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

Section 3 Public Authority, Functions and Interests

1 In the Deer (Scotland) Act 1959 and its successor, the current Deer (Scotland) Act 1996, s.1 has always dealt with three key topics: the public authority with functions under the Act; its functions; and the public interests to be taken into account by the authority in exercising its functions.^[1]

2 During the last 60 years, the public authority has changed from the Red Deer Commission (RDC) to the Deer Commission for Scotland (DCS) and now Scottish Natural Heritage (SNH), while the functions and the public interests involved have also evolved over that time. This Section of the Report traces that evolution as part of reviewing the terms of s.1 of the 1996 Act as a core component of the legislation.

3 The current terms of s.1 of the 1996 Act are shown in Figure 14. The fact that the title of s.1 incorrectly refers to the Deer Commission for Scotland was discussed earlier in Section 1.3.

4 In both the 1959 and 1996 Acts, s.1(1) has included the relevant authority’s main functions under the respective Acts. These functions can be regarded as the overall purpose of the legislation in terms of what the authority is to achieve through its powers and duties in implementing the legislation. While this purpose or remit has evolved over the last 60 years, there has also been a strong element of continuity.

5 When the 1959 Act was passed, the functions in it reflected the compromise that had been brokered between the sporting estate interests that wanted to ‘conserve’ the population of red deer and the agricultural, forestry and other interests that wanted to ‘control’ the numbers of red deer. Thus, in s.1(1) of the 1959 Act, the RDC was given the “general functions” of “furthering the conservation and control of red deer and keeping under review all matters relating to red deer”.

6 Those general functions were only amended once before the 1959 Act was replaced by the 1996 Act. The need arose as a result of the recognition of red/sika hybridisation and the move to give the RDC responsibility for all species of wild deer. The change was achieved through the Deer (Amendment) (Scotland) Act 1982, which adapted the RDC’s general functions in s.1(1) of the 1959 Act by adding after each relevant mention of red deer: “or sika deer or such other deer as may be specified from time to time by direction of the Secretary of State”.

7 The 1996 Act continued the Commission that had been the RDC, but modified it into the DCS. The Act when passed also retained the same basic general functions as the 1959 Act, but amended them so that they became: s.1(1)(a) “in accordance with the provisions of this Act, further the conservation, control and sustainable management of deer in Scotland, and keep under review all matters, including their welfare, relating to deer”.

8 The modified general functions in the 1996 Act differed from those in the 1959 Act in three main respects:

• Firstly, “sustainable management” was added to “conservation and control” to reflect the aim of public policy at the time of the 1996 Act.
• Secondly, the long reference to deer species added by the 1982 Act was replaced by referring simply to “deer” as the 1996 Act covered all species.
• Thirdly, “welfare” was added to the matters to be kept under review. This seems to have been added for clarity. Deer welfare had always been an important consideration in deer management and the 1959 Act included provisions based on deer welfare.^[2] However, as the term ‘welfare’ did not at that time appear in the legislation, its addition in s.1(1)(a) appears to have been intended as clarifying the scope of the DCS’s interests under the Act.

9 When the DCS was replaced by SNH through the Public Services Reform (Scotland) Act 2010, s.1(1) of the 1996 Act was amended so that SNH would have “the following general aims and purposes in relation to deer”. That wording reflected that when SNH was created by the Natural Heritage (Scotland) Act 1991, s.1(1) of that Act gave it “general aims and purposes”.

10 Thus, while the cross-heading above Part 1 in the 1996 Act is “Scottish Natural Heritage’s Deer Functions”, the preamble in s.1(1) is only expressed in terms of the “general aims and purposes” of SNH as an organisation. However, as discussed later in the Report, there is a need for adequate clarity and separation in how SNH exercises its different responsibilities under its 1991 Act and the Deer Act.^[3] The Group considers therefore, that there would be merit in making it explicit that SNH has specific functions in relation to deer under the 1996 Act. That might be achieved by re-wording the preamble to read as follows:

‘The general aims and purposes of Scottish Natural Heritage (in this Act referred to as “SNH”) include the following general functions in relation to deer’

11 The main function or purpose of the legislation in s.1(1)(a) of the 1996 Act has been amended once since the Act was passed. The Wildlife and Natural Environment (Scotland) Act 2011 (‘the WANE(S) Act’) modified the wording to clarify that “conservation” only referred to native deer, as it is not public policy to conserve non-native species of deer. As a result, s.1(1)(a) of the 1996 Act currently states:

“in accordance with the provisions of this Act, further the conservation of deer native to Scotland, the control and sustainable management of deer in Scotland, and keep under review all matters, including their welfare, relating to deer”.

