is essential if SNH is to deliver public policy by minimising the damage that deer can cause in order to achieve effective deer management that safeguards public interests.

10 SNH already has high levels of cull return coverage and engagement by its deer staff in the approximately 40% of Scotland’s area covered by DMGs in the Highlands, with DMG members involved in deer management planning and target culls as discussed in previous Sections. SNH also has more information on the impacts of deer in those areas than other parts of Scotland, although the Group has commented on the need for SNH to improve the information that its has on deer impacts outwith sites designated for their natural heritage interest.

11 The Group recognises that it will take time for SNH to build up its knowledge and understanding of deer impacts and culls across the remaining 60% of Scotland’s area, where it has limited information at present. The time required to implement such a programme will be greatly influenced by the resources available. The Group anticipates, however, that the coverage could be completed in three to five years.

12 The Group also considers that, in monitoring deer impacts and culls in localities, SNH should not just be obtaining returns under s.40 of the 1996 Act of the deer culled in the past year. SNH should also be obtaining returns under s.40A of the planned culls, with these more appropriately viewed as intended or expected culls as discussed earlier. If SNH is seeking to reduce damaging impacts or the risk of damage, SNH needs to monitor the intended culls so SNH can consider if the culls will be sufficient in the circumstances. If not, SNH might need to provide advice or intervene more directly.

13 The information on planned or expected culls under s.40A could be included in the existing s.40 cull return forms by adding an additional line for the planned or expected cull. The Group has recommended amendments to both s.40 and s.40A and at some stage, the provisions in both sections could be abbreviated into a single section in the Act that still enabled the option to ask about previous and planned culls separately if required.

14 The Group considers that SNH should start combining notices for returns under s.40 and 40A from those to whom it sends notices, and provide space for both returns on SNH’s cull return forms. The Group considers that SNH should already have guidance available for those completing return forms, in which SNH clarifies any points about the information required by statute and other questions (for example, over the land type of land where deer were culled). The addition of the s.40A requirement would add to the need for such guidance.

15 The Working Group recommends that Scottish Natural Heritage should start obtaining returns under both sections 40 and 40A of the Deer (Scotland) Act 1996, by combining the notices that are sent and providing space for each return on Scottish Natural Heritage’s cull return form.

28.2.2 Use of s.4 Advisory Panels

16 The Group considers that SNH should be establishing and monitoring the patterns of culling in localities across Scotland, together with basic information on the impacts of deer in the localities, as an essential ingredient of an effective system of deer management. The extent to which SNH might need to provide advice to land owners and occupiers or to intervene more directly would vary according to the circumstances.

17 The Group also recommended in Section 21 that, as part of taking this approach forward, SNH should be moving all cull returns online and that SNH’s replacement online deer database should provide a portal for improved communication to and from those completing the returns. In addition, the Group has recommended that SNH should establish a publicly accessible National Cull Database, with that database structured on Local Authority (LA) areas.

18 In Section 27, the Group described the reasons why it recommends there that SNH should be developing LA areas as an important intermediate level for considering deer management. The Group considers that this would provide a valuable level of focus between the details of local situations and the generalities of information at a national level. This intermediate level would reflect and respond to the different balances of deer species and associated issues in the different parts of Scotland in a way that does not happen currently.

19 The Group considers that a public interest focus at the scale of LA areas is a missing level in deer management in Scotland at present. The intermediate scale of LA areas would provide a level of synthesis and analysis both for use within the area and as part of building up a better informed national picture. The Group considers that SNH should, as part of its analysis at the LA area scale, be liaising with all relevant public sector partners, so that SNH’s approach within the area is informed by their knowledge and experience.

20 The Group considers that SNH should achieve this public sector involvement by setting up advisory Panels for LA areas under s.4 of the 1996 Act, with the membership consisting of representatives of those public sector partners. Such Panels might cover several adjoining LA areas where the LA areas are relatively small such as in the central belt, while larger LA areas would each have a Panel.

21 The Group considers that these advisory Panels would be managed by the deer officer or officers acting in SNH’s capacity as the deer authority in the LA areas. There is no requirement in the 1996 Act for a Panel to be time limited. However, the Group anticipates that the Panels and their members might be appointed for set, renewable terms. The Group has recommended earlier that SNH rather than Scottish Ministers, should be responsible for appointing Panel members.^[4] While such a Panel might only meet once or twice a year, it would provide a focused and structured way of obtaining the input of the public sector partners with a direct interest in deer management.

