Managing deer for climate and nature: consultation

Theme 2: Compulsory Powers and Compliance

Overview

The proposals in this theme seek to address issues with NatureScot’s ability to gather information and to take regulatory action and intervene to carry out deer management actions where deemed necessary by taking forward the following recommendations from the DWG:

Recommendation 57 : Section 40 of the Deer (Scotland) Act 1996 should be amended to enable secondary legislation to be used to add to the types of information that can be required on a statutory basis under the section.

Scottish Government Response: The Scottish Government accepts this recommendation.

Rationale: The Scottish Government agrees that gathering a full range of information may improve the current understanding of wild deer populations, impacts and densities and improve abilities to monitor progress. This recommendation will allow a more flexible approach to requiring additional information on cull return forms.

Recommendation 60: Section 40A of the Deer (Scotland) Act 1996 should be amended to refer to 'taken or killed' and to enable the information required to cover a period not exceeding five years.

Scottish Government Response: The Scottish Government accepts this recommendation in principle.

Rationale: The Scottish Government agrees that ensuring consistency in the data gathered on culls is of importance. Amending this section to refer to ‘taken or killed’ will also enable NatureScot to request forward planned culls for up to 5 years, where the current arrangements are for only 1 year which will support long term planning.

Recommendation 62: Section 6A(5) of the Deer (Scotland) Act 1996 should be amended to change the period within which a Deer Management Plan is to be submitted to NatureScot, so that the period is not less than three months and not more than 12 months as NatureScot may determine, according to circumstances.

Scottish Government Response: The Scottish Government accepts this recommendation.

Rationale: The Scottish Government agrees that the current arrangements in which a Deer Management Plan (DMP) must be submitted within 12 months may be too long a period in some circumstances. This amendment will allow NatureScot more flexibility in agreeing a suitable period of between 3 and 12 month based on individual circumstances.

Recommendation 63: Section 15(3)(b) of the Deer (Scotland) Act 1996 should be amended to include sections 10 and 11 of the Act, rather than just sections 7 and 8.

Scottish Government Response: The Scottish Government accepts this recommendation in principle.

Rationale: The current section 15(3)(b) enables NatureScot to enter land in a number of circumstances, the rationale behind this amendment was to enable NatureScot to enter land for additional purposes relating to emergency measures. When bringing forward proposals to modernise deer legislation we will ensure arrangements for NatureScot to enter land are up-to-date.

Recommendation 64: The period of notice required to enter land under section 15(2) of the Deer (Scotland) Act 1996, should be reviewed with the intention of making the period of notice shorter.

Scottish Government Response: The Scottish Government accepts this recommendation.

Rationale: The Scottish Government agrees that the current period of notice, which is two weeks, may now be too long and that in circumstances where the threat of damage is substantial, NatureScot should be able to act quickly and effectively.

Recommendation 65: Section 15(3) of the Deer (Scotland) Act 1996 should be amended to include as a purpose for entering on land, carrying out an assessment of the impacts of deer in any area in pursuance of NatureScot’s functions under section 1(1) of the Act.

Scottish Government Response: The Scottish Government accepts this recommendation in principle.

Rationale: As with recommendation 63, the Scottish Government agrees that NatureScot should have the ability to enter land for these purposes.

Recommendation 66: Section 10(1) of the Deer (Scotland) Act 1996 should be amended to include damage, directly or indirectly, to the natural heritage and that section 11 of the Act should be repealed.

Scottish Government Response: The Scottish Government accepts this recommendation in principle.

Rationale: The Scottish Government agree that any opportunities to provide greater clarity and make legislation more effective are of merit. The recommendation would see natural heritage included at section 10 of the 1996 Act, bringing all emergency powers under the same section so that any use of emergency powers will be based on whether there is evidence of sufficient damage to natural heritage.

Recommendation 67: Section 10(1)(b) of the Deer (Scotland) Act 1996 should be repealed.

Scottish Government Response: The Scottish Government accepts this recommendation in principle.

Rationale: The Scottish Government recognises that requiring the powers under section 10 to be used only as a last resort would have been relevant at the time of its introduction, the current context of deer management requires greater flexibility and for NatureScot to utilise the tools at their disposal as appropriate.

