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8th Report, 2010 (Session 3)

Stage 1 Report on the Wildlife and Natural Environment (Scotland) Bill

CONTENTS

Remit and membership

Report

Summary of conclusions and recommendations

Introduction

Amended legislation
Parliamentary scrutiny

Background to and purpose of the Bill

Scottish Government consultation

General principles of the Bill

‘Natural’ or ‘managed’ environment
Balance and compromise
Overall vision
The marine environment

Part 2: wildlife under the 1981 Act

What the Bill proposes
Game management
Enforcement of wildlife crime
Raptor persecution
Areas of Special Protection
Snaring
Invasive and non-native species
Species licensing and protection

Part 3: Deer

Background
What the Bill proposes
Duty to manage deer sustainably
Deer Management Groups
Code of practice
Control agreements and schemes
‘Serious damage’ v ‘damage’
Owner-occupier shooting during close seasons
Competence in shooting deer
Close seasons

Part 4: other wildlife

Protection of badgers
Muirburn

Part 5: Sites of Special Scientific Interest

Part 6: General

Financial issues
Financial Memorandum
Resourcing of additional SNH duties

Annexe A: Subordinate Legislation Committee report

Introduction
Overview of the bill
Delegated powers provisions
Section 14(5) – Power to specify invasive animals and plants outwith their native range which specified persons must provide notification of.
New section 14B(1) of the Wildlife and Countryside Act 1981
Power conferred on: Scottish Ministers
Power exercisable by: Order made by statutory instrument
Section 15 – Non-native species code
Section 18(3) and (4) – Delegation of a licence granting power to a local authority
Section 23 – Deer management code of practice
Section 27(7) – Protection of Badgers

Annexe B: Letter from the Finance Committee

Annexe C: Extracts from minutes of the Rural Affairs and Environment Committee

Annexe D: Oral evidence and associated written evidence

Annexe E: Other written evidence

Remit and membership

Remit:

To consider and report on agriculture, fisheries and rural development and other matters falling within the responsibility of the Cabinet Secretary for Rural Affairs and the Environment.

Membership:

Aileen Campbell
Karen Gillon
Liam McArthur
Elaine Murray
Peter Peacock
John Scott (Deputy Convener)
Maureen Watt (Convener)
Bill Wilson

Committee Clerking Team:

Clerk to the Committee
Peter McGrath

Senior Assistant Clerk
Nick Hawthorne

Assistant Clerk
James Drummond

Committee Assistant
Iain Weston

Stage 1 Report on the Wildlife and Natural Environment (Scotland) Bill

The Committee reports to the Parliament as follows—

summary of conclusions and recommendations

1. It is clear to the Committee that the consultation carried out by the Scottish Government, some of which is on-going, has been appropriately extensive.

2. The Committee notes the sheer volume of evidence and background information submitted to it during its scrutiny of the Bill, some of which contained contradictory information. The Committee further notes the difficulty organisations and members of the public may face in attempting to seek clarity on the evidence which may have informed many of these policy decisions.

3. No particular criticism of the Policy Memorandum which accompanied the Bill was made in evidence to the Committee. The Committee found the Policy Memorandum to be broadly helpful in explaining the policy behind the provisions contained in the Bill and the degree of consultation undertaken.

4. The Committee notes that the Bill is intended as a package of measures relating to wildlife and the natural environment and is broadly supportive of the principle of updating and strengthening regulation in the areas covered by the Bill, and of improving the efficiency of the existing legislation. The Committee therefore supports the general principles of the Bill.

5. However, the Committee also recognises that there are a wide variety of proposals in the Bill on distinct subjects, and does have a number of recommendations, questions and concerns on some of these issues. The Committee therefore draws the attention of the Scottish Government to its comments on each part of the Bill, as the Committee believes there is work required at Stage 2, should the Bill pass to that Stage, to further update, strengthen and improve the existing legislation.

6. The Committee notes the comments made in evidence on the extent to which the Scottish environment is ‘managed’ or ‘natural’. The Committee accepts that the management of land plays a significant role in creating and sustaining the types of biodiversity and landscape that have come to be valued and understood as ‘typically’ Scottish and, as such, many land management practices should be valued for the contribution they make to public goods. This includes employment of local people in rural areas.

7. It is clear to the Committee that cooperation is going to be vital if future management of Scotland’s wildlife and managed environment is to be successful. Different management objectives need to be acknowledged and accepted if people are going to work together successfully to achieve an appropriate balance.

8. With regard to concerns raised by the RSPB and SE Link that the Bill lacks a “narrative”, the Committee does not necessarily see the role of legislation, in every case, as providing an “overall vision”, but rather setting out legal obligations that are robust and clear enough to be interpreted in a court of law in the way Parliament intended.

9. The Committee notes the evidence it received calling for the Bill to be amended to establish ecologically coherent networks and considers it important that further thought be given to ensuring that ecologically coherent networks are set up that can cope with the challenge of climate change or other factors causing variations in the range, population health and migratory patterns of species.

10. The Committee would welcome comment from the Scottish Government on what establishing ecologically coherent networks would mean in a Scottish context and how such networks could be established in practice.

11. The Committee also notes the Minister’s comments that the Bill was not the appropriate vehicle for taking the issue forward. The Committee asks the Scottish Government to consider whether the emerging land use strategy may be a suitable vehicle for making progress on this issue.

12. The Committee notes that the safeguarding of Scotland’s biodiversity requires the private sector, which holds most of Scotland’s rural land, to play its part. A variety of levers - legislation, codes of practice, policy and funding (which includes cross-compliance) – are already in existence. The Committee invites the Scottish Government to consider whether it is making best use of these levers in order to ensure that the country overall meets its biodiversity target.

13. The Committee considers that the case for consolidating the law in this area was very well made in evidence to it, particularly as even legal experts were of the view that the law was complex and difficult to follow. The Committee therefore recommends that, following the passage of this Bill, serious consideration should be given to consolidating the current range of legislation.

14. The Committee also notes comments made to it on how difficult the task of consolidating the law in this area may, or may not, be. The Committee was encouraged by comments made by Professor Colin Reid that, given the availability of legal databases and other tools, consolidation needn’t necessarily be an overly burdensome task. The Committee considers that the fact that consolidation might be difficult should not stand in the way of viewing this as a priority.

15. The Committee notes the discussions which took place on what the appropriate levels of parliamentary scrutiny, if any, should be, for the codes of practice provided for by the Bill. The Committee considers that the codes established by the Bill should be subject to Parliamentary scrutiny, given that the INNS code helps establish liability for offences created by the Bill, and the deer code details circumstances which could lead to SNH intervening in the use of a person’s property. The Committee notes the precedent for other codes of practice, such as those concerning the welfare of cats and dogs, to be subject to Parliamentary scrutiny. The Committee therefore recommends that the codes of practice relating to both deer management, and INNS, should be subject to parliamentary procedure and that the Scottish Government gives serious consideration to using the affirmative procedure for the INNS code.

16. The Committee draws the attention of the Scottish Government to the comments raised by the Crown Estate above and recommends that the Government clarify the issue with the Crown Estate before Stage 2.

17. The Committee recognises that shooting for sport, provided it is conducted in an environmentally responsible manner, is an important aspect, both economically and culturally, of Scottish life. The legal and policy framework encompassing the shooting industry must however continue to adapt to reflect evolving societal attitudes to field sports and shooting in particular. The Committee welcomes the Bill as a process in that evolution.

18. There was consensual support in evidence for the modernisation of game law and the abolition of game licenses. The Committee is content with these provisions.

19. The Committee notes the concerns raised in some submissions about the change in status of game birds, but is reassured that the provisions in the Bill do not alter, in any significant way, the legislation surrounding the release or management of game birds in Scotland.

20. The Committee also notes, however, that a future administration in Scotland could, by negative procedure, amend the legislation to remove a game species from the list of birds which may be killed or taken outwith the close seasons. As this would be a radical change, the Committee recommends that any proposal to remove the game species from Schedule 2 of the 1981 Act, be subject to affirmative, rather than negative, procedure.

21. The Committee notes the comments made by the RSPB that although it is not recommending removal of any species from the current list of quarry species, it would welcome better record-keeping and more robust statistics on bag catches to enable populations to be monitored more dynamically. The Committee also notes that no other suggestion has been made to it to remove birds from the lists contained in the Schedules to the 1981 Act as amended by the Bill.

22. However, the point made by the RSPB about the need for better record-keeping and monitoring of mortality rates of certain species on estates and bag counts, should be further considered by the Scottish Government. The Committee is under the impression that the vast majority of estates keep records of what is shot on their land, and that it should therefore be possible to make this information more widely available to inform scientific analysis of the health of a particular species. If there are concerns regarding commercial sensitivities, provision should be made to enable such evidence to be anonymised.

23. The Committee is aware that the management of significant numbers of geese is a matter of some urgency to certain communities in Scotland, and that ways of tackling the problems often need to be specific to local situations.

24. The Committee looks forward to the results of the goose review. The Committee recommends that the Scottish Government give detailed consideration to any proposals or recommendations that emerge from the review, and assess whether any of them would be best taken forward as part of this Bill.

25. The Committee supports the rationalisation of poaching offences in the Bill to create a single poaching offence.

26. The Committee addresses the wider issue of enforcement of wildlife crime offences, and available appropriate resources, later in this report. However, the Committee is of the view that the removal of the current power which landowners and their employees have to apprehend suspected poachers is not the real issue. The issue is whether there are appropriate resources within the police forces across Scotland to respond appropriately and timeously to reported incidents of wildlife crime.

27. The Committee notes that the Bill does not prohibit the killing or taking of game birds on Sundays or Christmas Day, but rather of other quarry species (geese, ducks, rails (other water birds) and wading birds). The Committee understands that not shooting game for sport on Sundays and Christmas Day is a matter of cultural convention.

28. The Committee notes that there is, therefore, an anomaly in legislation, which allows shooting of certain species on Sundays and Christmas Day, but not others. The Committee recommends that the Scottish Government takes the opportunity to addresses this anomaly during the passage of this Bill.

29. The Committee considers catching-up to be of value to those managing game birds. The Committee notes the apparent uncertainty over the lawfulness of catching-up and welcomes the clarification provided in the Bill that it is legal to do so. However, the Committee notes the evidence from landowners and managers who consider the 14 day period for catching-up certain game birds in close season is not sufficient.

30. The Committee asks the Scottish Government what welfare, environmental or economic reasons there are for setting the catching-up period at 14 days? If there are no such particular reasons, the Committee would be minded to recommend that the Scottish Government amends the Bill at Stage 2 to extend the period for catching-up.

31. The Committee notes the comment made by the Game and Wildlife Conservation Trust proposing the inclusion of black grouse in the catching-up provisions but does not have sufficient information regarding the possible consequences of such a change to make any recommendation. The Committee therefore draws this to the attention of the Scottish Government for further consideration.

32. The Committee supports the introduction of a close season for both brown and mountain hares.

33. The Committee notes the evidence on whether the close season, for brown hares in particular, should be reduced by a month. The Committee is not clear on whether reducing the close season by such a time would have any significant negative welfare impact on live young and therefore asks the Scottish Government to reconsider the close season dates to ensure that they take account of the welfare of live young specifically.

34. The Committee appreciates that it is sometimes necessary to manage hare populations. In particular the Committee notes evidence that the tick-borne louping-ill virus can be carried by hares, which might present a potential problem in terms of transfer of tick to sheep and grouse, and also a possible threat to public health, in terms of Lyme disease.