22 The Working Group recommends that Scottish Natural Heritage should, as part of developing Local Authority areas as an intermediate level for considering deer management, appoint a Panel under section 4 of the Deer (Scotland) Act 1996 for each such area with a membership made up of public sector representatives.

23 The Panel members in all areas should include representatives of Scottish Forestry, Forestry and Land Scotland, Scottish Government Rural Payments and Inspections Directorate and the relevant LA or LAs. There should be several LA representatives to cover the different LA involvements with deer, including roads, venison dealer licensing and planning. Police Scotland also has a range of interests in deer management, including firearms, road traffic accidents, poaching and other offences against the deer legislation. Other public sector bodies may also be relevant in some areas, for example, one of the National Park Authorities.

24 The Group considers that a SNH representative should also be a member of the Panel for SNH’s natural heritage responsibilities under the Natural Heritage (Scotland) Act 1991. At present, the provisions of s.4 of the Deer (Scotland) Act 1996 mean that a SNH Board Member or member of staff can participate in a Panel as an observer, but cannot be a member of a Panel. This provision dates from the original Deer (Scotland) Act 1959 and the Group considers that it is no longer needed. However, even if the provision is retained for SNH fulfilling its functions under the 1996 Act, the provision should be amended to allow SNH to be represented for its functions under the Natural Heritage (Scotland) Act 1991.

25 The Working Group recommends that section 4 of the Deer (Scotland) Act 1996 should be amended to allow a member of Scottish Natural Heritage staff to be a member of a Panel established under section 4, in order to represent Scottish Natural Heritage’s natural heritage functions under the Natural Heritage (Scotland) Act 1991.

26 These public sector Panels at the intermediate scale of LAs might be seen as operating at a level below the Steering Group of public sector representatives responsible for Wild Deer: A National Approach (WDNA).^[5] The Panels would be more directly involved in deer management issues in their areas and could help inform the WDNA Steering Group at the national level.

27 In addition to establishing public sector Panels for LA areas, the Group anticipates that SNH deer officers in these areas would also be holding other meetings and events to engage with other stakeholder interests in that area, for example, land owners and occupiers, deer hunters, other land use interest groups and local community interests.

28.2.3 Use of s.6A and s.10 Powers

28 With the information from land owners and occupiers on previous culls from s.40 returns and on planned or intended culls for the coming year from s.40A returns, SNH can then assess whether it judges the intended culls will be sufficient in situations where there is evidence of damaging by deer or the risk of it. When SNH considers an intended cull will not be sufficient, SNH can then provide advice to the owner and occupier on the need to increase their cull.

29 In some situations, the cull level might need to be increased in stages using an adaptive management approach until the evidence of damage or the risk of it is reduced. The Group has noted earlier that there can be a risk of an owner or occupier putting an inflated number in their culls returns and the Group has suggested measures that could make it easier to test the reliable of the information.^[6] However, the key measure for SNH is level of deer impacts rather the cull totals per se.

30 While SNH deer staff already have a relatively high level of engagement with owners and occupiers in the areas covered by DMGs in the Highlands, the Group considers that the proposed greater engagement by SNH deer staff in those parts of Scotland outwith those areas, should lead to improvements in deer management in many localities. The relative lack of attention to deer management at a local level by SNH in many parts of Scotland outwith open hill red deer range, has meant that the extent to which individual land owners and occupiers may cull the deer that occur on their land has been of little consequence.

31 The greater presence and engagement by providing information and advice should help encourage improved cull levels where that is required to reduce the damaging impacts of deer. While densities might be high in some places in those localities due to owners and occupiers wanting to maximise hunting opportunities, others may not have realised the need to pay more attention to their culls or how many deer they actually need to cull to limit deer dispersing from their land, for example, with the high productivity of roe deer in suitable environments.

