Scottish Animal Welfare Commission - badger sett definition: letters

To: Professor Cathy Dwyer, Chair, Scottish Animal Welfare Commission 
From: Scottish Government Wildlife Management Team

On behalf of Jim Fairlie, Minister for Agriculture and Connectivity, I am writing to you to seek the Scottish Animal Welfare Commission’s views on whether the definition of a badger sett requires updating.

The definition of a badger sett was discussed during the stage 3 debate of the Animals & Wildlife (Penalties, Protections and Powers) (Scotland) Bill on 17 June 2020. During the stage 3 debate, Mairi Gougeon, the then Minister for Rural Affairs and the Natural Environment, pointed out that prior to committing to undertake a review of the definition of a badger sett that she would: “write to the Legislation Sub-committee of the Partnership for Action Against Wildlife Crime Scotland and the Scottish Animal Welfare Commission to seek their views on the matter.” Unfortunately, pressing Parliamentary and Ministerial commitments during the Covid-19 pandemic resulted in this work being curtailed until now.

Stage 3 debate on 17 June 2020

During the stage 3 debate on 17th June 2020 full cross-party support was given to an amendment proposed by Colin Smyth MSP bringing the penalties for offences against badger setts into line with those for offences against the animal, on welfare grounds. In this context it was noted that an accurate definition of a badger sett is important for the legislation to be effective as a disincentive. Please see: AWPPPS Bill – Stage 3 - Debate on proposed changes transcript

Provided by Scottish Badgers

Scottish Badgers have outlined that, a review of the scientific literature on how badgers use their main and secondary setts shows that setts which are not in ‘current use’ under the statutory definition, are used in rotation as an important part of badgers’ behaviour throughout the year. They have concluded that the statutory definition does not provide adequate protection for setts which has implications for badger welfare. A badger social group uses all their setts in their territory to support the life cycle, all are necessary to the welfare of the animals.

Sett interference accounts for the majority of up to seventy incidents per year that Scottish Badgers record that are deemed offences (damaged/destroyed, dug, blocked, agriculture, development). A very low proportion of incidents of sett interference are proceeded to prosecution, undermining the effectiveness of the legislation to disincentivise the offence. The low prosecution rate follows criminal defence cases in which even those caught digging into setts avoided being held to account by positing the narrowest definitions of ‘current use’ and ‘sett’.

Definition of a badger sett

The current definition of a badger sett is:

• “any structure or place which displays signs indicating current use by a badger.”

Scottish Badgers have provided the following definition as an alternative:

• “any sett within an occupied badger territory regardless of when it may have last been used. A sett in an occupied territory is classified as in current use even if it is only used seasonally or occasionally by badgers and is afforded the same protection in law.”

I would be grateful if you could provide me with your views on the matter. 

Yours sincerely,

Wildlife Management Team