35. However local population levels should be carefully monitored. The Committee notes the research being carried out by SNH to assess the extent of local populations of mountain hares and recommends that the Scottish Government give this full consideration when it is published.

36. The Committee asks the Scottish Government to note the concerns raised by falconers that the Bill may penalise them for inadvertently allowing a falcon to take a hare, rather a rabbit, during the close seasons.

37. The Committee notes the extensive evidence it received on the issue of single witness evidence. It is clear to the Committee that the Scottish Government’s reason for retaining single witness evidence for poaching was to maintain the status-quo.

38. The Committee appreciates the rationale for being able to convict certain wildlife crimes on the basis of single witness evidence, because of how and where these types of crimes are likely to happen. The Committee notes the evidence which called for single witness evidence to be extended to other wildlife crimes.

39. On the other hand, the Committee notes the evidence it heard that it is extremely rare that any alleged offence of poaching or egg stealing to be prosecuted on the evidence of a single witness, and that there is therefore little to be gained by extending the use of single witness evidence for other wildlife crimes.

40. The Committee was not clear, despite extensive evidence taking, on how single witness evidence could practically be applied, and whether in practice corroborative evidence is always required and, if so, what such evidence would amount to.

41. A majority of members agree that the law on single witness evidence should be made consistent on the basis that the same distinctive evidential considerations that apply for poaching offences also apply for many other wildlife crime offences, e.g. raptor poisoning.1 Some members consider that single witness evidence should be admissible for other wildlife crimes, such as raptor poisoning, whilst other members consider that single witness evidence should be inadmissible in all poaching or wildlife crime cases.

42. The Committee notes the evidence received that a significant problem in tackling wildlife crime is the lack of consistency by the police, across Scotland, in responding in a timely and appropriate fashion.

43. The Committee notes that the Partnership for Action Against Wildlife Crime Scotland has recently established a definition of ‘wildlife crime’. The Committee recommends that the Scottish Government ensures that this definition is used by all police forces in Scotland in order to ensure a consistency of approach in responding to reports of wildlife crime and properly recording such instances. The Committee also notes that a consolidation and rationalising of the law regarding wildlife crime may enable an even clearer definition to be established in future.

44. The Committee commends Grampian Police as an exemplar of investigating wildlife crime and recommends that the Scottish Government uses it as a best practice example that should be studied by other police forces in Scotland. The Committee accepts that if resources were deployed more effectively – for example more officers being designated as having responsibility for responding to wildlife incidents, – it would help in terms of proper recovery of evidence and lead to a reduction in wildlife crime.

45. The Committee2 is encouraged by the Minister’s comments that the Scottish Government was ‘open’ to giving further consideration to the request by the SSPCA that its powers be extended to allow them to investigate wildlife crimes, where a dead animal is involved. On the basis that this is likely to be the last piece of wildlife legislation considered for some time, the Committee recommends that the Scottish Government gives consideration to putting an enabling power in the Bill to allow for the possible extension of the SSPCA’s powers, subject to the outcome of a full consultation on the proposal and endorsement by Parliament.

46. Finally, the Committee notes efforts being made to encourage people in rural communities, whether they be gamekeepers, environmentalists, ghillies, farmers etc, to train as special constables to provide further support in the detection of wildlife crime. The Committee also notes that it may also be possible for SSPCA officers to train as special constables.

47. The Committee condemns as wholly unacceptable the illegal killing of raptors which continues across Scotland. The Committee recommends that the Scottish Government instructs police forces to investigate rigorously suspected cases of raptor persecution. The Committee also recommends that the Scottish Government likewise instructs the Crown Office and Procurator Fiscals office to prosecute wildlife crime vigorously.

48. The Committee concludes, from all evidence taken on this issue, that detection, investigation and prosecution of this crime is not resulting in a significant reduction in cases of raptor persecution, and that this should be addressed.

49. The Committee welcomes the Scottish Government’s intention to bring forward an amendment at Stage 2 to introduce a vicarious liability offence in the Bill, which it considers to be a helpful step in the right direction. The Committee awaits further detail on this, which was not available before the conclusion of evidence-taking at Stage 1. The Committee recognises there could be significant challenges in securing convictions under such new provisions, but believes the strengthening of the law in this regard is a helpful addition to the range of provisions available for potential prosecution.3

50. The Committee notes that the majority of private landowners are appalled by raptor persecution. The Committee considers that such landowners should have nothing to fear from a vicarious liability provision.4

51. The Committee welcomes the principle of the estates initiative, a voluntary good governance scheme for private land managers currently being prepared by the SRPBA, and agrees with the Minister that the scheme should be supported and given an appropriate amount of time to become established. However, the Committee also notes that the scheme will be voluntary and will therefore lack the power to compel estates that do not wish to take part. The Committee would welcome clarification from the Minister on how she plans to support the initiative.

52. The Committee accepts that it would represent a challenge and a significant development of policy to introduce a fully worked up system for licensing sporting estates in the Bill at this stage. The Committee also notes that the issue would not have been subject to consultation and as a result introducing such a system would be inappropriate at this time. However, the Scottish Government may wish to consider the appropriateness of introducing an enabling power in to the Bill which would permit them to introduce a licensing scheme, only after full consultation with stakeholders and parliamentary scrutiny under the super-affirmative procedure. Should it take the power, the Scottish Government could consider formally adopting the estates initiative with appropriate modifications as a code of conduct applicable to all estates. However, any such power should only be used if the Scottish Ministers are not satisfied that the voluntary approach to good governance and any vicarious liability offence are working. 5

53. The Committee notes Sheriff Drummond’s proposal to establish a presumption of guilty intent for anyone found in possession of a regulated substance. The Committee also notes his comments on whether an employer could be proven to have knowingly caused or permitted the possession of such a substance. The Committee considers that Sheriff Drummond’s proposals, and the introduction of a vicarious liability offence, are not mutually exclusive, and invites the Scottish Government to consider the proposal.

54. The Committee also notes the view that there is a further gap in the armoury of potential offences, that which seeks to catch those “concerned in” the use of illegal poisons for the purpose of raptor persecution or in other activity “concerned in” the offence of bird persecution. The Committee urges the Scottish Government to consider developing further offences which cover these points to further strengthen the grounds for potential prosecution.6

55. The Committee invites the Scottish Government to consider the merits of an announcing an amnesty on illegal substances such as carbofuran.

56. The Committee recommends that the Scottish Government reports to Parliament annually on the number of illegal raptor killings, detailing the number of cases brought and those which were successfully prosecuted.

57. The Committee is broadly satisfied that the protections afforded by the ASP designation have been replicated in other legislation and that most ASPs can be abolished without the areas concerned suffering any reduction in the levels of protection afforded and without increasing threat to any wild birds.

58. The Committee notes the concerns raised by the RSPB with regard to the site at Loch Garten and also notes the comments made by SNH that, in its view, there is no threat to the site at Loch Garten by removing the ASP status, and that powers contained in other legislation would provide equitable levels of protection.

59. However, the Committee retains a concern that the levels of protection at Loch Garten, currently afforded by the ASP, will not be automatically replicated in existing legislation, and urges the Scottish Government to work with SNH and the RSPB to ensure that the site at Loch Garten could not suffer, or potentially suffer, as a result of the loss of its ASP status.

60. The Committee acknowledges that snaring provokes a strong, emotional response in Scotland and that there are many people who hold strong views on whether or not snaring should be permissible. It is clear that the Scottish Government has sought a compromise in the Bill, which seeks to find a balance between an outright ban and extensive and loosely regulated use of snares.

61. The Committee respects the deeply held views of those who support an outright ban on the use of snares because of their belief that they are inhumane, indiscriminate and out-dated. The Committee notes the evidence it received which detailed cases of animals suffering significantly, both whilst held in a snare, and afterwards, when released. The Committee also notes the evidence received on the cases of non-target species being caught in snares, from wild animals, such as otters, badgers and capercaillie, to pets, such as dogs.

62. However, the Committee also acknowledges that pest control is a vital part of land management and that, if properly regulated and managed, limited and appropriate use of snares should continue to be an option for land managers in Scotland.

63. The Committee recommends that the Scottish Government works with the relevant bodies to continue to secure further advances in snaring technology and in our understanding of animal behaviour. Both these factors should help in the development of more humane snares and snaring techniques and reduce the amount of non-target species caught.

64. The Committee invites the Scottish Government to take stock, after an appropriate period of perhaps five years, as to the outcomes of the snaring provisions and whether they have been deemed to have had a positive effect. Accordingly the Committee invites the Scottish Government to consider whether to take a power to enable them to ban snaring. Such a power should only be exercised under the super-affirmative procedure and only if the Scottish Government considers that the current approach is not working and cannot be made to work.

65. The Committee recommends that the Scottish Government works closely with those delivering the relevant training courses on snaring to ensure that everyone who requires the training receives it no later than two years following the commencement of the provision.

66. The Committee was encouraged by the Minister’s assurances that animal welfare issues were being discussed at training courses for snare operators. The Committee considers such input to be important in helping to reduce the potential suffering of animals caught in snares and in underlying that snaring is not an activity to be undertaken lightly.

67. The Committee notes the concern that tag coding snares is impractical but also notes that this is a minority view. The Committee supports the introduction of identification tags on snares.

68. The Committee asks the Scottish Government to give consideration to issuing a separate identification number for each individual snare tag. The Committee also recommends that the Scottish Government ensures that such numbering be sequential, to allow for easy identification, and that records are kept of which numbers have been issued to which operators. Alternatively, the Committee asks the Scottish Government to consider fitting a barcode, or some other means of electronic identification, to each tag which could easily and practically be used to keep records of when a snare had last been inspected.

69. The Committee asks the Scottish Government to note the points raised regarding the legal presumption in the Bill, which states that the ID number on a snare would relate directly to the person who physically set the snare. The Committee further asks the Scottish Government to consider this issue alongside the Committee’s comments on the possible issuing of a unique sequential number for each snare tag.

70. The Committee notes the comments made on the inconsistency between domestic and EU legislation on the definition of a snare and how this leads to uncertainty about licensing snares as a method of catching mountain hares in particular. The Committee recommends that the Scottish Government consider how best to correct this anomaly.

71. The Committee notes the concerns regarding the Bill’s establishment of a presumption against release of non-native species, and also the views of those in favour of the policy. The Committee supports the general no-release presumption provided for in the Bill.

72. The Committee notes the volume of evidence which, rightly, highlights the potential difficulties in terms of the clarity of the legislation and the guidance, of the definition of terms such as ‘in the wild’ and ‘native range’. It is very important that such definitions be clear and easy to understand.

73. The Committee welcomes the Scottish Government making available an early draft of the code which contains draft definitions, which seem broadly helpful. The Committee also notes the Scottish Government’s intention to consult widely on these definitions.

74. The Committee notes that roadside verges are defined as non-wild in the draft code, and that there is particular potential for invasive plants to escape from such verges into the wild. The Committee would not want to prevent local communities from planting colourful displays to brighten up their area. However, the Committee asks the Scottish Government to give further consideration to whether it is appropriate for roadside verges to be designated as being wild, and, if it is considered appropriate, whether any additional measures could be taken to limit the risk of escapes from such areas.

75. The Committee notes that the code of practice on invasive non-native species will be vital in providing clarity on all relevant matters, from definition of the frequent terms involved, to how species control orders will operate. The Committee welcomes the Scottish Government’s intention to fully consult on its draft code during the Bill’s passage through Parliament and considers that it is important that the final code be subject to the affirmative procedure of parliamentary scrutiny.

