Managing deer for climate and nature: consultation analysis

4 Compulsory powers and compliance (Q9–Q13)

4.1 Part 2 of the consultation paper set out proposals for responding to a range of recommendations from the Deer Working Group (DWG) report concerning compulsory powers and compliance. These proposals involved addressing NatureScot’s ability to gather specific information (on, for example, plans for deer culling) and their use of emergency powers, and the ability of NatureScot to recover costs as a result of using their emergency powers.

4.2 The consultation paper asked five questions on these issues.

Question 9: Do you agree with our proposals that would allow changes to the types of information which can be requested by NatureScot (under Section 40 of the 1996 Act), to be made via secondary legislation? [Yes | No | Don’t know]

Question 10: Do you agree with our proposals that the period of time over which NatureScot can ask for information on planned future culls should be increased from 12 months up to a period of 5 years? [Yes | No | Don’t know]

Question 11: Do you agree with our proposals that NatureScot should be able to use emergency powers under Section 10 of the Deer (Scotland) Act 1996, which include the ability to enter land to undertake short term deer management actions for a period of up to 28 days, to tackle damage to the natural heritage? [Yes | No | Don’t know]

Question 12: Do you agree with our proposals that where NatureScot have intervened and carried out deer management actions as a result of these emergency powers, they should be able to recover reasonable costs? [Yes | No | Don’t know]

Question 13: Please provide any further comments on the proposals set out in this section here.

Types of information that can be requested by NatureScot (Q9)

4.3 Question 9 asked respondents if they agreed that changes should be made via secondary legislation to the types of information that can be requested by NatureScot.

4.4 Table 4.1 shows that, overall, 68% of respondents agreed with this proposal, 26% disagreed, and 6% said ‘don’t know’. Similar proportions of both individuals (68%) and organisations (66%) agreed with the proposal. However, individuals were more likely than organisations to disagree (27% versus 14%), while organisations were more likely than individuals to say ‘don’t know’ (20% versus 5%).

4.5 Almost all conservation and animal welfare organisations (94%) and three-quarters (77%) of organisations in the ‘other organisation types’ category agreed with the proposal. By contrast, land management, deer and sporting organisations were more divided in their views. Although the largest proportion of this category of respondents (45%) agreed with the proposal, 24% disagreed and 31% said ‘don’t know’.

Percentages may not total 100% due to rounding

A more detailed breakdown of responses by organisation type is shown in Annex 3, Table A3.10.

Period for which plans on future culls can be requested (Q10)

4.6 Question 10 asked respondents if they agreed that the period of time for which NatureScot can ask for information on planned culls should be increased from 12 months to a period of up to 5 years.

4.7 Table 4.2 shows that, overall, 67% of respondents agreed with this proposal, 28% disagreed, and 6% said ‘don’t know’. Similar proportions of both individuals (67%) and organisations (65%) agreed. However, individuals were more likely than organisations to disagree (29% versus 13%), while organisations were more likely than individuals to say ‘don’t know’ (22% versus 5%).

4.8 Nearly all conservation and animal welfare organisations agreed with the proposal (91%), and a majority (69%) of organisations in the ‘other organisation types’ category also agreed. Land management, deer and sporting organisations were more divided in their views, with 47% agreeing, 21% disagreeing and 32% saying ‘don’t know’.

Percentages may not total 100% due to rounding

A more detailed breakdown of responses by organisation type is shown in Annex 3, Table A3.11.

Use of Section 10 powers to tackle damage to the natural heritage (Q11)

4.9 Question 11 asked respondents if they agreed that NatureScot should be able to use emergency powers under Section 10 of the Deer (Scotland) Act 1996 to tackle damage to the natural heritage. These powers would include the ability to enter land to undertake short-term deer management actions for a period of up to 28 days.

4.10 Table 4.3 shows that, overall, 69% of respondents agreed and 27% disagreed. The remaining 4% of respondents said ‘don’t know’. Individuals were more likely than organisations to agree (70% versus 56%). Conservation and animal welfare organisations almost unanimously agreed with the proposal (97%) and around two-thirds (69%) of organisations in the ‘other organisation types’ category also agreed. However, only a quarter of land management, deer and sporting organisations (25%) agreed. This latter group were divided in their views on this question, but the largest proportion (46%) disagreed.

Percentages may not total 100% due to rounding

A more detailed breakdown of responses by organisation type is shown in Annex 3, Table A3.12.

Recovery of costs following use of emergency powers (Q12)

4.11 Question 12 asked respondents if they agreed that NatureScot should be able to recover reasonable costs in situations where they have intervened using emergency powers.