32 In situations where owners or occupiers are not responding adequately to SNH’s advice, the Group considers that SNH needs to be making greater use of its enforcement powers than the minimal use described above since it became responsible in 2010 for implementing the deer legislation.^[7] The Scottish Government has already considered it necessary to instruct SNH to ensure that it is using the full range of enforcement powers at its disposal in dealing with non-cooperative land owners.^[8]

33 SNH has two powers that enable it to enter land to cull deer to reduce damage or the risk of it. These are the short term powers under s.10 Emergency Measures and the longer term provisions of a s.8 Control Scheme, which has to be preceded by an unsuccessful attempt to use a voluntary S.7 Control Agreement. SNH also has the power under s.6A to require owners and occupiers to produce a deer management plan for its approval and if the plan is not produced or not successfully implement, that can lead to a s.7 agreement and possible the use of s.8. The Group has recommended amendments to those powers in Part Four to make them more effective to use.

34 The Group considers that SNH should be making more use of its s.6A and s.10 powers where an owner or occupier is not responding adequately to advice, as SNH improves the information that it has on deer impacts and culls outwith open hill deer range. The Group considers that, where necessary to minimise damage, s.6A deer management plans should be backed up by the use of s.10 if there is not sufficient progress.

35 The Group recognises that, within open red deer range, SNH considers that the DMG assessment process over the last five years has achieved “the potential for greater natural heritage benefit than could be achieved by a narrower focus on preventing damage on a selection of sites through regulatory provisions”.^[9] However, the Group still considers than SNH should be making more use of s.6A and s.10 where individual properties, whether in a DMG or not, are not carrying out adequate culls to protect public interests and are not responding sufficiently or sufficiently promptly to SNH advice.

36 The Group considers that evidence of a greater intent by SNH to use these powers would have a helpful influence of standards of deer control in Scotland. The Group also considers, for example, that the transparency and accountability of property culls in the publicly accessible National Cull Database recommended by the Group, is likely to help improve standards along with the other benefits of the Database.

37 The Working Group recommends that Scottish Natural Heritage should make more use than so far of its powers under sections 6A and 10 of the Deer (Scotland) Act 1996, where deer are causing or are likely to cause damage to public interests.

28.3 Climate Change Context

38 One or more of Scotland’s four species of wild deer now occur throughout most of the mainland and some of the islands. Red, sika and fallow deer are also continuing to expand their distributions. While no-one knows the actual number of wild deer in Scotland, the indications are that the overall population could be around one million. Scotland is also continuing to improve as a habitat for deer through on-going woodland expansion, the restructuring of existing woodlands and climate warming resulting in longer growing seasons and more benign winters.

39 Wild deer are, in general terms, thriving in Scotland and the number of deer shot each year has increased over the years. The annual cull recorded from cull returns has been over a 100,000 each year since 2013/14 and the total was over 135,000 in 2017/18, with the culls for each of the four species being the highest ever recorded. In addition, as described in Section 2, estimates suggest the unrecorded cull could add 60,000 or more very largely through the unrecorded cull of roe deer.

40 However, despite the culls, the evidence discussed in Part Three shows that wild deer are continuing to have damaging impacts on the environment, forestry, agriculture and other land uses. Amongst other damaging impacts, the number of recorded deer vehicle collisions is increasing with consequent human injuries and other costs. Against that background, as SNH has pointed out, the evidence indicates that reducing deer densities over much of Scotland would reduce many of their damaging impacts and costs, while still allowing the benefits derived from wild deer to be largely maintained.^[10]

41 The increasing need for climate change mitigation measures provides an important imperative for minimising unacceptable levels of damage by wild deer and the costs associated with that damage or the risk of it. This is a topic which the Group has raised earlier in the Report, particularly in Sections 14, 16 and 27, and which the Group considers should have a particularly major influence on standards of deer management in the coming years. The Group expects that low standards that might have been tolerated before, will become no longer acceptable.

42 At a UK level, the Climate Change Committee monitors the factors involved in climate change and makes recommendations for the types and scales of mitigation measures required to meet targets. In particular in this context, the Committee’s Land Use Report in 2018 identified actions to increase woodland cover and improve condition of peatlands as being essential components of mitigation measures.^[11]

43 In Scotland, the Scottish Government has had a series of five year Climate Challenge Plans from 2009 to the current 2019-24 Plan. The Scottish Government’s Plans are then taken forward through other plans and strategies, for example in this context, the Scottish Forestry Strategy 2019-24 and the Scottish Biodiversity Strategy and Route Map 2020.