76. The Committee considers that a system of Species Control Orders is necessary as a backstop to the general invasive non-native species regulations and to provide statutory backing for the code of practice.

77. The Committee also believes that it is appropriate for SNH to have powers to recover costs of removing a species from a property from the landowner, if circumstances warrant it (the Committee expects that this would happen very rarely). However, the Committee recommends that the Scottish Government ensure that the code of practice gives detail and examples of what would lead to this ‘polluter pays’ principle being invoked.

78. The Committee also recommends that the Scottish Government ensure that trigger points that would lead to a Species Control Order being issued also be detailed clearly in the code of practice.

79. The Committee believes it is important for one clearly identified agency to act as a lead coordinating body for INNS provisions in Scotland, to avoid issues being passed from one organisation to another with no action being taken to address the problem. The Committee supports the view of SNH that it should be the lead coordinating body for such matters and recommends this to the Scottish Government.

80. The Committee notes the concerns expressed in relation to the exemption of pheasants and red-legged partridges from the INNS provisions, to allow what are classified as non-native species to be generally released.

81. The Committee is not aware of pheasants or red-legged partridges currently being regularly released in Scotland in such high densities as to cause significant damage to habitat or biodiversity. However, the Committee asks the Scottish Government to consider putting a reserve power in the Bill to allow it to restrict the release of these species, should they ever be released in such numbers as to cause significant habitat and biodiversity damage.

82. The Committee notes the call for the Pacific oyster to be added to the list of exempted species and asks the Scottish Government to clarify its position with regard to the Pacific oyster.

83. The Committee recommends that the Scottish Government reconsider which body, or bodies, should be delegated the function of issuing licenses, in light of the volume of evidence received stating that it is not appropriate or necessary for local authorities to have this function.

84. Should local authorities remain as potential licensing bodies, the Committee invites the Scottish Government to clarify what might happen should a local authority decide against following the advice of SNH on whether to issue a species licence or not.

85. The Committee notes the concerns expressed in evidence over the provision of the Bill for licenses to be available where a clear social, economic or environmental case could be demonstrated. However, the Committee notes that the Scottish Government’s rationale for this was to close a loophole between domestic and European law, which currently allows for different criteria to apply to different species.

86. The Committee is, therefore, broadly content with the provision, but draws the attention of the Scottish Government to the comments made by SNH regarding the ‘big challenge’ of drafting the guidance to ensure that it is clear and easy to follow.

87. On the issue of whether there should be a right of appeal against refusal to grant a species licence, the Committee notes and accepts comments made by Professor Colin Reid, who said that it could be argued that as licences were for otherwise prohibited activities there was probably no difficulty from an ECHR/‛natural justice’ perspective.

88. The Committee is content with the law as it stands, that licences are available only in exceptional circumstances to control species which are otherwise protected. The Committee notes that currently anyone seeking a licence must make a robust case and expects this will continue after implementation of this Bill.

89. The Committee notes the Ministers comments on the status of pheasants as livestock. The Committee would be grateful for further clarification as to the point at which pheasants cease to be deemed as livestock.

90. The Committee notes the anomaly that beavers are currently being released under licence in Scotland, but are not specifically a protected species and draws that to the attention of the Scottish Government.

91. The Committee asks the Scottish Government to give consideration to how to best protect the native Scottish black bee, given its current classification as a farmed creature. The Committee also asks the Scottish Government to examine whether such bees could be considered as wild creatures, in order to secure their genetic protection. The Committee also asks the Scottish Government to consider whether the Bill could be used imaginatively to secure greater options in providing further protection to populations in areas such as Colonsay.

92. The deer aspects of the Bill are those that were most changed as a result of the consultation the Scottish Government conducted on the Bill. It appears to the Committee that the Government did indeed listen to concerns expressed in consultation responses from a large number of stakeholders and that the Bill represents an acceptable compromise.

93. The Committee notes the conflicting evidence it received on the success, or otherwise, of Deer Management Groups. However, the Committee notes that there was no evidence suggesting that DMGs should be abolished altogether, but rather a broad consensus that the DMG system was an appropriate one. However the Committee agrees that a review of how DMGs operate is required with a view to encouraging participation in them.

94. The Committee notes that the NFUS is not currently amongst those groups helping formulate the code of practice for deer management, and recommends that they, and at least one environmental organisation, are invited to participate at future meetings.

95. Given the importance of the code of practice for deer management, and the Scottish Government’s intention that the code stands as a de facto duty of sustainable management, the Committee recommends that the code be subject to parliamentary scrutiny.

96. The Committee also asks the Scottish Government to clarify whether all landowners will have to abide by the code and whether SNH will have powers of intervention on any type of land should the code be breached.

97. The Committee notes the importance of the Scottish Government, through SNH, having backstop powers to intervene, through a two-step process, in instances where deer management is not being successfully carried out, and where there is threat to livelihood, natural heritage or public safety The Committee supports the minor amendments in the Bill to the control agreement and control scheme provisions.

98. The Committee also supports the introduction of timescales to both the control agreement and control scheme systems, in an attempt to speed up the process and raise levels of participation. However, the Committee also notes the concerns of the British Deer Society that a six month time frame for a voluntary agreement to be made may require additional flexibility in certain circumstances and recommends that the Scottish Government considers giving SNH the power to extend this period at its discretion.

99. The Committee agrees with the evidence it received that there is currently an inconsistency in the Deer (Scotland) Act 1996, between the uses of the term ‘damage’ and ‘serious damage’. The Committee also agrees that there has been difficulty in establishing what ‘serious damage’, rather than ‘damage’, consists of. The Committee is therefore content with the provision in the Bill to remove the word ‘serious’ and use ‘damage’ consistently throughout the 1996 Act.

100. The Committee is content with the provision in the Bill relating to owner-occupiers shooting deer out of season, and considers it to be a technical change that should not, in reality, change the ability of landowners to control deer out of season, but allow for better regulation should any problems develop.

101. The Committee supports the provisions in the Bill which seek to establish a high standard of competency through non-statutory means.

102. The Committee also supports the backstop provision for compulsory testing and a register if the voluntary approach turns out not to be successful. 7

103. The Committee notes the concerns expressed in responses to the Scottish Government’s consultation on making alterations to close seasons for both male and female deer. The Committee is content that the issue has not been progressed in the Bill and that the 1996 Act contains sufficient flexibility for the Scottish Government to vary close seasons.

104. However, the Committee also notes the comments made by SNH that a consequence of other provisions in the Bill, such as those on establishing universal levels of competence for shooting deer and ensuring more consistent sustainable management of deer, may result in close seasons being unnecessary.

105. The Committee supports the proposals in the Bill which bring consistency to the issue of offences and sentencing under the 1992 Badger Act.

106. The Committee notes the concerns that it is important that proper provisions are available in the event of an outbreak of TB in badgers and further notes that Scotland is currently declared as officially bovine TB free. The Committee is of the view that the Protection of Badgers Act 1992 contains sufficient provision, should a cull of badgers be required at any future point, due to an outbreak of TB, and that this Bill makes no alterations to that position.

107. The Committee recommends that the Scottish Government gives consideration to amending the Bill at Stage 2 to address the points raised by several organisations with regard to the legal disturbance of setts that are no longer active.

108. However, the Committee would hope that common sense would prevail in an instance of a badger sett being disturbed to rescue a child or animal in distress, and takes the view that if the law allows that a parent or owner to be prosecuted in such circumstances, it is absurd.

109. The Committee notes that the season dates outlined in the Bill came about as a result of a great deal of effort to seek a compromise, and that there is broad agreement on the dates from most stakeholder organisations. The Committee therefore supports the proposed burning dates in the Bill.

110. The Committee is supportive of the provisions regarding licensed out of season burning for combating specific issues such as outbreaks of heather beetle and particularly poor weather during the season, and also to allow scientific experiments.

111. However, it is important that full account is taken of the effect such burning could have on various soils, habitats and wildlife and that all out of season burning is appropriately monitored and managed in strict adherence to the muirburn code.

112. The Committee notes that muirburn can be a very helpful land management tool that has economic, social and environmental benefits. It is also aware that if poorly and/or irresponsibly practised it can have a negative effect on wildlife, such as ground nesting birds, habitat, soil and biodiversity. The Committee supports the muirburn code and regulations in trying to prevent poor practice. With regard to SEPA’s comments regarding muirburn causing soil damage, the Committee asks the Scottish Government if it is possible to withdraw or limit funding to any landowner who was not complying with the muirburn code and keeping their land in good environmental and agricultural condition and, if so, whether there have been any instances of this.8

113. The Committee supports the amendments in the Bill to the notification requirements with regard to muirburn.

114. The Committee is broadly content with the proposals regarding SSSIs, which appear to be in the interests of simplifying the current administrative arrangements.

115. The Committee notes the comments made by SNH regarding its concerns about how the extra duties the Bill places on it will be resourced in the current economic climate.

introduction

Amended legislation

116. The Wildlife and Natural Environment (Scotland) Bill9 is almost entirely a Bill which would amend other legislation. The Act that would be most amended by the Bill is the Wildlife and Countryside Act 1981 (c.69)10, which is referred to from this point on as “the 1981 Act”.

Parliamentary scrutiny

117. The Bill was introduced in the Scottish Parliament on 9 June 2010 by the Minister for Environment. The Bill was accompanied by Explanatory Notes,11 which include a Financial Memorandum, and by a Policy Memorandum,12 as required by the Parliament’s Standing Orders.13 The Bill was also accompanied by a Delegated Powers Memorandum.14

118. On 15 June 2010, under Rule 9.6 of Standing Orders, the Parliamentary Bureau referred the Bill to the Rural Affairs and Environment Committee to consider and report on the general principles.

119. No secondary committee was appointed to scrutinise the Bill. However, the Finance Committee did seek views from the Scottish Government, Scottish Natural Heritage (SNH) and the Scottish Gamekeepers Association (SGA) on the Financial Memorandum to the Bill, and subsequently wrote to the Committee, appending the responses. The Subordinate Legislation Committee has reported on the delegated powers contained in the Bill.15 The Committee notes and comments on any recommendations made by those committees at appropriate points in this report.

120. The Committee issued a call for views on 10 June 2010, with a closing date of 1September 2010. Sixty-one written submissions were received (including supplementary submissions) from a wide range of individuals and organisations. The Committee also received a significant amount of information16, which has been made publicly available on the Committee’s webpage, including drafts of codes of practice introduced by the Bill on deer management and invasive non-native species, which were provided by SNH and the Scottish Government respectively.

121. The Committee took evidence in public session at six meetings between June and November 2010, one of which was an external meeting held on 7September2010 in Langholm, Dumfriesshire. At that meeting an opportunity was provided for members of the audience to participate in an ‘open mic’ session, and engage with the Committee on issues which had been raised by the Bill.

122. The Committee also undertook three fact-finding visits: to the Langholm Moor Demonstration Project (7 September), and to the Alvie Estate and the RSPB reserve at Abernethy (both on 21 September).

123. Extracts from the minutes of all the meetings at which the Bill was considered are attached at Annexe C. Where written submissions were made in support of evidence given at meetings, these are reproduced, together with the extracts of the Official Report of the relevant meetings, at Annexe D. All other written submissions, including supplementary written evidence, are detailed at Annexe E.

124. The Committee would like to put on record its thanks to all those who have assisted it with its scrutiny of the Bill and participated in the meetings and fact-finding visits, which proved invaluable to the Committee’s understanding of the wide range of issues covered by the Bill.