Recommendation 68: Amend section 10 of the Deer (Scotland) Act 1996, so that the owners of land where NatureScot implements measures under section 10(4) have a liability for any net cost involved in carrying out the measures, subject to scope for NatureScot to waive any net cost in appropriate circumstances.

Scottish Government Response: The Scottish Government accepts this recommendation in principle.

Rationale: As with recommendation 67, the Scottish Government agrees there would be potential benefits to such an arrangement. Further consideration is required on a potential appeals process and on setting an appropriate framework for costs.

Recommendation 72: The Deer (Scotland) Act 1996 should be amended to re-instate section 8(5), which was repealed in 2011.

Scottish Government Response: The Scottish Government accepts this recommendation in principle.

Rationale: This recommendation is intended to reinstate section 8(5) of the 1996 Act which prevented a land manager from being compelled to erect a deer fence by a section 8 control order. The Scottish Government considers that deer fencing remains a useful tool in managing wild deer and that in some circumstances this may be the most appropriate course of action. However we do also understand that there is a high cost associated with deer fencing, it is rarely appropriate as a long-term fix and that there are a range of views on its use. Compelling a land manager to erect deer fencing may not be in line with modern deer management practice. We are minded to accept this recommendation but we do also recognise that there may be limited circumstances where the use of this power may be necessary and will consider appropriate alternatives.

Background

Gathering of data and information

The DWG found that -

“the public authority responsible for safeguarding public interests from damage by deer should not only want to know what deer have been shot by owners in localities in the past year or years, but also to know the planned or expected cull levels for the following year or years in the localities thus allowing it to assess whether deer densities are being managed at appropriate levels or there is a risk of damage to public interests. Scotland remains very unusual in not requiring owners to submit their planned culls to the public authority for deer management.”

As we work to modernise deer management in Scotland, with a focus on priority habitats, we agree with the findings of the DWG that we need better data on deer management actions. This might include a range of deer and land management purposes (including the development of strategies, monitoring, reporting, responses and actions), to have a more accurate picture of the nature, scale, extent and trends of damage impacts caused by deer in Scotland.

We also envisage that there could be many circumstances in which NatureScot would seek cull plans for up to five years in the future. For example, where there are multi-year nature restoration projects planned, we expect that surrounding land managers would be expected to consider how their deer management actions would support that project, and ensure that there are effective deer management plans in place. In the first section of this consultation document we set out proposals for new powers for NatureScot which include powers to support landscape scale deer management, and the changes proposed below will support those powers.

Scottish Government Proposals

Recommendation 57

We are proposing to allow changes to the types of information which can be requested by NatureScot (under section 40 of the 1996 Act) to be made by secondary legislation.

This means that as we work to address climate and biodiversity concerns through our deer management efforts we could ensure that we have access to the appropriate data and information for the circumstances. The DWG make specific reference to circumstances in which NatureScot could use improved data to verify cull figures but we also envisage that we might want to gather more data on the types of deer management actions land managers are undertaking.

Recommendation 60

We are proposing to change the period of time for which NatureScot can request information on planned culls. At present NatureScot can seek information on planned culls for a period of up to 12 months in the future. We are proposing that NatureScot be able to seek information on planned culls for a period of up to 5 years in the future. This will support longer term deer management planning.

Recommendation 62

We are proposing legislative change to allow NatureScot to set a timescale for submission of Deer Management Plans (DMPs) by land managers that is between 3 and 12 months. NatureScot will take into consideration individual circumstances alongside any other relevant information, such as neighbouring priority deer restoration projects or damage concerns when setting the deadline for submission of those DMPs.

NatureScot ability to enter land

Recommendation 63 & 66 – Emergency measures to prevent damage by deer

We are proposing legislative amendment to expand NatureScot’s ability to undertake emergency measures to prevent damage by deer to include damage, directly or indirectly, to the natural heritage.

At present, NatureScot can use powers under section 10 of the 1996 Act to intervene and carry out deer management where the circumstances are deemed an emergency. That section of the 1996 Act enables NatureScot to do so for a period of up to twenty-eight days if deer:

(i) are causing... damage to woodland or to agricultural production, including any crops or foodstuffs;

(ii) are causing damage to their own welfare or the welfare of other deer;

(iii) are causing injury to livestock, whether by serious overgrazing of pastures, competing with any such livestock for supplementary feeding, or otherwise; or

(iv) constitute a danger or a potential danger to public safety.