44 The Scottish Government’s sense of urgency in responding to climate change trends has increased since the First Minister declared a climate emergency in April 2019.^[12] Initiatives since then have included setting up the Just Transition Commission to advise the Scottish Government on how to develop a net zero carbon economy that is fair to all, and create a cohesive and resilient economy by 2045. The Commission’s report is due in 2021 and likely to have implications for all rural land use sectors, including the deer management sector as part of that.

45 There is also the Climate Change Bill currently in the Scottish Parliament and the Scottish Government’s commitment to updating its Climate Change Plan 2019-24 within six months of the Bill receiving Royal assent. Another commitment announced as part of the Scottish Government’s Programme for Government 2019-20, is to “make regional land use plans for maximising the potential of every part of Scotland’s land to contribute to the fight against climate change”.^[13]

46 The Group anticipates that the proposed regional land use plans should have major implications for the standards of deer management in Scotland in order to reduce the current levels of damaging impacts to public interests by deer in many places. However, the Group considers that it is important that sufficient attention is paid to deer in the proposed regional plans and related initiatives such as the Scottish Government’s Land Use Strategy. There is a risk that deer can be neglected in such plans, because they are mobile and a part of all rural land uses rather a distinct land use sector like agriculture, forestry and others.

47 The implementation of the Scottish Government’s climate change plans is increasingly being reflected in the plans and actions of public bodies. SNH has, for example, recently published a short document on SNH’s Climate Change Commitments. In the document, SNH states that the landscape scale land use changes that it will be promoting as part of climate change mitigation will require “significant changes” to the management of wild deer. Scottish Forestry has also stated, as discussed in Section 14, that the current levels of deer densities in many places are a major obstacle to the successful implementation of the Scottish Forestry Strategy 2019-24 with its role in climate change mitigation and adaptation.

48 The targets for improving the ecological condition of Scotland’s native woodland and enabling their natural regeneration, and for safeguarding and restoring Scotland’s important extent of peatlands, are prominent examples of the need for improved levels of deer control. However, as described in Part Three, the evidence shows that the current deer densities in many places are damaging the natural heritage more generally. There are also the resource implications of these densities for creating new woodlands and re-stocking existing ones. The same is the case with damage to agricultural and horticultural crops, and damage to vehicles and people from deer vehicle collisions.

49 The implementation of the Scottish Government’s climate change mitigation and adaption plans may result in other factors that encourage owners and occupiers to carry out socially responsible culls that minimise deer damage to public interests. The UK Climate Change Committee has recommended, for example, that governments should provide incentives to land managers to help them make the necessary transitions.

50 Public funds are already used through grants to support aspects of deer management as described in this Report, including the production of deer management plans, deer fencing, habitat impact assessments and the promotion of the market for wild venison. Simply providing grants to shoot deer through a bounty system is difficult to verify.^[14] However, funding is provided to support deer control for other specific and measureable purposes as with, for example, Scottish Forestry’s forestry grants to reduce deer densities at a landscape scale to 5-10 per square kilometre based on dung counting analysis.^[15]

51 The Group considers that there should be an appropriate balance between regulation and incentives to achieve change, with that balance evolving over time to fit changing circumstances. The availability of public sector grants to support the delivery of climate change mitigation measures, such as new woodlands, native woodland regeneration and peatland restoration, may encourage some land owners to reduce the densities of deer using their land. This has, for example, started to be the case with some members of DMGs involved in SNH’s DMG assessment process.^[16] The Group has not made a recommendation on the balance between regulation and incentives, given current uncertainty about future public sector support.

52 Concern over countering climate change trends might also possibly lead in time to the development of more independently audited land use certification schemes, focussed on climate change mitigation and adaptation. The UK Woodland Assurance Scheme (UKWAS) provides a model for how a regulator can facilitate the development of such

a standard, with implementation and audit functions carried out by an independent assessor. Certification and accreditation schemes can provide a commercial incentive for land owners and occupiers to participate and it is possible that this approach might be developed to exert influence on standards of deer management. This could include the development of an independent accreditation scheme for standards of deer management that would complement the existing Scottish Quality Wild Venison assurance scheme.^[17]

53 The Group considers that another important factor that will result in improved standards of deer control is cultural change as a result of the growing social concern over climate change. Decades have been spent to relatively limited avail by SNH and its predecessors, the Red Deer Commission and the Deer Commission for Scotland, in trying to achieve a cultural change in the management of open hill red deer in the Highlands. However, awareness amongst land managers of the pressing need to address climate change may have more influence. As the Chair of the ADMG recently stated “The climate emergency is a matter for us all and DMGs are particularly well placed to make a contribution to Scottish Government net zero carbon targets”.^[18]