125. In particular, the Committee would like to thank all who assisted with, and attended, the external meeting held at the Buccleuch Centre, Langholm on 7September 2010; the partners of the Langholm Moor Demonstration Project, who gave the Committee a detailed explanation of the project, its challenges and implications; Jamie Williamson of the Alvie Estate, near Aviemore, for his helpful insights into managing a sporting estate; and the RSPB officials who are involved with the management of the Loch Garten and Abernethy reserves, for the helpful information and tour they gave the Committee.

background TO and purpose of the Bill

126. The Bill would, if passed, provide a range of measures designed to update legislation protecting wildlife in Scotland and to ensure that legislation which regulates and manages aspects of the natural environment is fit for purpose.

127. The Bill deals with a wide range of issues under that broad theme, in 35 sections (in 6 parts) and a schedule. Specifically, the Bill makes provisions intended to—

  • modernise game law;
  • abolish the designation ‘areas of special protection’ (due to powers with similar effect existing in other legislation);
  • improve snaring practice;
  • regulate invasive non-native species;
  • change the licensing system for protected species;
  • amend current arrangements for deer management and stalking;
  • strengthen the law relating to the protection of badgers;
  • make changes to the times at which muirburn may be practised and how it is managed; and
  • make operational changes to the management of Sites of Special Scientific Interest (SSSI).

128. All of these issues are specifically addressed in the main body of this report, together with related issues which were part of the Scottish Government’s original consultation, or which emerged during evidence taking.

Scottish Government consultation

Details

129. The Scottish Government published a consultation document17 in June 2009, which included a rationale and proposals for what would form a draft Wildlife and Natural Environment (Scotland) bill. The consultation took the form of 84 questions seeking stakeholder views on a wide range of potential reforms to wildlife and natural environment legislation.

130. The Scottish Government received 456 responses and commissioned EnviroCentre Ltd and CAG Consultants Ltd to analyse the responses. The commissioned analysis was published in February 2010.18

131. The Scottish Government also established a formal stakeholder forum, which met on three occasions at various stages of the Bill’s development, prior to its introduction in the Scottish Parliament. The Minister for Environment met stakeholder groups in December 2009 and January 2010 to discuss the prospective bill.

132. Finally, a liaison group was established, consisting of representatives from public bodies, (COSLA, the Deer Commission for Scotland (DCS), the Forestry Commission, the Scottish Environmental Protection Agency (SEPA) and SNH) and the Scottish Government, which also met on three occasions. It is believed that the Scottish Government intend that this group should continue to meet as the Bill progresses through the Parliament.

Impact

133. As a result of the Scottish Government’s consultation on the contents of a draft Bill, it decided not to pursue some of the proposals contained in the consultation questions.

134. In particular, due to significant concerns raised in consultation responses and at stakeholder events, the Scottish Government decided not to pursue a number of proposals relating to deer management, such as introducing a duty of sustainable deer management, allowing close seasons for deer to be determined locally by deer management groups, and making statutory provision for deer management groups.

135. Certain other consultation proposals were also not taken forward in the Bill and these are discussed, where appropriate, in the relevant sections of this report.

Comment

136. There was broad consensus across a wide range of organisations that the Scottish Government’s consultation had been extensive and appropriately thorough. Most organisations said that they had been given appropriate opportunities to submit views, and that the Scottish Government was genuinely listening to the views of stakeholders before forming policy.

137. However, the Game and Wildlife Conservation Trust (GWCT) criticised the Bill for lacking any substantial evidence base, saying that—

“It is disappointing that many of the proposals have not been preceded by more evidence gathering. There is little evidence that the current laws pose real difficulties for land managers or that the proposed amendments will improve the conservation of Scotland’s wildlife.”19

138. The Committee was struck, not by the lack of statistics and evidence presented to it, but by the sheer volume and often contradictory nature of some of the information it received. The Committee received contradictory evidence on issues such as the number of raptors going missing or being killed, the impact snares have on animals held in them, whether foxes naturally predated live lambs, and the success of deer management groups.

139. It is clear to the Committee that the consultation carried out by the Scottish Government, some of which is on-going, has been appropriately extensive.

140. The Committee notes the sheer volume of evidence and background information submitted to it during its scrutiny of the Bill, some of which contained contradictory information. The Committee further notes the difficulty organisations and members of the public may face in attempting to seek clarity on the evidence which may have informed many of these policy decisions.

Policy Memorandum

141. No particular criticism of the Policy Memorandum which accompanied the Bill was made in evidence to the Committee. The Committee found the Policy Memorandum to be broadly helpful in explaining the policy behind the provisions contained in the Bill and the degree of consultation undertaken.

General principles of the Bill

142. The Committee notes that the Bill is intended as a package of measures relating to wildlife and the natural environment and is broadly supportive of the principle of updating and strengthening regulation in the areas covered by the Bill, and of improving the efficiency of the existing legislation. The Committee therefore supports the general principles of the Bill.

143. However, the Committee also recognises that there are a wide variety of proposals in the Bill on distinct subjects, and does have a number of recommendations, questions and concerns on some of these issues. The Committee therefore draws the attention of the Scottish Government to its comments on each part of the Bill, as the Committee believes there is work required at Stage 2, should the Bill pass to that Stage, to further update, strengthen and improve the existing legislation.

‘Natural’ or ‘managed’ environment

144. Scotland’s environment, ecology and ecosystems, have been affected by human beings for centuries, and what is considered to be the natural landscape and wildlife has changed accordingly. For example, natural predators of deer that once existed, such as wolves, no longer exist in Scotland, which means there are now many more deer than once would have been the case. Deer were also subject to other impacts, such as woodland clearances ­– which meant there was less native forest across Scotland than was previously the case, when swathes of forest covered large parts of the country – and, later, industrialisation. All of these factors affected the numbers of deer and their habitat, and therefore impacted on their behaviour and the consequences of that behaviour.

145. The ever-shifting state of biodiversity crops up throughout consideration of this Bill as an underlying theme, touching on subjects such as invasive non-native species (INNS). Questions were raised about how species were to be defined as either native or non-native, and within that, what the native range of species was determined as being. It was noted that the expanse and retreat of particular species was a dynamic process affected by issues such as climate change, change of habitat, and changes in species’ behaviour.

146. Pheasants are thought by many to be native to Scotland because they have been in the country for hundreds of years, but are, in fact, native to Asia. It is thought they were brought to Scotland originally during the Roman Empire. Other species, such as the rhododendron, grey squirrel, and European rabbit are also not native to Scotland, but are prevalent. The consideration of Scotland’s biodiversity is of particular significance given that Scotland is part of the UK, which consists of a relatively small group of islands, the biodiversity of which is prone to potential significant disturbance by the introduction of non-native species.

147. The Committee’s visit to the Langholm Moor Demonstration Project on 7September 2010, underlined the fact that what, superficially, appeared to be a vast, wild, natural area was, in fact, a rigorously managed environment. This point was emphasised by the Committee’s visit to the RSPB reserve at Abernethy, in the Cairngorms, and in evidence. Although the title of the Bill refers to the “natural environment”, the Bill actually deals with issues and practices involved with the, often robust, management of wildlife and the environment. The word ‘natural’ in the title of the Bill may, therefore, be a little misleading.

148. When it visited Langholm, the Committee learnt that the moor had previously lain unmanaged for a period of approximately ten years. The current partner managers of the moor explained that, during this period, habitat, species, and ultimately the biodiversity of the moor suffered a great deal. One result of the lack of management was that the moor had become over-run by foxes which predated on other wildlife on the moor. This lack of management, in turn, had had, over that period, a negative effect on vegetation and habitat. It was an interesting example of the consequences of leaving such an extensive area, unmanaged, even for a short time.

149. Jonathan Hall, of the National Farmers Union Scotland (NFUS), made just this point when giving evidence to the Committee, on 7 September 2010—

“It is excessive to include the word "natural" in the bill. Talking about the environment, environmental management and environmental legislation is sufficient to capture everything. The word "natural" is misleading. The vast majority of, if not all, Scotland's land mass is managed in some way, shape or form; it has the intervention of man somewhere upon it. Indeed, 5.6 million hectares, or about 80 per cent of the land mass, is under agricultural land management.”

150. The Committee also notes that farming and forestry policy, which impacts so significantly on the managed environment, is in a constant state of flux and therefore any legislation regulating it requires an appropriate level of flexibility. Current economic, social and environmental concerns, or definitions of what constitutes the ‘public interest’ may not be the same in five or ten year’s time, or beyond. A good example of this is the state of forestry in Scotland, and the shifting priorities that have existed over the years about the ideal amount and type of forest cover.

151. The Committee notes the comments made in evidence on the extent to which the Scottish environment is ‘managed’ or ‘natural’. The Committee accepts that the management of land plays a significant role in creating and sustaining the types of biodiversity and landscape that have come to be valued and understood as ‘typically’ Scottish and, as such, many land management practices should be valued for the contribution they make to public goods. This includes employment of local people in rural areas.

Balance and compromise

152. During the Committee’s fact-finding visits and extensive evidence taking, a word that kept recurring, whichever aspect of the Bill was being discussed, was ‘balance’. Central questions formed, such as;

  • what is the desired balance between different management objectives, such as grouse moor management, protection of certain species, forestry targets and environmental concerns, and how can it best be achieved?
  • is there a desired ‘right’ population number for different species, such as deer, hares, raptors, foxes, badgers, plants and trees? If so, why, and how can they best be managed?
  • if management is required, where is the correct balance between animal welfare concerns and the most practical forms of management? Is snaring a necessary and acceptable practice in certain circumstances, or an excessively cruel method of control, which should be banned? What would the consequences of a ban be?
  • are some interests being rigorously pursued to support a single species management, or ‘monoculture’ agenda? Should birds of prey ever be culled to protect other objectives?

153. Another word that kept cropping up during the Committee’s scrutiny was ‘compromise’. The Bill attempts to reconcile differing objectives and opinions into compromise positions in many areas, so any one policy does not unduly favour, for example, landowners or environmentalists, but supports core principles that can be shared by all.

154. It is clear to the Committee that cooperation is going to be vital if future management of Scotland’s wildlife and managed environment is to be successful. Different management objectives need to be acknowledged and accepted if people are going to work together successfully to achieve an appropriate balance.

Overall vision

155. The Royal Society for the Protection of Birds (RSPB) expressed a fundamental criticism of the Bill, stating that it contained “no overall narrative as to the Government’s long-term objectives for the environment”.20 This absence of what the RSPB called the “overall vision”21 was noted by other respondents, such as Scottish Environment Link (SE Link), as a broad criticism of the Bill.

156. This criticism of a lack of “narrative” was discussed with Professor Colin Reid, a professor of environmental law at the University of Dundee, at the Committee meeting on 6 October 2010. He posed the question, “what are we trying to achieve in the countryside?”22 This, it seems to the Committee, is an appropriate question to keep in mind throughout consideration of the Bill and when reading this report.

157. Responding to these points, the Minister for Environment said that the Bill was concerned with regulation and management and was very much about the practicalities involved in managing the countryside rather than providing an overall vision.23

158. With regard to concerns raised by the RSPB and SE Link that the Bill lacks a “narrative”, the Committee does not necessarily see the role of legislation, in every case, as providing an “overall vision”, but rather setting out legal obligations that are robust and clear enough to be interpreted in a court of law in the way Parliament intended.