4.12 Table 4.4 shows that, overall, 65% of respondents agreed and 30% disagreed. The remaining 5% of respondents said ‘don’t know’. Individuals were more likely than organisations to agree with the proposal (66% versus 50%). Nearly all conservation and animal welfare organisations (91%) and around two-thirds of respondents in the ‘other organisation types’ category (62%) agreed. However, among land management, deer and sporting organisations only a fifth agreed (19%), while more than half disagreed (56%).

Percentages may not total 100% due to rounding

A more detailed breakdown of responses by organisation type is shown in Annex 3, Table A3.13.

Comments on compulsory powers and compliance (Q13)

4.13 Question 13 invited respondents to provide any further comments on the proposals set out in Part 2 of the consultation. In total, 480 respondents – 70 organisations and 410 individuals – made comments. The comments made are discussed under the four main themes of (i) information collection by NatureScot, (ii) cull plans, (ii) the use of emergency powers and (iv) cost recovery. A final section summarises other comments made by respondents.

4.14 It should be noted that this part of the consultation paper and the related questions raised issues and challenges for respondents. In particular:

• The consultation paper posed questions about the use of new powers and/or changes to secondary legislation in situations/circumstances that were not fully described – for example, in relation to Question 9, there were no details on the type of information that might be requested by NatureScot, and in what circumstances.
• The questions asked about legislative options and proposals. However, respondents’ comments indicated that it was not clear how the proposals were intended to work in practice, what they would cover, and how they related to other provisions in the Deer (Scotland) Act 1996.
• Views were sought on proposals relating to a specific subset of DWG recommendations. However, it was common for respondents to stray outwith these and to raise questions and make comments about other recommendations.
• Respondents repeatedly said that the terminology and definitions used in this section were highly subjective. They highlighted terms such as ‘sufficient damage’, ‘indirect damage’ and ‘natural heritage’, and a lack of detail on criteria, thresholds and measurement in relation to such concepts which made it difficult for them to address the questions.

4.15 These issues were particularly apparent in responses from land management, deer management and sporting organisations.

Information collection by NatureScot

4.16 Respondents broadly agreed that good quality and consistent data were essential to effective planning and management of deer populations. However, there was a common view (particularly among land management organisations, deer groups and some individuals) that data availability varied across the country, with good quality data currently largely confined to upland areas covered by deer management groups.

4.17 Conservation and animal welfare organisations supported efforts to improve data on deer populations (including through use of compulsory measures if necessary) and there was a repeated suggestion that Forestry and Land Scotland’s Wildlife Management Dashboard would provide a useful starting point for improving data quality and availability. It was also noted that information on deer populations needed to be complemented by further information on habitats and herbivore impact assessments to provide a sound basis for environmental and ecological work.

4.18 Land management organisations and deer groups, along with some individuals, commonly said that they already shared a significant amount of information with NatureScot on a voluntary basis, and were happy to continue to do so – some therefore queried the need for further legislation in this area. Some respondents in this group also expressed concern about the financial and administrative burden on landowners if additional information were to be required. Respondents in this group often said that the focus should be on addressing current data gaps (e.g. in lowland areas/areas not covered by deer management groups), and/or that a system of payments linked to deer management activities would help support and incentivise the provision of better quality data.

4.19 Some respondents in this group said that they were unable to offer a definitive view on the specific proposal as the consultation provided insufficient detail on the additional information that might be sought and how it might be used.

4.20 It should be noted that there was little comment on the specific issue of whether changes to data requested by NatureScot should be made via secondary legislation. However, one respondent in the ‘other organisation type’ category stressed that it would still be important that any proposed change to current legislation received adequate scrutiny.

Information on planned culls

4.21 A range of respondents commented on the proposal to increase the period over which NatureScot could ask for information on planned culls from 12 months to up to 5 years.

4.22 Conservation and animal welfare organisations largely supported this proposal and did not generally expand further on their views. However, it was common for respondents in this group to say that they wished to see (i) compulsory cull returns and (ii) the development of proposals for a Planned Cull Approval System as recommended in the DWG report, with clarity sought on whether this was being taken forward.

4.23 Other respondents – particularly land management organisations and deer groups and some individuals – said that the preparation of 5-year cull plans was already common practice among deer management groups. However, they pointed out that these were updated annually to account for changes in, for example, herd transience, the weather, environmental or ownership and use changes on neighbouring land. Some respondents said that any requirement for a 5-year cull plan would have to allow flexibility for changes in local circumstances/events, while others expressed concerns that 5-year plans would inhibit the flexibility required for deer management. There were also concerns about the extent to which deer managers and landowners would be held accountable for plans in such circumstances.

4.24 Some land management, deer and sporting organisations raised concerns about a requirement for 5-year cull plans, saying that the ‘logic and utility’ of requesting such plans had to be carefully considered given current issues with data availability and quality across the country. It was suggested that any request for 5-year plans should be restricted to (upland) areas where data were more likely to be available to support such planning. Occasionally, individuals suggested alternative planning periods of 2 or 3 years, as opposed to the 5-year period proposed.