28.4 Enhanced Regulation

54 The Group’s remit is to “make recommendations for changes to ensure effective deer management in Scotland that safeguards public interests and promotes the sustainable management of wild deer”.^[19]

55 This remit has two elements. The first involves controlling local wild deer populations at levels that safeguard public interests by minimising unacceptable damage by deer to those interests, including the natural environment, forestry, agriculture, other land use interests, public safety and deer welfare. The second element is then managing the local deer populations at around the controlled levels to promote sustainable deer management by optimising the benefits that can be derived from wild deer, including hunting and sport shooting opportunities and venison.

56 The first priority, whether nationally or locally, is to manage local wild deer populations at controlled levels to minimise unacceptable damage to public interests by deer. Scotland’s system of deer legislation and associated non-statutory arrangements is intended to deliver that aim. However, as evidenced in this Report, the system is not adequately achieving that across Scotland at present.

57 In this Report so far, the Group has recommended a range of amendments to the Deer (Scotland) Act 1996 and its associated secondary legislation, and also a number of changes to the non-statutory approaches of the Scottish Government and SNH to the implementation of the legislation and improvement of the standards of deer management. The Group considers that, while the recommendations vary in their significance, the proposed modifications to the current statutory and non-statutory arrangements will make Scotland’s system of deer management more effective at protecting public interests.

58 The Group’s existing recommendations will, if adopted, take time to implement. The amendments to the Deer (Scotland) Act 1996 and its secondary legislation will be

dependent on opportunities in the Scottish Parliament during the coming years. Similarly, for example, it will take SNH time to improve the information that it has on local deer impacts and culls outwith the areas covered by DMGs and to build up the information it has on deer impacts more generally outwith statutorily designated sites.

59 The Group considers that the influence of its recommendations should, if implemented, have started to become clearer over the next two to three years. It should also become clear during that time whether the members of DMGs are following up their recent progress in deer management planning, by making sufficient real progress on the ground in reducing the current levels of damage by deer to public interests within the areas covered by DMGs. During the same period, other factors may emerge that help improve the standards of deer control as illustrated in 28.3 above.

60 The Group considers that over that period, its recommendations and other factors, including SNH’s ongoing deer management work, should be delivering more effective deer management. However, on the basis of the evidence available from its review of the current arrangements governing the management wild deer, the Group cannot be sure that its recommendations and other factors will ensure effective deer management as required by its remit.

61 The Group therefore considers, as discussed below, that the Scottish Government needs to be in the position to be able to introduce in due course additional measures to give SNH greater influence over the levels of culls carried out by land owners and occupiers, if that proves necessary. The Group considers that an important factor in this is the higher standards of deer control than previously that will be required to support the successful implementation of Scottish Government climate change mitigation and adaptation measures. The Group identifies below one important measure to be considered in the circumstances where extra powers are deemed necessary to guarantee the desired outcomes. ^[20]

62 The Group supports, as described earlier, the voluntary principle under which land owners and occupiers (abbreviated to owner(s) in the following) decide in the first instance how many deer they may cull on their land. SNH can monitor existing and planned culls through ss.40 and 40A of the Deer (Scotland) Act 1996. SNH then only becomes more involved where it considers on the basis of information on deer impacts, that an owner’s culls will not be sufficient to reduce damage by deer or the likelihood of damage on that land or neighbouring lands.

63 SNH describes its three levels of involvement as assistance, intervention and regulation.^[21] The first level involves providing advice and if that advice is not followed sufficiently, SNH can intervene to require a land owner to produce a Deer Management Plan (DMP) for SNH’s approval under s.6A of the 1996 Act or to agree a Control Agreement under s.7. The final level, if an owner does not carry out the culls required by SNH, is for SNH to use its enforcement powers under s.10 Emergency Measures or a s.8 Control Scheme to intervene directly on the owner’s land to carry out the culls.

64 The Group considered the ss.6A, 7, 8 and 10 powers in detail in Part Four and recommended refinements to their terms to improve their usability. The Group has described the constraints on using a s.7 Control Agreement and therefore potentially a s.8 Control Scheme, except in the most intractable cases of serious damage to an important public interest. At present, the use of s.6A leads to the use of s.7 and potentially s.8, if an owner does not produce a DMP or one that SNH can approve, or if the owner does not adequately implement an approved DMP. The Group has recommended amendments intended to enable the use of s.10 to enforce a notice served under s.6A and to reduce the time given to produce a DMP from 12 months or longer.