Ecological coherence

159. The Scottish Wildlife Trust (SWT) raised the issue of “ecological coherence” in its written evidence. The SWT said that—

“The EU Habitats Directive of 1992 requires Member States ensure the ecological coherence of the Natura 2000 network to further the conservation of natural habitats and wild fauna and flora (Articles 2, 3 and 10). […] The [UK Habitats] Regulations do not address the need to transpose Article 3 or 10 of the Habitats Directive to make provision for the “improvement of the ecological coherence of the Natura 2000 network”. A new measure is required to encourage the management of landscape features which are of importance for wild fauna and flora, such as buffer zones to European sites and habitat stepping stones, for example, ponds or hedgerows.”24

160. During the passage of the Marine (Scotland) Bill, SE Link made a case for introducing a requirement to establish an ecologically coherent network of marine protected areas. In its written submission, it suggested that this Bill could do the same with Natura 2000 sites. Lloyd Austin of SE Link, expanded on this point when giving evidence to the Committee—

“No protected area exists on its own; it is part of the wider countryside, the wider ecosystem and the wider environment. That is one of the reasons why ecologists talk about the kind of coherent network of protected areas that, as you say, is now set out in the Marine (Scotland) Act 2009. We support such a great step forward and are grateful that the committee moved in that direction. In that respect, however, this bill has missed an opportunity to make it more than the sum of its parts [...] it is silent on what I would describe as the big picture or long-term conservation objectives. Most of those long-term vision statements exist in policy statements rather than in legislation; I agree that it would be difficult to set down a vision in law but nevertheless we feel that the delivery of those vision statements is often weak […] The bill could take this opportunity to link vision statements in the biodiversity strategy, the land use strategy, ministerial speeches or whatever to delivery, implementation, monitoring and enforcement.”25

161. When questioned on this by members, SNH said that the current provisions in the UK Habitats Regulations were adequate, and were actually wider than possibly intended. SNH suggested that the problem did not rest with the regulation, but rather with the original policy and provisions, in the EU Habitats Directive, which were considered “weak”.26

162. The Minister stressed again that the Bill was intended to be a practical statute dealing with regulation and management, and, as such, was not considered the appropriate vehicle to address the issue of ecologically coherent networks. She added that the Marine (Scotland) Act did not create criminal offences in a comparable way to this Bill and concluded that—

“I understand the drive to put such a statement in the bill, but I ask members to remember that doing so makes that very statement subject to argument, interpretation and application in ways, perhaps, that might not have been foreseen in the first place, particularly if the provision gives rise to a lot of liabilities and resource issues that have not been clearly thought through. Depending on the provision itself, we should be aware, conscious and careful of all of that.”27

163. The Committee notes the evidence it received calling for the Bill to be amended to establish ecologically coherent networks and considers it important that further thought be given to ensuring that ecologically coherent networks are set up that can cope with the challenge of climate change or other factors causing variations in the range, population health and migratory patterns of species.

164. The Committee would welcome comment from the Scottish Government on what establishing ecologically coherent networks would mean in a Scottish context and how such networks could be established in practice.

165. The Committee also notes the Minister’s comments that the Bill was not the appropriate vehicle for taking the issue forward. The Committee asks the Scottish Government to consider whether the emerging land use strategy may be a suitable vehicle for making progress on this issue.

Biodiversity duty

166. Leading on from the points raised by SE Link on coherent networks, Plantlife raised concerns in its written evidence with regard to biodiversity—

“The commitment by the UK and Scottish Governments to halt and reverse the decline in biodiversity by 2010 will, it is generally recognised, not be fulfilled. The current bill offers the Scottish Government the opportunity to fill the legislative ‘gaps’ in the biodiversity provisions of the Nature Conservation (Scotland) Act 2004.”28

167. The submission went on to make a number of suggestions as to how the Bill could address this, including introducing a requirement for public bodies to report to the Parliament on progress on meeting the current biodiversity duty, and improving the implementation of the Scottish Biodiversity Strategy.29

168. This was echoed by the SWT in written evidence—

“The duty on all public bodies and public officials to further the conservation of biodiversity was a very welcome aspect of the Nature Conservation (Scotland) Act 2004. Experience has now shown that there is a lack of accountability which undermines the delivery of that duty. Public bodies should be required to report to parliament on their compliance or otherwise with the biodiversity duty. All persons undertaking publicly funded work should be covered by the duty.”30

169. The Minister told the Committee that she was chair of the Scottish Biodiversity Committee and that such issues such as the effects of climate change on species were regularly discussed and kept under constant review.31

170. The Committee notes that the safeguarding of Scotland’s biodiversity requires the private sector, which holds most of Scotland’s rural land, to play its part. A variety of levers - legislation, codes of practice, policy and funding (which includes cross-compliance) – are already in existence. The Committee invites the Scottish Government to consider whether it is making best use of these levers in order to ensure that the country overall meets its biodiversity target.

Is the legislation becoming too muddled?

171. A recurring theme in evidence to the Committee was how complex, and potentially confusing, legislation in this area was becoming, and that this Bill added to rather than reduced this confusion. There were calls for a consolidation of the law in this area. Traditionally, consolidation of Acts involves bringing together relevant existing statutes into one single act, in order to simplify the statue book without making significant changes to the law. In the Scottish Parliament, such consolidation Acts are subject to an expedited Parliamentary procedure, although options to change the law under this procedure are extremely limited.

172. Professor Reid emphasised how difficult the law had become to follow at the Committee on 6 October, describing the current statute in this area as “atrocious” and “not fit for use”32. He argued that consolidating the legislation was essential. He also added that he was mystified as to why many thought such a consolidation would be complicated, adding that it had been avoided because it “does not win you votes”33 and was potentially resource intensive and, therefore, a low priority for administrations. He concluded that—

“[…] having clearer legislation is so important to ensuring public access and understanding. It helps you explain what the law is, which helps you ensure that it is understood and enforced.”34

173. This point was emphasised by Sheriff Drummond, Chair of the legislation, regulation and guidance subgroup of the Scottish Government’s Partnership for Action against Wildlife Crime (PAW), when he gave evidence to the Committee—

“I am slightly concerned about the direction that the law is beginning to take […] The law is becoming fragmented, so it is getting difficult to find and to see the direction in which it is going. If it is difficult for people such as myself and academics such as Professor Colin Reid to find the law, I only ask the committee to have sympathy for the operators who are trying to apply it on the ground […] I know that Professor Colin Reid strongly expressed the view that codification is necessary, but I fear that we might be getting past the stage at which codification is a realistic possibility.”35

174. Sheriff Drummond subsequently altered his position on this slightly,36 stating that he now considered that consolidation37 might be possible.

175. Professor Reid outlined to the Committee what tools were available to assist with a consolidation of the law—

“[…] there are commercially run electronic databases that give you at least a very good starting point for producing a more or less clean text of an act as amended ]…] many of the people who are working with the legislation day to day have their own electronic updates. Previously, they literally cut and pasted versions to work with.”38

176. The Minister told the Committee that she felt there was a good argument for consolidating the law in this area, and that she had sympathy for lawyers and others involved in understanding, interpreting and applying the law. She added that it might be desirable to consolidate a part of the law that the Bill covers, such as wildlife crime. However, the Minister also had some words of caution for the Committee—

“The issue is difficult. Wildlife crime is not the only area of legislation that I have come across, even in the two years in which I have been a minister, in which I can see that a consolidation bill might be the right way to go in theory, but in practice might be harder to achieve than we imagine.”39

177. It was also said by some that an overreliance on guidance and codes of practice was developing, which could lead to challenges being made to their quasi-legal status, and questions of transparency and accountability. Professor Reid also emphasised the need for all the resulting regulations and guidance to be accessible and accountable—

“There is an issue with codes of practice. The more important they become to how people understand the law and how they apply it, the more you have to consider whether they are being scrutinised properly. There is a huge difference between what is in the law, on which legal rights and prosecutions are based, and simple guidance. However, when that boundary gets blurred because the law is expressed so vaguely that, in practice, the guidance becomes more important, you need to think about how that guidance is presented, whether there is accountability for it and whether it can be accessed appropriately.”40

178. This point was also raised by the Parliament’s Subordinate Legislation Committee, which considered that the Scottish Government had not given adequate justification for the lack of parliamentary scrutiny proposed in respect of the code for INNS, and that further thought should be given to the scrutiny of the code on deer management.

179. The Minister expressed sympathy for the position of the Subordinate Legislation Committee. However, the Government considered it important that the approval process for codes of practice and other relevant guidance was kept sufficiently flexible to allow changes to be made swiftly so that they could retain relevance and respond to changing situations and demands as they occurred. The Minister added that the Scottish Government considered it important that any parliamentary procedure, in terms of scrutiny and approval, did not compromise that principle.41

180. The Committee considers that the case for consolidating the law in this area was very well made in evidence to it, particularly as even legal experts were of the view that the law was complex and difficult to follow. The Committee therefore recommends that, following the passage of this Bill, serious consideration should be given to consolidating the current range of legislation.

181. The Committee also notes comments made to it on how difficult the task of consolidating the law in this area may, or may not, be. The Committee was encouraged by comments made by Professor Colin Reid that, given the availability of legal databases and other tools, consolidation needn’t necessarily be an overly burdensome task. The Committee considers that the fact that consolidation might be difficult should not stand in the way of viewing this as a priority.

182. The Committee notes the discussions which took place on what the appropriate levels of parliamentary scrutiny, if any, should be, for the codes of practice provided for by the Bill. The Committee considers that the codes established by the Bill should be subject to Parliamentary scrutiny, given that the INNS code helps establish liability for offences created by the Bill, and the deer code details circumstances which could lead to SNH intervening in the use of a person’s property. The Committee notes the precedent for other codes of practice, such as those concerning the welfare of cats and dogs, to be subject to Parliamentary scrutiny. The Committee therefore recommends that the codes of practice relating to both deer management, and INNS, should be subject to parliamentary procedure and that the Scottish Government gives serious consideration to using the affirmative procedure for the INNS code.

The marine environment

183. In written evidence to the Committee, the Crown Estate raised a point requiring clarification—

“[…] it is not clear from the Bill how its provisions might be applied in the marine environment, and as owner of large parts of the foreshore and seabed The Crown Estate seeks further clarification around the obligations applying to land owners in relation to non-native species.”42

184. The Committee draws the attention of the Scottish Government to the comments raised by the Crown Estate above and recommends that the Government clarify the issue with the Crown Estate before Stage 2.

Part 2: wildlife under the 1981 Act

What the Bill proposes

185. Part 2 of the Bill is the most complex and controversial part of the Bill, containing provisions relating to the management of species, methods of taking/killing species (such as snaring), management and control of INNS, poaching and wildlife crime enforcement.

186. Part 2 of the Bill makes amendments to Part 1 of the 1981 Act. Part 1 of that Act—

  • regulates the taking, killing, sale and possession of all wild birds and of the species of animals and plants which are specified in Schedules to the Act;
  • prohibits certain methods of taking and killing birds and animals and regulates the use of other methods, including snares; and
  • regulates the introduction of non-native species.

187. Most activities prohibited under Part 1 are capable of being licensed for certain purposes under section 16 of the Act.

188. Part 2 of the Bill adds provision to the 1981 Act concerning—

poaching and protection of game species;

abolishing ‘areas of special protection’ (due to appropriate replication in other legislation);

restrictions on the use of snares;

replacing the regime for controlling invasive species;

amending and enabling the delegation of licensing functions under the Act; and

consequential changes to the powers of wildlife inspectors.

Game management

Background

189. The laws regulating game in Scotland date from the eighteenth and nineteenth centuries. They cover three main areas—

  • game licensing, which governs who may take and/or kill game, and deal in game;
  • poaching – the offence of illegally taking game, the penalties involved, and the enforcement mechanisms; and
  • close seasons – the dates between which game may be taken and/or killed.