12 While the changes since 1959 to cover all species and to include the concept of sustainable deer management have been significant modifications to the main function in s.1(1) of the legislation, it might be considered that its main terms have changed little over the last 60 years. The brokered compromise of ‘conservation’ and ‘control’ from 1959 remains, but qualified by various additions at different times.

13 The Group’s view is that the current terms of s.1(1)(a) do not provide a sufficiently clear statement for the overall purpose of Scotland’s deer legislation, either in terms of public policy or for the public authority charged with implementing it. The Group considers that the current statement should be replaced by a clearer statement to guide the interpretation and use of the provisions of the Act, to help ensure effective deer management in the public interest.

14 The Group considers that there should be two elements to a clearer statement in s.1(1)(a). Firstly, it should make clear that the purpose of the legislation includes, as its powers reflect, ensuring effective deer management that safeguards public interests. The scope

of those interests is discussed in Section 3.2 below. Secondly, the statement should include the current public commitment to promoting sustainable deer management.

15 Both ‘effective deer management’ and ‘sustainable deer management’ have been used by the Scottish Government and its agencies over the years to represent the overall public interest in deer management.^[4] Both terms are also included in the Group’s remit. While effective deer management is used to mean safeguarding public interests from damage by deer, sustainable deer management is now defined in the Code of Practice for Deer Management introduced under s.5A of the 1996 Act:

“Sustainable Deer Management is about managing deer to achieve the best combination of benefits for the economy, environment and communities for now and for future generations.”^[5]

16 That definition sets sustainable deer management as a horizon which deer management in Scotland should be working towards, with the need to ensure during that journey that public interests are adequately protected. The Group’s view is that these two elements, effectively safeguarding public interests and promoting sustainable deer management, are the only ones required to provide a clear purpose for the legislation in s.1(1)(a).

17 The Group considers that both elements could be incorporated into s.1(1)(a) by amending the sub-section to read as follows:

‘in accordance with the provisions of this Act, to further effective deer management that safeguards public interests and promotes sustainable management, and to keep under review all matters relating to deer;’

3.2 The Public Interests Involved

18 In the 1959 and 1996 Acts, it has always been judged to be in the public interest that particular land use interests are represented in s.1 dealing with the public authority and its functions. During the 60 years since 1959, both the types of interests represented in s.1 and how they are represented in the section have been amended as the interpretation of public interests have evolved.

19 Section 1 of the 1959 Act constituted the RDC with a Chairman and 12 Commissioners making up the governing Board of the Commission. These Commissioners were appointed by the Secretary of State from nominees from organisations representing different interests. Reflecting the difficult origins of the 1959 Act, the specific numbers of Commissioners required to represent each different interest were set out in s.1(4) of the Act. Those interests were “the owners of land used for agriculture and forestry”; “the sporting interest in deer”, “farmers and crofters”, “hill sheep farmers” and nature conservation (with the latter from nominees by the Nature Conservancy and Natural Environment Research Council).

20 The 1996 Act, in s.1(4)-(6) as originally enacted, then modified the arrangements for selecting not less than nine and no more than 12 DCS Commissioners. The requirement to appoint particular numbers of Board members to represent different interests was removed. In the new arrangements:

• to be appointed a member, someone had “to have knowledge or experience of one or more of the following interests: (i) deer management; (ii) agriculture (including crofting); (iii) forestry and woodland management; and (iv) the natural heritage ”;
• the Secretary of State had to afford the opportunity for organisations representing those interests to nominate persons and, while the Secretary of State had discretion over whom was appointed, three of the 12 members had to be from names nominated by organisations representing deer managers.