65 These powers provide SNH with few options for how it can influence the cull levels of an owner who is not responding sufficiently to SNH’s advice. The powers in ss.7, 8 and 10 date from the Deer (Scotland) Act 1959 and, while amended since, were designed to regulate the management of red deer by estates on open hill range in the Highlands. The new s.6A power, introduced in 2016, was also intended for use in that environment. Also, as SNH has pointed out, if it uses s.6A, 7, 8 or 10 to secure deer control that reduces damage, there is no means in the legislation by which it can maintain the gains, other than through repeated use of these regulatory tools.^[22] Thus, an owner can allow deer numbers and their impacts to build up again until SNH may need to repeat the use of its powers.

66 The distinction between SNH simply providing an owner with advice to increase their cull level and reaching the threshold of deploying its powers under ss.6A, 7, 8 and 10, means that the current provisions might be described as having a relatively coarse-grained approach to trying to minimise damage to public interests by deer. A system of deer management needs to have enforcement powers and there should be an expectation that they will be used where necessary. However, in an effective system of deer management, such powers should be used relatively seldom and, as SNH has commented, using its regulatory powers at a few selected sites has limited influence on securing appropriate standards of deer control more generally.^[23]

67 The Group anticipates that a system that ensures effective deer management that safeguards public interests across Scotland, will require SNH to have more scope to directly influence where necessary the culls that owners are taking. Deer management now involves many smaller scale properties than the estates typical of open hill red deer range, and ensuring adequate culls to protect public interests adequately where necessary, is likely to require relatively modest adjustments to cull levels given the smaller scales of the culls and more complex environments.

68 If SNH had more ability to directly control cull levels, it could achieve those adjustments where necessary in a more proportionate way than the possible use of its existing powers and before the need for those powers might arise. This influence also needs to be able to ensure in contrast to now, that adequate cull levels are maintained each year. This includes, for example, in corridors along higher risk stretches of public roads to minimise deer vehicles collisions and in peri-urban cordons to limit deer dispersal into urban areas.

69 The lack of an appropriate way to control cull levels in Scotland is not a new issue. For example, after 30 years, the Red Deer Commission (RDC) concluded in its evidence to a parliamentary committee in 1989 that “a lack of statutory power to enforce culling levels is seen as a handicap in reducing overall numbers”.^[24] Others have contrasted the position in Scotland with the position in European countries, where the power of the regulator to control cull levels is typically a feature of systems for regulating the management of wild deer populations.^[25]

70 The Land Reform Review Group (LRRG) identified in its 2014 report to the Scottish Government, 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”.^[26]

71 The LRRG’s main proposal to address this situation was that there “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”.^[27] The LRRG considered this was required to “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”.^[28]

72 In European countries, regulators control annual cull levels in a number of ways.^[29] These include universal systems where the regulator sets the culls that owners need to take and others where owners submit their planned culls to the regulator for approval. However, it was beyond the scope of the Group’s work to investigate those countries with universal planned cull approval systems to examine the details of how their systems work to learn lessons relevant to how such a system might work best in the Scottish context.

73 The Group was also particularly constrained in developing its consideration of the operation of an appropriate cull approval system in Scotland, due to the death of the Group’s Chairman Simon Pepper and the loss of his contribution to the Group’s work. As a result, the Group needed to complete its Report with a reduced capacity. However, two sections of the 1996 Act, ss.6A and 40A, can be used to illustrate in the next three paragraphs how such a planned cull approval system might work.

74 The principle of owners being required to submit planned cull totals to SNH for approval, already exists in the 1996 Act under s.6A. In that case, the planned culls are part of a DMP with an expectation that the DMP will include additional information. A DMP can be used at any scale, but is normally associated with larger properties.^[30] However, the same principle of approval could be applied to s.40A, which requires an owner to provide SNH with their planned cull and which the Group has recommended should cover up to five years like s.40 returns of previous culls.