190. Game law is governed by the following statutes—

  • the Game (Scotland) Act 1772 (c54);
  • the Game Act 1831 (c32);
  • the Night Poaching Act 1828 (c69);
  • the Game (Scotland) Act 1832 (c68);
  • the Game Licences Act 1860 (c90); and
  • the Poaching Prevention Act 1862 (c114).

191. Under the Game Licences Act 1860, before anyone (with some statutory exemptions) may take or kill game they must obtain a licence to do so. An annual licence costs £6. This price has not changed since 1968.

192. The Game Act 1831 and Game Licences Act 1860 together regulate who can sell game and the conditions of being a licensed dealer. Anyone intending to deal in game must obtain two licences – a local authority licence and an excise licence. The excise licence costs £4, and, as in the case of the licence to take or kill game, the price has not changed since 1968. The price of the local authority licence is set by individual local authorities and tends to be similarly low. Under section 4 of the Game Act 1831, it is an offence to trade game birds after ten days from the start of the close season of the relevant species. This close season on dealing was implemented to ensure that there was no market for meat illegally obtained during the close season, and to help game maintain bird populations.

193. The game-poaching laws create offences and enforcement mechanisms for the unlawful taking of game in Scotland. The legislation underpinning poaching offences dates from the 19th century and has not been substantially modernised since that time. The language is often archaic and some of the terminology no longer has common usage. This can give rise to anomalies and a lack of clarity of meaning. The enforcement provisions are also outdated with, for example, police having few specific powers to intervene proactively where poaching is suspected, and landowners or their representatives (e.g. gamekeepers), on the other hand, having powers to stop and apprehend people they suspect might be involved in poaching. For these reasons, the Scottish Government considers that there is a case for modernisation and consolidation of poaching law.

What the Bill proposes

194. The Bill would repeal the Game Acts and consolidate new provisions on game into the 1981 Act.

195. In order to abolish the requirements for game licences and licences to deal in game, the Bill repeals the game Acts that required these licences. Since modern refrigeration offers the possibility that game that has been killed during the shooting season could be sold throughout the year, the Bill would also repeal the restriction on selling game during the close season. To protect game, the Bill provides that it would be an offence to sell game that has been killed outside the shooting season, or that has been poached (i.e. taken without permission). Section 5 of the Bill contains amendments to the 1981 Act, which would have this effect. It would also make amendments to allow game birds bred in captivity, and game bird eggs, to be sold.

196. The Bill is intended to modernise game poaching offences. It would do this by repealing the Game Acts and bringing game birds, hares and rabbits within the scope of the 1981 Act. Section 2 of the Bill would change the interpretation provisions of the 1981 Act to bring game birds within its scope. Section 3 of the Bill would amend the definition of “wild bird” in the 1981 Act to apply it to game birds that are bred in captivity and then released. Section 3 of the Bill would also amend the 1981 Act to create closed seasons for game birds, during which they could not be hunted as game. These would be the same as the existing closed seasons under the Game Acts. Some species of game birds are bred in captivity, and then released. As part of this, gamekeepers sometimes “catch up” birds at the end of the shooting season to use them in captive breeding programmes. The Bill would amend the 1981 Act to allow this to continue.

197. Section 3 of the Bill would insert text into section 2 of the 1981 Act to allow game birds to be killed or taken outside the close season and would provide that only those with the legal right, or who had the permission of someone with that right, could kill or take game birds. Poaching would be the taking of a game bird without that right or permission, which would be an offence under section 1 of the 1981 Act. Section 7 of the Bill would insert new sections 11E and 11F into the 1981 Act, which would create an offence of poaching hares or rabbits without legal right or permission. Section 8 of the Bill would insert a new section 11G to create an offence of selling or possessing hares or rabbits taken illegally. The current distinctions between different poaching offences – depending on the number of people involved and whether the poaching occurs by day or by night – would be removed. Poaching offences would be subject to the same penalties as other offences under the 1981 Act – these are imprisonment of up to six months and/or a fine of up to level 5 on the standard scale (currently £5,000).

198. The Bill would repeal the unique powers that landowners have to apprehend suspected poachers and provide for standard police enforcement powers to apply to poaching offences.

Shooting for sport

199. A central question, when considering game management, is whether shooting for sport is an acceptable practice that should be supported and allowed to continue in Scotland. Although many aspects of this Bill relate directly to this question, the Committee did not receive a great deal of evidence, from either side of the debate, addressing the question directly. The evidence which was received seemed to suggest an already established tolerance between those who run commercial sporting estates and animal welfare groups which are fundamentally opposed to shooting for sport.

200. There were no direct calls in evidence for a ban on shooting for sport. In contributions made on this topic, fundamental objections also came with acknowledgments of the economic benefits to Scotland of shooting for sport. The Hare Preservation Trust said in evidence—

“We appreciate that the shooting industry contributes significantly to the Scottish economy, but that does not make it morally right – indeed we say it has no place in a modern, civilised society.”43

201. Similar views were expressed by the League Against Cruel Sports—

“The League must stress that while it is our policy not to support the shooting of live targets for sport, we do not dispute that shooting is indeed a generator of income and employment.”44

202. The Committee recognises that there is an inherent tension, which crops up throughout this Bill, in the area of game management and law and the issue of conservation in its widest sense. On one hand, there are many land owners and managers who manage game as a valuable sporting commodity, and on the other, there are many who view the priority as being the welfare and protection of a variety of species and the habitats concerned. It is a difference of purpose and motivation. In bringing forward the Bill, the Scottish Government seeks to recognise different objectives by establishing legislation that acknowledges the contribution, economically, culturally and environmentally, that the game and field sports industry makes, but also seeks to ensure that land management practices are appropriately managed, regulated and fit for the 21st century, and to give suitable consideration to animal welfare issues.

203. The Committee recognises that shooting for sport, provided it is conducted in an environmentally responsible manner, is an important aspect, both economically and culturally, of Scottish life. The legal and policy framework encompassing the shooting industry must however continue to adapt to reflect evolving societal attitudes to field sports and shooting in particular. The Committee welcomes the Bill as a process in that evolution.

Game law and the classification of certain birds

204. The GWCT, SGA and Scottish Countryside Alliance (SCA) voiced concerns about the re-classification of game birds in the Bill, despite the Scottish Government’s position that it is for tidying-up and modernisation purposes only, and does not make any fundamental change to the legal position of game birds and shooting for sport.

205. Whilst accepting that the Bill does not, in itself, make any direct changes to the status of game birds, some witnesses expressed concern that the Bill created the possibility of significant changes being made by future administrations, via secondary legislation. Some organisations were concerned that this could be the start of a reduction in the powers and control currently enjoyed by landowners and managers of sporting estates and could even lead, if a future administration so desired, to a ban on shooting game for sport.

206. The Scottish Rural Property and Business Association (SRPBA) said in written evidence—

“The Bill ensures that game birds effectively enjoy the same position in law as previously, which is welcomed. Whilst undoubtedly simpler, this regime does enable future changes to the game and quarry species listed in the relevant schedule without the benefit of full parliamentary scrutiny, thus posing a potential threat to the game management sector in Scotland if the lists were to be altered arbitrarily without proper consideration of the full consequences.”45

207. The GWCT was particularly disappointed by this part of the Bill, suggesting it did a fundamental disservice to the game industry in Scotland—

“By merging game birds with other hunted species where lower intensity management is the norm (most ducks, wading birds including woodcock and others) this Bill risks reducing the incentive to invest in two ways. First by reducing control over their management by those investing in them and secondly by making the species vulnerable to secondary legislative change which does not reflect the long-term nature of the investment. Such loss of investment would lead to a loss of social, economic and biodiversity dividends for Scotland […].”46

208. The Subordinate Legislation Committee made no comment on the possible effect of the delegated powers in the Bill in this regard.

209. The British Association for Shooting and Conservation (BASC) noted that the requirement of a license to deal in venison remained, and suggested that this was an unnecessary anomaly in the legislation, which should be abolished.

210. The Minister informed the Committee that she had taken advice from the DCS (now SNH) on this and, based on that advice, the requirement of a licence to deal in venison had been retained because of continued instances of deer poaching.

211. There was consensual support in evidence for the modernisation of game law and the abolition of game licenses. The Committee is content with these provisions.

212. The Committee notes the concerns raised in some submissions about the change in status of game birds, but is reassured that the provisions in the Bill do not alter, in any significant way, the legislation surrounding the release or management of game birds in Scotland.

213. The Committee also notes, however, that a future administration in Scotland could, by negative procedure, amend the legislation to remove a game species from the list of birds which may be killed or taken outwith the close seasons. As this would be a radical change, the Committee recommends that any proposal to remove the game species from Schedule 2 of the 1981 Act, be subject to affirmative, rather than negative, procedure.

214. The new provisions place game birds on the same footing as quarry species (other wild birds killed for sport not formally classed as game, such as ducks, geese and waders), i.e. as birds which may be taken or killed out of specified close seasons.

215. Colin Shedden, the Director of BASC in Scotland, was of the view that this afforded sufficient flexibility to the hunting of quarry species—

“I think that there is a logic to putting all the quarry species, as it were, together. We need to recognise that things can change. For example, we have lost some quarry species in the past—the last one was the capercaillie, because of its population decline. I think that the flexibility could be useful if other species become much more abundant in Scotland and become legitimate quarry for game-shooting interests.”47

216. The RSPB raised some concerns about the list of quarry species that remains in the Bill—

“The quarry list includes many wildfowl and waders as well as the game birds that are being moved into the quarry list in the Wildlife and Countryside Act 1981. Many of those species have a less than robust conservation status, but in the circumstances we do not think that removing them from the quarry list is the best way to address the issue.”48

217. Dr Paul Walton, head of habitats and species for RSPB Scotland, spoke further on this issue, citing an example of greylag geese on the Western Isles and Inner Hebrides. Serious agricultural damage was reported as occurring as a result of the resident breeding geese, which may require future management to limit the damage occurring. However, he suggested that any such programme would require a basis of scientific support not currently available, and went on to conclude—

“At the moment, the gathering of bag statistics in this country is generally poor in comparison with other countries. We do not know for sure how many birds are shot for sport by estates. We know some other pieces of information on mortality—for example, we have an idea of the number of birds that are shot under licence—but there is no robust mechanism for us to be absolutely confident in the mortality levels. If we are not confident of those levels, the science and, therefore, our whole adaptive management approach falls apart and it becomes more difficult for conservation bodies such as the RSPB to support it. We want to use the opportunity that the bill provides to set in train a process that will provide us with properly robust gathering of bag data.”49

218. SNH gave the Committee a slightly different picture of the state of record keeping, noting that although it did not routinely carry out such research themselves, it did carry out research on specific species that are of particular conservation concern, such as the Ptarmigan (a game bird in the grouse family). In addition, SNH noted that there were national game records, compiled by the GWCT and BASC, which were available on-line to enable people to draw their own conclusions on the health of various game and quarry species.

219. The Committee notes the comments made by the RSPB that although it is not recommending removal of any species from the current list of quarry species, it would welcome better record-keeping and more robust statistics on bag catches to enable populations to be monitored more dynamically. The Committee also notes that no other suggestion has been made to it to remove birds from the lists contained in the Schedules to the 1981 Act as amended by the Bill.