21 The second bullet point above resulted from an amendment introduced during the passage of the Deer (Amendment) (Scotland) Bill 1996 to satisfy concerns in the House of Lords. The first set of members appointed under these new arrangements in the 1996 Act was also not appointed until 1999, because the Secretary of State had appointed/re-appointed a set of members under the old arrangements in the lead up to the 1996 Act.

22 The other related change in the 1996 Act to the interests in s.1, was to place a new duty on the DCS in s.1(2) “to take such account as may be appropriate in the circumstances of

(a) the size and density of the deer population and its impact on the natural heritage;

(b) the needs of agriculture and forestry; and

(c) the interests of owners and occupiers of land.”

23 The Public Services Reform (Scotland) Act 2010 then replaced the DCS with SNH in s.1 of the 1996 Act, with the consequent repeal therefore of s.1(4)-(6) with their provisions concerning the interests to be involved in the appointment of members to the Commission. As a result of this change, the only interests represented in s.1 became those quoted in the previous paragraph. The WANE(S) Act 2011 then added two further interests to s.1(2):

“(d) the interests of public safety; and

(e) the need to manage the deer population in urban and peri-urban areas.”

24 The current position is that SNH is therefore required in the 1996 Act “to take such account as may be appropriate in the circumstances” of the five interests as quoted in the two paragraphs above.^[6] However, the two additions in 2011 illustrate some of the difficulties of having an exclusive list that specifies each interest to be taken into account.

25 The scope to protect public safety had been added to the regulatory powers in the 1996 Act at the time it was passed. The inclusion in 2011 of public safety to the list in s.1(2) of interests to be taken into account, might therefore be considered to have been done to improve consistency in the Act.

26 However, the inclusion of the reference to urban and peri-urban areas in s.1(2) is the only mention of those types of the areas in the Act, and might be considered to raise wider questions about what other interests should perhaps be included. Simple examples might be:

• if the natural heritage is included, what about the interests of cultural heritage given that deer can have positive and negative impacts on the conservation of certain types of cultural heritage sites?; or
• if the interests of land owners and occupiers are included, what about the interests of local communities and the positive or negative impacts that deer can have on them?

27 The Group’s view is that the approach of limiting the public interests in s.1(2) to a list of specific interests should be regarded as a legacy of the history of the legislation. The Group considers that it is not in the public interest that SNH should be limited in the types of interests which it can take account of as appropriate in any given circumstances. As history has demonstrated, the nature of the public interests that might be of concern and the values attributed to them tend to evolve over time. The Group therefore considers that the exclusive list in s.1(2) should be replaced by a non-exclusive approach.

28 Significantly, appropriate wording for a non-exclusive approach to identifying the public interests involved already exists in the 1996 Act with the phrase “public interests of a social, economic or environmental nature” in ss.6A and 7.^[7]

29 The phrase was first introduced to the 1996 Act by the WANE(S) Act 2011. The Act amended s.7 to include in s.7(1)(a)(ia) “damage to public interests of a social, economic and environmental nature ” as a basis for a s.7 voluntary Control Agreement. The phrase can thus be the basis of a compulsory s.8 Control Scheme if required. The Land Reform (Scotland) Act 2016 then included the same phrase in s.6A(2)(a)(ii) of the 1996 Act, as a reason for requiring owners and occupiers to produce a deer management plan.^[8]

30 The Group considers that it is in the public interest that SNH should be able to take account of all types of public interests.^[9] The Group therefore considers that the phrase “public interests of a social, economic and environmental nature” should be used in s.1(2). The phrase would provide a robust statutory context within which the nature and relative values of public interests can evolve over time.

31 The phrase also makes clearer than at present that it is public interests that SNH is required to take account of, recognising that these public interests include private interests that are considered in the public interest as discussed earlier in Section 1.3 of this Report. In addition, the phrase also includes the three recognised dimensions of sustainability embodied in the “sustainable management of deer” that is included in the purpose of the Act in s.1(1)(a).