75 The Group has already recommended that owners should be making online returns of previous and planned culls under ss.40 and 40A under the current provisions. A cull approval system would then add the requirement to obtain approval from SNH for the planned cull, with owners potentially submitting their planned culls for three to five years ahead. If SNH had no information of concern about deer damage relating to a property,

SNH would grant an approval. This approval might be called a deer hunting permit or licence. Each year as the previous year’s cull was reported and the planned culls rolled forward a year, there would be scope for the owner and SNH to adjust the planned culls as part of an adaptive management approach.

76 In situations where SNH has information on damage and judged an owner’s planned cull was insufficient, SNH would advise the land owner that they need to increase their cull to obtain a hunting permit. This would give SNH the scope to achieve adjustments in the planned cull before the damage reaches a level that might warrant the use of SNH’s enforcement powers. In situations where no approvable planned cull is submitted after advice or where the culls carried out are consistently below the minimum level required, the Group anticipates that these situations might potentially be addressed by using an amended s.10 of the 1996 Act.

77 The points above are only illustrative and the Group recognises that there are many factors that would need to be considered in developing a planned cull approval system in Scotland, including a suitable pathway for any legal right to appeal. However, the Group anticipates that if such a system was established, it could become more refined over time as deer management standards improved. The system could develop, for example, from specifying minimum numbers of deer of each species to be culled to include the sexes of each species to be culled and provide scope for SNH to set maximum numbers, if that was considered appropriate in some situations.

78 The Group also notes that one very helpful indirect benefit of the introduction of a cull approval system, would potentially be to reduce the current problems over the response rate for submitting cull returns and submitting them within the legal time limit allowed.^[31] The Group considers that land owners would be more likely to submit returns within that period, as they would need to do so to obtain a hunting permit to shoot deer. The Group anticipates that shooting deer without a permit other than under s.25 to prevent suffering, would be regarded as a more serious offence than not submitting a cull return.

79 The Group has not had the scope to investigate the operation of a planned cull approval or hunting permit system in any detail. However, as the Group has argued earlier in this sub-section, the Group considers that the Scottish Government needs to be in a position to introduce such a system in due course, if improvements in deer control are not sufficient in the next few years to ensure effective deer management that safeguards public interests.

80 The Group notes that the Scottish Government did not follow up the LRRG recommendation in 2014 that there should be a cull approval system. The LRRG’s proposals were then considered by the Scottish Parliament’s Rural Affairs, Climate Change and Environment (RACCE) Committee in 2015 during the passage of the Land Reform (Scotland) Bill. As a result, the Committee recommended that the Scottish Government should consider amending the Bill to make the “statutory changes proposed by the Land Reform Review Group”.^[32] However, the Scottish Government did not make the changes.

81 The LRRG’s proposals were also then considered by the RACCE Committee’s successor, the Environment, Climate Change and Land Reform (ECCLR) Committee when it reviewed SNH’s 2016 report on deer management in Scotland.^[33] The Committee recommended in their 2017 report that the Scottish Government should appoint a short term independent deer working group to consider “the recommendations contained within the Committee’s report, reflecting the positions of the Land Reform Review Group and those of the predecessor Committee”.^[34] The Government subsequently appointed this Group with a wider remit and longer reporting period than proposed by the ECCLR Committee.

82 The ECCLR Committee also stated in its report that it was “not convinced the currently available suite of powers are adequate” and called for “a simple effective back-stop power that is fit for purpose which sits alongside a predominantly voluntary system and will ensure the public interest is delivered”.^[35] The Group considers that the introduction of a planned cull approval system could answer the ECCLR Committee’s call.

83 A hunting permit as outlined above would retain the voluntary principle in Scotland’s system of deer management, in that owners would still decide how many deer they intend to shoot and that number would only be changed if SNH had evidence of damage or the likelihood of it.^[36] Wild deer are part of the public domain and the Group considers that a well-designed cull approval system could provide a proportionate and effective way to ensure the public interest is delivered. Such a system might be seen as sitting between the current inadequate arrangements and statutory deer management threatened by the Scottish Government in recent years.^[37]

84 A cull approval system could not be introduced in Scotland for some years for the reasons mentioned above, including the need to expand the number of landholdings covered by cull returns and the eventual adoption of a mandatory cull return system.^[38] However, the Group considers that the Scottish Government should now take the steps below to be able to introduce a cull approval system in due course as and when needed.

