Managing deer for climate and nature: consultation

Theme 1: Enhancing the Natural Environment

Overview

The proposals in this theme seek to address deficiencies in the existing deer legislation, and to modernise deer management in the context of the twin climate and biodiversity crises, by taking forward the following actions from the Scottish Government’s Strategic Deer Board:

Deer Management Nature Restoration Orders: Additional powers for NatureScot to facilitate deer management for the purposes of enhancing the natural environment.

Rationale: The Scottish Government believes that this additional power is proportionate and necessary to allow intervention where required to enhance the natural environment and enable the adaption of land management to achieve a more biodiverse and climate resilient Scotland.

Background

Alongside implementing the recommendations made by the Deer Working Group in 2020 the Scottish Government’s Strategic Deer Board has been giving consideration to whether meeting our deer management aims requires legislative change beyond those recommendations. Powers for regulation and intervention under the Deer (Scotland) Act 1996 (“the 1996 Act”) are at present limited and relate to damage intervention. While this was appropriate when the Act was introduced, the context of the biodiversity and climate crises means that regulatory intervention may also be required to enhance the natural environment to achieve a more biodiverse and climate resilient state. This goes beyond the current powers which are limited to preventing, mitigating against and remedying damage occurring to an already poor environment.

Therefore, this new legislation needs to continue the evolution of the deer legislation; to widen the ability for regulatory intervention, where the voluntary approach is failing to deliver on contemporary public interests. This approach requires a shift in balance between public and private interests. The new legislation will balance these interests in a proportionate manner. The aim in shifting this balance would be to increase protection of the public interest which includes the need to see improved habitat condition and carbon management.

Scottish Government Proposals

We are proposing a new Deer Management Nature Restoration Order (DMNRO) which will facilitate deer management for the purposes of nature restoration.

The new DMNRO would be separate and in addition to the existing intervention powers under sections 6 (control areas), 6A (deer management plans), 7 (control agreements), 8 (control schemes) and 10 (emergency measures to prevent damage by deer) of the 1996 Act. We envisage that there may be a role for these existing intervention powers as part of a DMNRO process. However, we will consider the way in which the new DMNRO interacts with the existing intervention powers and will give consideration to whether existing powers may benefit from modification to compliment the creation of the DMNRO. While many of the actions that could be required under a DMNRO, and the associated enforcement powers, are similar to those under section 7 (which deals with voluntary deer management agreements) and section 8 (which provides NatureScot with powers to compel landowners to undertake deer management where the voluntary arrangements have failed) the main difference will be that the new power is focused on helping us meet our biodiversity and climate targets, rather than identifying ongoing damage and preventing further damage. The new DMNRO will aim to identify areas where there are significant gains to be made in meeting biodiversity and climate objectives through deer management actions, often working alongside other nature restoration projects. The aim of a DMNRO will be to enable NatureScot to work with landowners and managers, setting a regulatory environment and where appropriate, providing access to financial support and advice.

Purpose of the new DMNRO

The proposed purpose of a DMNRO would be to enable all necessary deer management actions to secure restoration of nature across a specified area of land, covering one or more landholdings, to be prescribed by NatureScot under a single legally enforceable direction.

Nature restoration in this context would encompass objectives including tree planting, encouraging natural regeneration, peatland restoration, water management, natural capital enhancement.

The actions could include, for example, deer culling, deer fencing, detailed habitat assessment, deer counting and cull planning. Actions prescribed under the DMNRO could qualify for financial or other support.

Identifying areas where new powers are to be used

Unlike the existing section 7 or 8 powers under the 1996 Act, use of the DMNRO would not require deer damage to be assessed against a baseline. The primary criterion for a DMNRO would be where NatureScot assessed that there are social, economic or environmental benefits to be achieved through nature restoration over a specified area and that deer management will be a key factor or one of the key factors in securing those benefits.

There would be a defined and transparent process for selecting an area for a DMNRO, including publication of assessment material, consultation with interested parties and Ministerial approval. There would also be an appeal process which we expect would mirror the appeals process if NatureScot were to intervene using existing powers, and this would be a statutory appeal to the Scottish Land Court.