NatureScot also need to be satisfied that there are no other powers adequate to deal with the situation and that the killing is necessary to prevent further damage or injury or to remove the danger or potential danger.

The DWG recommended that that list should be expanded to include damage to the natural heritage, which is defined as including “flora and fauna, geological and physiographical features and the natural beauty and amenity of the countryside”. Throughout the 1996 Act, the natural heritage is included as a purpose for deer management action and intervention, for example prevention of damage to the natural heritage is a reason for which NatureScot can enter into voluntary control agreements under section 7 or for which deer can be culled out of season under section 5.

With regard to their recommendation that the natural heritage should be included here at section 10, the DWG went on to comment that -

“the questions in any situation involving the natural heritage should not be about the density of deer and whether it is higher than normal. The questions should be whether there is evidence of damage to the natural heritage and whether that damage is judged sufficient in terms of the value of the particular aspects of the natural heritage involved to warrant the use of s.10 powers, all factors considered.”

We agree with the DWG that bringing section 10 in line with other sections of the Act which relate to NatureScot intervention would improve the deer management process, for example we envisage circumstances where NatureScot may have voluntary control agreements in place (which outline the deer management actions that land managers will take) but where some short term intervention would support delivery of those agreements.

We are also proposing a legislative amendment which will permit NatureScot to authorise someone else (for example a contractor) to enter onto land for a broader range of purposes. Under the current legislation, NatureScot can authorise someone else, such as a contractor, to enter land if it relates to NatureScot’s role in either voluntary deer management control agreements or compulsory control schemes.

The DWG proposed that NatureScot should also be able to authorise someone else, such as a contractor, to enter land if it relates to emergency measures under section 10 of the 1996 Act. There have been circumstances in the last few years where NatureScot have had to use those section 10 powers to carry out deer management, and NatureScot staff have done so. We agree with the DWG that NatureScot should be able to authorise someone else to enter land for the purpose of carrying out emergency measures to prevent damage by deer.

We are not proposing that this should apply to section 11, as we are proposing that section 11 should be repealed.

Recommendation 64

We are proposing that in those circumstances where NatureScot (including someone they authorise) does have to enter land that the period of notice NatureScot has to give should be shorter.

Presently NatureScot must give two weeks’ notice of their intention to enter land to carry out their deer management functions. As outlined above, the purposes for which NatureScot can enter land relate to:

• voluntary control agreements (section 7)
• compulsory control schemes (section 8)
• emergency measures (section 10)

Given the nature of the emergency measures and the urgency with which intervention can be required where the purpose is preventing damage, we agree with the DWG that NatureScot should be able to enter land more immediately. We are seeking views on how long you think that notice period should be.

Recommendation 67

We are proposing a legislative amendment which would remove restrictions on NatureScot’s ability to enter onto land in order to undertake emergency measures to prevent damage by deer. The current section 10 powers can only be used as a last resort.

The DWG found that -

“the ambiguity and restriction of s.10(1)(b) should be removed by being repealed. The question with s.10 should not be whether it is the only power that is sufficient, but whether it is the most appropriate power in the circumstances.”

We agree with the recommendation made by the DWG, assessment of the most appropriate intervention is a matter for NatureScot, and where the circumstances require it we agree that NatureScot should be able to use these powers.

Recommendation 68 – Cost recovery

NatureScot can currently seek to recover costs where they carry out deer management actions using their powers at section 7 and section 8 of the 1996 Act.

While section 10 is intended for emergency interventions, we understand that those emergency circumstances may arise as a result of ineffective deer management. With that in mind and with regard to cost recovery, it is our proposal that cost recovery should be available in some circumstances for NatureScot where section 10 powers are utilised.

NatureScot would be required to give consideration to the individual circumstances, and would be able to waive the right to recover costs where appropriate.

Consultation Questions

Question: 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?

Answer options:

• Yes
• No
• Don’t know

Question: 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?

Answer options:

• Yes
• No
• Don’t know

Question: 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?

Answer options:

• Yes
• No
• Don’t know

Question: 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?

Answer options:

• Yes
• No
• Don’t know

Free text box: Please provide any further comments on the proposals set out in this section here.