Emergency powers

4.25 With respect to the use of emergency powers, some respondents (mainly conservation and animal welfare organisations and individuals) said that it was right that NatureScot should have the power to intervene and enter land to carry out sustainable deer management in the public interest. This group thought it was important that NatureScot had access to – and made use of – the full range of powers available (including emergency measures and powers under the Land Reform Act 2016 to require the production of a Deer Management Plan). Specific views among this group were that (i) Sections 6–10 of the Deer (Scotland) Act should be reformed to ensure they were workable in practice, and aligned with DMNROs, and (ii) the period of notice required to enter land to undertake deer management was currently too long.

4.26 However, it was also common for respondents in this group to say that (i) effective deer management will require a combination of incentives and compulsory powers, (ii) better supported and enforced deer management plans may be more effective than further legislation, (iii) NatureScot should continue to provide advice and support to those involved in deer management, and (iv) deer management should be better resourced.

4.27 Other respondents (including land management organisations, deer groups, sporting organisations and some individuals) expressed concerns about the proposed changes to emergency powers, saying that the use of emergency powers to manage deer populations should always be a last resort. This group argued that deer management activities should continue to be pursued collaboratively via Deer Management Agreements, with the use of emergency powers coming only after Control Agreements had failed to deliver the required action. There was concern that the proposal would allow NatureScot to move more easily and more rapidly to emergency powers without taking account of the interests of owners or occupiers of land. Some in this group considered the proposed changes to be an unreasonable extension of powers for NatureScot, and thought the proposals indicated a lack of respect for the rights of private landowners. Some queried whether damage to the natural heritage could ever be considered to be an ‘emergency’ situation.

4.28 Moreover, there was a recurring view among this group that there was insufficient information provided in the consultation about when and how emergency powers would be used, and how they could be appealed. In addition, respondents thought there was a lack of clarity about key terminology. In particular, they said the definition of ‘natural heritage’ was too subjective, and that the criteria of ‘sufficient damage’ and how this would be measured were not clear. Respondents were concerned about the extent to which the proposals broadened the basis for NatureScot intervention – suggesting it would be easy for NatureScot to cite damage to natural heritage, and hard for landowners to dispute or appeal against a subjective assessment.

Cost recovery

4.29 Broadly speaking, views on cost recovery following emergency action were closely linked to respondents’ views on the use of emergency powers. Comments made in relation to cost recovery following the issue of a DMNRO (see paragraphs 3.44 to 3.52) were often repeated here. There were two main perspectives.

4.30 Some conservation and animal welfare organisations and other respondents who were largely supportive of the use of emergency powers said that NatureScot should be able to intervene in the public interest and also be able to recover reasonable costs. Some in this group said that action to address poor deer or land management by landowners should not be paid for out of public funds. It was also suggested that a cost recovery system would act as an incentive in encouraging landowners to take necessary action ahead of emergency powers being required. However, some respondents in this group offered more qualified support for cost recovery, saying that it should only follow in situations where the damage by the deer was clear and the landowner had been given every opportunity to address identified issues and had failed to do so, and/or that cost recovery should take account of the full circumstances of the case.

4.31 Respondents who expressed reservations about the proposed reforms to emergency powers were generally opposed to cost recovery. Some simply said that they did not support the addition of damage to natural heritage as grounds for emergency action, and therefore they did not support the right to recover costs for any such action taken. More generally, respondents opposed to cost recovery said that:

• It was unreasonable for landowners to be required to meet the cost of work that may be contrary to their own land-use plans and financial interests – particularly as landowners already carry out deer management and environmental work at their own expense.
• Landowners should not be held (financially) responsible for environmental impacts outwith their control (e.g. resulting from the actions of neighbouring landowners), or for work required in very challenging locations.

4.32 There were also concerns among this group about the scale of costs that might be levied and how these would be assessed. There was a suggestion that there should be a scrutiny or arbitration process for determining costs, and that the sale of culled deer for venison could offset any costs incurred in carrying out urgent interventions.

Other comments

4.33 Three other issues raised by respondents are noted below:

• Deer Management Plans: Some land management organisations said it may not be realistic to change the timescale for requesting plans from 12 months to 3–12 months as proposed, given the other responsibilities of land managers and deer managers, the need to coordinate with other landowners and deer managers on such plans, and the fact that contractors who may be involved in drawing up plans were often booked up in advance.
• Dealing with appeals: One public body raised the issue of the appropriate forum for dealing with any appeals relating to non-compliance with compulsory measures, and the implications (time and resources) for that relevant forum.
• Some respondents raised health and safety concerns related to NatureScot entering potentially multiple properties to carry out enforcement action.