220. However, the point made by the RSPB about the need for better record-keeping and monitoring of mortality rates of certain species on estates and bag counts, should be further considered by the Scottish Government. The Committee is under the impression that the vast majority of estates keep records of what is shot on their land, and that it should therefore be possible to make this information more widely available to inform scientific analysis of the health of a particular species. If there are concerns regarding commercial sensitivities, provision should be made to enable such evidence to be anonymised.

Goose management

221. The issue of goose management was brought up several times in evidence to the Committee even though the Bill makes no specific provision for the management of geese, although they would be covered by the general provisions on INNS, species management and amendments to the wild bird provisions of the 1981 Act.

222. The Committee notes that a review of the national goose policy framework is currently being carried out by the British Trust for Ornithology (BTO) Scotland and is due to report to the Scottish Government before the end of the year. The Government asked the BTO to assess whether the existing policy remained appropriate or whether there were other management options or policy mechanisms that might now be more appropriate for addressing the interactions between geese, biodiversity and agriculture.

223. The Committee is aware that the management of significant numbers of geese is a matter of some urgency to certain communities in Scotland, and that ways of tackling the problems often need to be specific to local situations.

224. The Committee looks forward to the results of the goose review. The Committee recommends that the Scottish Government give detailed consideration to any proposals or recommendations that emerge from the review, and assess whether any of them would be best taken forward as part of this Bill.

Poaching and close seasons

225. It was noted, in evidence to the Committee, that recorded instances of poaching were on the increase and that the traditional image of the ‘one for the pot’ poacher was, perhaps, out of date. Mike Flynn, chief superintendent of the Scottish Society for the Prevention of Cruelty to Animals (SSPCA) went into further detail on the latter point—

“[…] we have seen a marked increase in reports of poaching, although I have to say that it is probably not the traditional type of poaching that the bill is aimed at. For example, people on the outskirts of cities are causing tremendous suffering with the use of dogs, crossbows and air rifles.”50

226. This was supported by Robbie Douglas Miller, of the SRPBA, who told the Committee—

“Last year, we had instances of gangs of poachers using semi-automatic weapons on herds of deer […] The poachers would pull up at the side of the road and, from the side of a van, fire 40 or 50 rounds into a herd of deer perhaps 80m to 100m away. The poachers would then go and hack off the pieces that they wanted and could take in a short period of time, but they would leave everything else—including deer that were wounded, wandering around waiting to die. That is a real issue.”51

227. Broad support for the modernisation of poaching offences was expressed in evidence to the Committee. For example, Dr Colin Shedden, from BASC, told the Committee that—

“[…] the issue is important and has been well addressed in the bill. For example, we have lost—or, I hope, will lose—a lot of very archaic legislation that is in very archaic language. With the definition of poaching as the illegal removal of game or other wildlife species from land without permission, the whole thing has been very much simplified.”52

228. The Committee supports the rationalisation of poaching offences in the Bill to create a single poaching offence.

Powers to apprehend suspected poachers

229. The Committee received evidence expressing concern at the removal of the current power landowners and their employees hold to apprehend suspected poachers. This reflected the opposition to this proposal in responses to the Scottish Government’s consultation. The SRPBA and SEBG were concerned about whether the police had sufficient resources to provide an effective and timely response to instances of poaching.

230. Robbie Douglas Miller, of the SRPBA, told the Committee—

“The problem for those of us on the ground is what to do with people we have detained, especially if there are more of them than there are of us. What do you do with someone in the middle of the night? Ringing the police might be fine, but […] when there is a direct confrontation, what should we do? Should we walk away? They know who we are, so if we walk away, they know that it is free reign and they can just come back tomorrow. It is a difficult problem.”53

231. The SGA brought to the Committee’s attention, in its written evidence, a potential inconsistency in removing landowners’ powers of apprehension whilst powers belonging to water bailiffs are retained. Water bailiffs perform a similar role on fresh water to that performed by gamekeepers on land, and have powers of arrest with regard to suspected poachers.

232. A Scottish Government official told the Committee—

“[…] the main underlying reason for the different approach is that a different regime applies to freshwater fisheries. There is a statutory role for salmon fisheries boards, and the bailiffs have a role in that regard. The structure is different from that of most game businesses, which are run by private-sector landlords and are a matter of private property.”54

233. The Scottish Government commented in the Policy Memorandum on the removal of landowners’ rights to apprehend suspected poachers, stating that significant opposition had been expressed towards the proposal but concluded that it “was not persuaded by any evidence to justify retention of these powers.”55 Such significant opposition was not expressed to the Committee during its scrutiny of the Bill.

234. Alex Hogg, Chairman of the SGA, whose members may be most directly involved in the apprehension of suspected poachers, said that—

“The loss of the power will not really affect us. Another issue is that we have shotgun and firearms certificates and we do not want to apprehend those guys face on sometimes, because we can end up landing in trouble because of the firearms. It is better if we watch the guys and the police come and deal with them.”56

235. The Committee addresses the wider issue of enforcement of wildlife crime offences, and available appropriate resources, later in this report. However, the Committee is of the view that the removal of the current power which landowners and their employees have to apprehend suspected poachers is not the real issue. The issue is whether there are appropriate resources within the police forces across Scotland to respond appropriately and timeously to reported incidents of wildlife crime.

Shooting on Sunday and Christmas Day

236. The Scottish Association of Country Sports (SACS) raised the issue of the current ban on shooting certain birds on Sundays and Christmas Day—

“The original reasons for making shooting for sport on Sundays and Christmas Day unlawful were simply to assist in the detection of poachers – the ‘working classes’ only had Sunday free from work, whereas the landowners could shoot any day they chose. The justification used was for religious observance. Today, the working practices are entirely different, as are the measures and methods used to prevent rural crimes such as poaching. That said, today most of the population would consider Saturday and Sunday to be its main leisure time, and is thereby hugely disadvantaged by any restrictions on Sunday shooting, since that equates to 50% of its available leisure time.”57

237. The Committee notes that the Bill does not prohibit the killing or taking of game birds on Sundays or Christmas Day, but rather of other quarry species (geese, ducks, rails (other water birds) and wading birds). The Committee understands that not shooting game for sport on Sundays and Christmas Day is a matter of cultural convention.

238. The Committee notes that there is, therefore, an anomaly in legislation, which allows shooting of certain species on Sundays and Christmas Day, but not others. The Committee recommends that the Scottish Government takes the opportunity to addresses this anomaly during the passage of this Bill.

Catching-up

239. All those who commented on the catching-up provisions in the Bill thought that the fourteen days timescale was too short and argued for varying lengths of extension to the allowable catching-up period, from a month up to 42 days. There was consensus amongst these organisations58 that the 14 days did not give sufficient flexibility to deal with the vagaries of the weather. The SGA explained—

“[…] we do not feel that the current proposal of a 14 day period is practical. The relevant shooting seasons close after 1st February, and Gamekeepers will then generally allow a period of time for birds to settle without disturbance. If the weather is open in early February, it would be difficult for Keepers to achieve their objectives, as birds may be widely dispersed. Hard weather helps to concentrate birds within key areas.”59

240. The GWCT also said it would like black grouse to be included in catch-up provisions, noting that—

“The loss of this facility could prove to be a disincentive for future investment in game management for this species. Such an interest is an important as suggested by the current performance of black game populations in north-east Scotland where red grouse management is protecting and enhancing their population performance.”60

241. The Minister told the Committee—

“The practice of catching up is currently illegal, and our advice is that the current position is unworkable. We are therefore using the bill as an opportunity to provide two weeks for catching up. The provision is based on the fact that the existing provision is not manageable […] We are starting from the position of zero so, from our perspective, the bill gives another two weeks and that ought to be sufficient.”61

242. The Committee considers catching-up to be of value to those managing game birds. The Committee notes the apparent uncertainty over the lawfulness of catching-up and welcomes the clarification provided in the Bill that it is legal to do so. However, the Committee notes the evidence from landowners and managers who consider the 14 day period for catching-up certain game birds in close season is not sufficient.

243. The Committee asks the Scottish Government what welfare, environmental or economic reasons there are for setting the catching-up period at 14 days? If there are no such particular reasons, the Committee would be minded to recommend that the Scottish Government amends the Bill at Stage 2 to extend the period for catching-up.

244. The Committee notes the comment made by the Game and Wildlife Conservation Trust proposing the inclusion of black grouse in the catching-up provisions but does not have sufficient information regarding the possible consequences of such a change to make any recommendation. The Committee therefore draws this to the attention of the Scottish Government for further consideration.

Hares

245. Under the Hares Preservation Act 1892, it is currently illegal in Scotland to sell or expose for sale, hares or leverets between 1 March and 31 July inclusive. In Scotland, Section 1(3) of the Ground Game Act 1880 has been modified by the Agriculture (Scotland) Act 1948 as follows—

“The occupier of the land or persons authorised by him may kill ground game, throughout the year, on moorlands and unenclosed lands (not being arable) by all legal means other than by shooting, and by means of firearms over the period from 1 July to 31 March inclusive.”62

246. Currently ground game (rabbits and hares) can be killed in Scotland all year round on land that is not classed as moorland or unenclosed land.

247. The Bill proposes the establishment of separate close seasons for brown hares (1 February – 30 September) and mountain hares (1 March – 31 July) and makes it an offence to take or kill hares during such times. The rationale given by the Scottish Government for introducing a close season for hares is to protect hares at time when there is likely to be the greatest welfare concern, i.e. when hares are lactating and have dependant young.

248. Most evidence to the Committee was supportive of the introduction of a close season for hares, but some argued that the dates proposed in the Bill were not the most appropriate, particularly for brown hares. Many63 agreed that the close season for brown hares should start at least a month later, on 1 March, to more accurately reflect breeding seasons and to tackle problems caused by poor weather. Some also felt that the mountain hare season should also be delayed a by a month, to 1 April, although there was less consensus on this issue, with others satisfied with the 1 March proposal.

249. SNH told the Committee that the close season dates in the Bill were based on scientific advice concerning pregnancy rates. The brown hare has a 47% pregnancy rate in February and 44% in March, and the mountain hare was comparable. SNH was concerned that any shortening of the close season could create an animal welfare issue with regard to leverets. It also noted that statistics suggest that only 10% of hares shot for land management are currently shot between March and August, and only 2% of informal shooting takes place between those months, which suggests that the close season dates, as established in the Bill, would not have the significant impact on management methods and availability which some of the written evidence to the Committee would suggest.

250. The Hare Preservation Trust (HPT) took a different view on the killing or taking of hares at any time (supported by the SWT), citing evidence of cruelty due to the difficulties in cleanly shooting a hare, and concluded in its written evidence—

“It is therefore our view that hare shooting should be kept to a minimum and allowed under licence solely upon proof of serious economic damage to crops or forestry. Furthermore, licences should only be issued during the main breeding period of February to September inclusive if a cull has been carried out during the previous October to January but has not been effective. We estimate that at least 37,000 orphaned leverets die of starvation annually in Britain because there is no close season to protect nursing females. However, since Defra claim that farmers need the flexibility to cull hares throughout the year we have been willing to accommodate that in our licensing provisions, but with tightly drawn conditions. We make no accommodation for hare shooting for so-called “sport”.”64

251. The HPT also noted that the mountain hare was listed as a species of community interest in the EC Habitats Directive 199265, and, as such, was protected from certain methods of capture, such as snaring and night shooting. The HPT believed that there was not currently proper adherence to these measures and that the Habitats Directive was regularly being broken in Scotland.

252. The SGA told the Committee that the most productive habitat for hares was found mostly on managed sporting estates. This was because hares were prone to fox predation and therefore had a greater survival rate on ground that was managed to keep down fox numbers.