32 The social, economic and environmental dimensions of the phrase also link to the Scottish Government’s policy guidance in ‘Wild Deer: A National Approach’ (WDNA). The current version, in considering the public interest in deer management, sub-divides the WDNA Vision and associated Objectives into social, economic and environmental categories.^[10]

33 The fact that the inclusive scope of “public interests of a social, economic and environmental nature” is not already represented in s.1(2), might be considered anomalous given its existing use in some of the regulatory powers in the Act. There is, however, no direct relationship between the interests that can be taken into account under s.1(2) and the interests that can be protected from damage by deer under the various regulatory powers in the Act.

34 Those regulatory powers in the 1996 Act include authorisations for out of season and night shooting under ss.5 and 18 respectively; requiring a deer management plan to be produced under s.6A; control agreements and control schemes under ss.7 and 8; and emergency measures under ss.10 and 11. Each of those powers is discussed in the following Parts of this Report and a consistent theme is the anomalies, inconsistencies and limitations in the types of public interests that can be protected from damage by deer under the various powers.

35 Those anomalies, inconsistencies and limitations are a product of the history of the legislation over the last 60 years and the ways in which the various powers have been amended during that time. The Group considers that it is not in the public interest that the use of some of the regulatory powers should be restricted to a number of specific interests. The question should not be whether a particular public interest is in a list in the Act, but whether the use of a regulatory power is warranted to protect that interest.

36 At present, it is only under three of the regulatory powers (ss.6A, 7 and 8) that there is scope to protect “public interests of a social, economic and environmental nature”. The Group argues in the rest of the Report that the inclusive scope of that phrase should also apply to each of the other regulatory powers in the Act.

3.3 Amending Section 1 of the 1996 Act

37 The Working Group recommends that section 1 of the Deer (Scotland) Act 1996 should be amended to make explicit that Scottish Natural Heritage has distinct

functions under the Act, to modernise the stated purpose of the Act to reflect contemporary public policy objectives, and to convert the list of interests to be taken into account into an inclusive rather than exclusive list.

38 The terms of this recommendation are illustrated in the following amended version of s.1:

1. Scottish Natural Heritage

(1) The general aims and purposes of Scottish Natural Heritage (in this Act referred to as “SNH”) include the following general functions in relation to deer —

(a) to ensure effective deer management that safeguards public interests and promotes sustainable management;

(b) to keep under review all matters relating to deer; and

(c) to exercise such other functions as are conferred on it by or under this Act or any other enactment.

(2) In this Act references to SNH’s deer functions are to the functions relating to deer conferred on it by or under this Act or any other enactment.

(3) It shall be the duty of SNH, in exercising its deer functions, to take account of public safety and deer welfare in all circumstances and to take such account as may be appropriate in particular circumstances of other public interests of a social, economic or environmental nature.

39 In the current s.1, deer welfare is mentioned in the phrase in s.1(1) “and keep under review all matters, including their welfare, relating to deer”. However, the Group’s view is that it is an anomaly that public safety is not also covered. Therefore, in the amended s.1(3) above, public safety and deer welfare are both identified as factors that should be considered in all circumstances.

40 Part Two of this Report considers the need in deer management for high standards of public safety and deer welfare in all circumstances. Part Three then considers the damage that can be caused by deer to public interests in particular circumstances.

Footnotes

1 The interpretation given in both Acts for “functions” is that the word “includes powers and duties” - 1959 s.20; 1996 s.45(1).

2 For example, closed seasons for female deer and the provision to end suffering by a deer.

3 See Part Five.

4 Examples of the use of ‘effective deer management’ were given in the Introduction to this Report.

5 Scottish Natural Heritage (2011). Code of Practice on Deer Management, p.4.

6 This list of interests is also referred to in Section 27 in the context of SNH’s responsibilities under the Scottish Regulators’ Strategic Code of Practice (Scottish Government, 2015).

7 In ss.6A and 7.

8 s.6A(2)(a)(ii).

9 It might be noted that the Group’s remit is about deer management that “safeguards public interests”, not just some.

10 SNH (2014). Scotland’s Wild Deer: A National Approach (2014 Review). Including 2015-2020 Priorities.