85 The Group considers that the Scottish Government should, firstly, investigate appropriate hunting permit systems in European countries, learn from the positive and negative experiences of operating such systems in those countries, and consider how such a system might operate to best effect in Scotland taking account of relevant factors, for example, the nature of the existing deer legislation, other Scottish Government licensing systems and relevant policy agendas, such as Better Regulation.

86 The Group considers that the Scottish Government should, secondly, once it has formed a view on an appropriate system, consult on that system and then amend the Deer (Scotland) Act 1996 (or its successor) to provide scope for the system to be introduced in practice by secondary legislation.

87 The Group anticipates that at each stage in the process (before consulting, before amending the Act, before introducing in practice), the Scottish Government would assess the extent of progress that has been made in reducing the overall levels of damage to public interests by deer at the time, before potentially proceeding to the next stage.

88 The Working Group recommends that the Scottish Government develop proposals for a planned cull approval system that would work to best effect in Scotland and then amend the Deer (Scotland) Act 1996 to provide scope for such a system to be introduced by secondary legislation as and when required.

Footnotes

1 See Section 1.

2 ADMG (2019), Scotland’s Upland Deer Management. The voluntary approach: rising to the challenge. December 2019.

3 SNH’s use of its control powers was described in Part Four. At the time of writing, SNH has not established any new areas under s.7 Control Agreements, not followed any existing s.7 agreements with a s.8 Control Scheme and has only used s.10 Emergency Measures in one situation. SNH’s new power under s.6A Deer Management Plans from 2016 has also only been used once.

4 See Section 26.

5 See Section 25.

6 For example, in Section 11.

7 See footnote 3.

8 Scottish Government Press Statement, ‘Strengthening Deer Management’ (29 June 2017).

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

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

11 Committee on Climate Change (2018). Land use: reducing emissions and preparing for climate change.

12 First Minister’s Climate Emergency Statement, 28 April 2019.

13 Scottish Government (2019). Protecting Scotland’s Future: the Government’s Programme for Scotland 2019-2020.

14 Before SNH became the deer authority, it carried out a short lived trial of this by providing payments for red deer hinds culled (information from Group member).

15 Sustainable Management of Forest Reducing Deer Impact grant, Scottish Forestry, March 2019.

16 SNH (2019) Op cit; ADMG (2019) Op cit.

17 The Group’s understanding is that the possible development of a deer management accreditation scheme is being considered by the ADMG.

18 ADMG press release, 29 November 2019. The same point is also made in ADMG (2019) Op cit.

19 DWG Terms of Reference, Scottish Government, September 2017.

20 The Group notes that other approaches have been recommended in the past. For example, a statutory duty of ‘sustainable deer management’ (see ECCLR Committee 2017 Op cit, para 249), as discussed in Section 25.

21 SNH (2011). Code of Practice on Deer Management.

22 DWG correspondence with SNH, 26 November 2018.

23 SNH (2019) Op cit.

24 House of Commons Agriculture Committee (1990). Land Use and Forestry, para 198.

25 Land Reform Review Group (2014). The Land of Scotland and the Common Good. Report to Scottish Ministers. The Group notes that this is normally achieved via approved management plans.

26 Land Reform Review Group (2014) Op cit, p.232.

27 Land Reform Review Group (2014) Op cit, p.233.

28 Land Reform Review Group (2014) Op cit, p.233.

29 Putman, R. (2011). A review of the various legal and administrative systems governing management of large herbivores in Europe. In: Putman, R., Apollonio, M. and Andersen, R. (eds.) Ungulate Management in Europe: Problems and Practices. Cambridge University Press, pp. 54-79.

30 The members of DMGs had planned culls as part of the DMPs they submitted for assessment by SNH as part of SNH’s recent DMG assessment process, though the planned culls were not subject to SNH’s approval.

31 The current problem with late submissions is discussed in Section 21.

32 RACCE Committee (2015). Stage 1 Report on the Land Reform (Scotland) Bill, SP Paper 845, 4 December 2015, para 370.

33 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, para 11.

34 ECCLR Committee (2017) Op cit, para 15.

35 ECCLR Committee (2017) Op cit, para 11.

36 The Group notes that the assessment process linked to the development of a cull approval system would need to address the concerns that some groups may raise about the potential erosion of the voluntary system.

37 Scottish Government response to the 2015 RACCE Committee report, January 2016, para 208.

38 See Section 21.