A DMNRO would be in force for a specified period of time. There would be set reviews of the operation of the DMNRO during the period it was in force. The terms of the DMNRO could be adjusted in terms of its duration or geographical scope, subject to consultation and Ministerial approval.

We recognise that deer management actions are unlikely to be sufficient to achieve nature restoration objectives where there is a significant level of other herbivore grazing. Consideration of candidate areas for DMNROs will therefore need to take into account what plans are in place for dealing with other herbivore impacts.

Actions that might be required under a DMNRO

A DMNRO would apply to a defined land area within which there might be a range of deer management actions required to achieve the stated objectives of the DMNRO.

These actions would include, for example:

• reductions in deer numbers. This could be to a target density or could be specified culls over a period of time and could be in order to achieve a target density
• fencing. This could include fencing to be put in place by landholdings with high deer numbers to prevent those deer damaging restoration projects elsewhere within the DMNRO area
• specified additional work to support deer management including habitat assessments, more detailed cull plans, and cull reporting.

The proposed actions under a DMNRO would be subject to consultation by NatureScot with interested parties. NatureScot would be required to take into consideration economic, social and environmental arguments put forward by consultees, and to balance these against the overall objectives of the DMNRO before determining whether to proceed with the proposed actions.

Non-compliance

Failure to complete a required action under a DMNRO could lead to direct intervention by NatureScot or those they authorise to complete specified tasks with recourse to cost recovery from landowners.

Non-compliance with an action requirement under a DMNRO would be an offence, in a similar way as any refusal or wilful failure to comply with any requirement of a control scheme is an offence under section 13 of the 1996 Act.

Links to incentive schemes

The purpose of a DMNRO would be to enable nature restoration over a wide area. It is recognised that to achieve this land managers, in some circumstances, will need access to financial support and advice. The Scottish Government plans to put in place a financial scheme or schemes for deer management, alongside existing support for forestry and peatland restoration. If we were to proceed with this proposal, we will ensure that advice is provided on the available financial support throughout the period a DMNRO is in existence, that will include information on existing schemes and any new financial support.

Consultation Questions

Question: Do you agree that NatureScot should be able to intervene, through DMNROs, to ensure that action is taken to manage deer, where deer management has been identified as a key part of nature restoration?

Answer options:

• Yes
• No
• Don’t know

Question: Do you agree with our proposed criteria for a DMNRO that:

• They can only be ordered where there is social, economic or environmental benefits to be achieved through nature restoration, and
• additional deer management is a key factor or one of the key factors in securing that benefit?

Answer options:

• Yes
• No
• Don’t know
• I don’t agree with DMNROs

Question: If you answered no to the previous question, what criteria, if any, would you recommend?

Answer options:

• There should be no criteria/restrictions,
• There should be more criteria/restrictions,
• I don’t agree with DMNROs
• Don’t know

Please provide reasons for your answer here

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Question: Do you agree that NatureScot should be able to require a person who is subject of a DMNRO to undertake a range of actions to achieve deer management objectives in these circumstances? Such actions could include:

• reductions in deer numbers, by setting a target density or a specified cull over a period of time
• deer fencing, e.g. requiring fencing to be put in place by landholdings with high deer numbers to prevent those deer damaging restoration projects elsewhere within the DMNRO area
• specified additional work to support deer management including habitat assessments, more detailed cull plans, and cull reporting.

Answer options:

• Yes
• No
• Don’t know

Question: Do you agree that if financial incentives for deer management are created, individuals subject to DMNROs should be automatically eligible for such support?

Answer options:

• Yes
• No
• Don’t know

Question: Do you agree that non-compliance with DMNROs should be treated in the same way as non-compliance with existing control schemes ie:

• It would be an offence
• It would carry a maximum fine of £40,000 or 3 months imprisonment or both.

Answer options:

• Yes
• No
• Don’t know

Question: Do you agree that NatureScot should be able to recover costs from the landowner where they are required to intervene as a result of non-compliance with DMNROs?

Answer options:

• Yes
• No
• Don’t know

Question: If you do not support cost recovery, what alternative non-compliance measures, if any, would you recommend?

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Free text box: Please provide any further comments on the questions in this section here