253. There was some contradictory evidence received about the health of the brown and mountain hare, with the HPT stating that the brown hare population was in decline and the mountain hare population under significant threat, while others, such as the GWCT, suggesting that both brown and mountain hare populations were currently on the increase in Scotland.

254. SNH’s view was that the GWCT was the most authoritative source for information on hare numbers, via its national game bag census, which is an index. That has shown that mountain hare is showing no long term changes, with the ten year trend showing a non-significant decline. The brown hare trend is less clear, but both the 10 and 25-year trend indicate no significant decline, and the population is felt to be static. SNH believed this demonstrated there was no case, based on conservation alone, for a ban on shooting either brown or mountain hare. SNH also pointed to 2008 research66 carried out by SNH, the Macaulay Land Use Research Institute (MLURI) and the GWCT, which showed no significant change in the distribution of mountain hare.

255. The GWCT outlined why it believed that management of mountain hares was necessary, beyond shooting for sport—

“Where the tick-borne louping-ill virus is present GWCT research shows that moor mountain hares can help perpetuate the disease, impacting on grouse and sheep. As there is currently no alternative form of treatment, some hare populations have been temporarily and locally reduced to suppress the disease, protect the red grouse and thus ultimately save the heather moorland both hares and grouse depend upon. Similarly, some suppression of hare population densities may be necessary on some occasions to allow woodland regeneration.”67

256. Alex Hogg, of the SGA, also noted the tick problem, stating that cases of Lyme disease were on the increase and that hare and deer populations were being culled to try to tackle this. They noted a public health issue when giving evidence to the Committee on 7 September 2010—

“We have to try to find an answer to the tick that causes Lyme disease. The Scottish Parliament is encouraging people to access the countryside, but some areas of the country are absolutely ridden with ticks […] It is a serious problem.”68

257. SNH said it was aware of the problems that ticks carried by hares were having on some grouse and was concerned about reports of systemic culling of mountain hare on some estates as a result. SNH has commissioned research to measure the extent of local populations of mountain hares.

258. The Committee supports the introduction of a close season for both brown and mountain hares.

259. The Committee notes the evidence on whether the close season, for brown hares in particular, should be reduced by a month. The Committee is not clear on whether reducing the close season by such a time would have any significant negative welfare impact on live young and therefore asks the Scottish Government to reconsider the close season dates to ensure that they take account of the welfare of live young specifically.

260. The Committee appreciates that it is sometimes necessary to manage hare populations. In particular the Committee notes evidence that the tick-borne louping-ill virus can be carried by hares, which might present a potential problem in terms of transfer of tick to sheep and grouse, and also a possible threat to public health, in terms of Lyme disease.

261. However local population levels should be carefully monitored. The Committee notes the research being carried out by SNH to assess the extent of local populations of mountain hares and recommends that the Scottish Government give this full consideration when it is published.

262. The issue of falcons being flown to take rabbits was raised by several witnesses. Their concern was that it was inevitable that some hares would be taken by falcons in the hare close season and that this would therefore place falconers in danger of prosecution. An amendment to the Bill was called for, to acknowledge this issue, and protect those flying falcons for such purposes during the hare close season from what, it is argued, would not be an offence committed by intent.

263. The Scottish Hawk Board outlined the concern—

“[…] the use of hawks and eagles to hunt rabbits for control purposes will be impacted by the imposition of a close season for hare. Although rabbit control with birds of prey is mainly carried out through the normal hunting seasons, some areas of rabbits warrant culling throughout the summer period […] Once a bird of prey is flying free there is no possibility to stop it taking a hare that may flush, by default the falconer will be guilty of an offence if his bird takes a hare. To impose a close season when a hawk or eagle is unable to distinguish between a rabbit or hare is going to place the falconer in an untenable position. To prevent unwarranted law transgressions an exemption clause should be added […]”69

264. The Committee asks the Scottish Government to note the concerns raised by falconers that the Bill may penalise them for inadvertently allowing a falcon to take a hare, rather a rabbit, during the close seasons.

Enforcement of wildlife crime

Background

265. PAW Scotland defined wildlife crime as “any unlawful act or omission, which affects any wild creature, plant or habitat, in Scotland” at its plenary meeting70 held on 25 May 2010

266. PAW was established to unify efforts to combat wildlife crime in the UK. PAW Scotland is the Scottish arm of PAW and the delivery mechanism for Scottish Government action on wildlife crime. PAW Scotland currently has 33 members, including: the eight police forces in Scotland; the Scottish Government; SNH; rural industry bodies and environmental organisations. PAW Scotland produced a Scottish Wildlife Crime Reduction Strategy71 in 2008. This short strategy document describes the problem of wildlife crime, and why it should be tackled – in essence, it says, because wildlife and the natural environment are vital to Scotland’s economy and identity. PAW Scotland intends to review the strategy in 2011.

267. The principal statute protecting wildlife is the 1981 Act. Wild animals, plants, birds and their habitats are protected under international and European as well as domestic law, and some species of mammal and bird, such as deer, game birds, and badgers are also protected under separate statutes. Animal welfare law also protects wild animals from cruel treatment, and requires their welfare to be ensured when they come under the control of man.

268. The number of wildlife crimes recorded by police forces in Scotland in the ten years between 1999-00 and 2008-09 ranged between a low of 139 in 2002-03 and a high of 384 in 2008-09 and the Minister noted that—

“[…] we have been through what is likely to be a very bad year for bird poisonings, which has featured some high-profile cases at well-known estates in the Highlands.”72

Single witness evidence

269. The 1981 Act contains provision for the stealing of birds’ eggs to be prosecuted on the basis of evidence by a single witness. Poaching offences, under the Acts being abolished by this Bill, also contain provisions for prosecution on the basis of evidence from a single witness. The Bill amends the 1981 Act, in Section 12, to include provision for the prosecution of the new poaching offence on the basis of evidence from a single witness.

270. A Scottish Government official told the Committee on 23 June 2010, that the rationale for this was simply to maintain the current position—

“[..] the policy objective was not to disturb the current situation and […] poaching offence require only single witness evidence […] at this stage we did not want to change the policy or the way in which that was done; it was more a matter of simplification and of bringing everything under a single regime. That is why we have ended up with the current situation of retaining single witness evidence for poaching.”73

271. The Bill’s retention of single witness evidence for poaching was supported in some evidence, both to the Committee and the Government’s consultation, as poaching was felt to be a ‘caught in the act’ style of crime often committed in rural areas where the likelihood of a corroborating witness was low.

272. Mike Flynn, of the SSPCA, said it was essential that single witness evidence was retained for poaching, explaining that—

“There is a place for it. It originally applied to the stealing of birds' eggs, given the remote nature of the places where that happens. That is a problem whether we are talking about taking birds' eggs or poaching; it is not happening at the end of the street in front of 20 witnesses. As Alex Hogg [Chairman of the SGA] said, in the majority of cases the evidence has to be corroborated anyway, but Alex could say that he saw somebody poaching and that he found the carcase of the animal that was killed—that is a form of corroboration. There can be evidence that a dog attacked an animal, for example. There can be corroboration that does not come from another person, so the single witness approach is valuable.”74

273. Indeed, some organisations, such as the SSPCA and SWT, wanted the extension of the admissibility of single witness evidence for other wildlife crimes. The SWT explained the rationale behind this a little further—

“We further note that single witness evidence is sufficient for littering offences under the Environmental Protection Act 1990 and dog fouling offences under the Dog Fouling (Scotland) Act 2003. We see no convincing argument why single witness evidence should not be sufficient for general wildlife crime prosecutions. This would simplify enforcement and send a very powerful message to criminals.”75

274. However, another side of the debate emerged in evidence, with several organisations calling for the admissibility of single witness evidence to be scrapped altogether for any wildlife crime offence. BASC, SGA, and the SCA all said it served little purpose because offences always required corroboration to result in prosecution. The Law Society of Scotland felt that consistency was required, whichever direction the argument took76, a position also taken by Professor Reid who asked for ‘harmonisation’.77

275. In evidence given on 29 September 2010, Ron Macdonald, head of policy and advice at SNH, made it clear that he did not think the answer to the anomaly was to extend the use of single witness evidence to other wildlife crimes, as corroboration was essential in Scots law—

“The provision is an anomaly and should not be extended. Corroboration is a basic tenet of Scots law. We see no need to extend the provision. Sheriff Drummond said that, even with single witness evidence, he would require separate corroboration. I hope that that clarifies our position. We are not saying that the provision should be extended; it is an oddity and we see no benefit in extending it to other crimes.”78

276. Malcolm Strang Steel, of the SRPBA, also said that the evidence seemed to suggest that single witness evidence was not effective, and questioned whether it was wise to continue to pursue it—

“Scots law has always said that uncorroborated evidence is a bad principle. Single witness evidence is an exception because it is a hangover from 150-plus years ago. I do not think that we would be desperately upset if it disappeared. However, we would be desperately upset if it came in through the back door in relation to anything else. Corroboration is an extremely important principle and should be maintained, unless there is a very strong reason otherwise, and I cannot think of one within the context of what we are talking about at the moment.”79

277. Sheriff Drummond told the Committee that, in 35 years of professional experience, he had never known of any person being convicted based on single witness evidence alone—

“Let us think of the situation of a prosecutor who receives a report of a case that will be contested. In effect, one person is saying, "Here is the evidence that points to guilt" and somebody else is saying, "That is not what happened." The prosecution of the case may be weakened by the law saying that it can proceed on single witness evidence. I think that I have never in my entire professional career dealt with a case in which the only evidence was single witness.”80

278. Several witnesses raised the possibility of wildlife cases being prosecuted on the basis of the evidence of a single witness, but with other supporting evidence, such as a poisoned carcase. Sheriff Drummond stressed that single witness evidence with other supporting evidence, was not single witness evidence at all, it was corroboration. Single witness evidence would be one person saying they saw another person doing something, and a prosecution being possible as a result of that alone.

279. Sheriff Drummond noted that extending the number of offences in which single witness evidence was admissible could lead to more cases being brought forward with a view to prosecution, but those cases not actually being prosecuted in the courts due to a lack of corroboration. He emphasised that the focus should be on the collection of robust evidence.

280. In terms of admissibility of evidence, the RSPB raised the importance, within current law, of how evidence was discovered and gathered. For example, a person who discovered a poisoned carcase would be questioned on how they came to be on the relevant piece of land, to ensure they had a legal right to be there. If the person were a hill walker who happened to find the carcase, it is likely that person’s evidence would be admissible, as the person would have been exercising their access rights under the Land Reform (Scotland) Act 2003.81 However, if the person worked for an organisation and had been sent to look for evidence, it could be deemed that they were not there legally.

281. The Minister told the Committee that, having noted the debate with interest, she was not persuaded by either the argument to abolish single witness evidence, or extend it further to cover other wildlife crimes, and was therefore content with the status-quo position in the Bill.82

282. The Committee notes the extensive evidence it received on the issue of single witness evidence. It is clear to the Committee that the Scottish Government’s reason for retaining single witness evidence for poaching was to maintain the status quo.

283. The Committee appreciates the rationale for being able to convict certain wildlife crimes on the basis of single witness evidence, because of how and where these types of crimes are likely to happen. The Committee notes the evidence which called for single witness evidence to be extended to other wildlife crimes.

284. On the other hand, the Committee notes the evidence it heard that it is extremely rare that any alleged offence of poaching or egg stealing to be prosecuted on the evidence of a single witness, and that there is therefore little to be gained by extending the use of single witness evidence for other wildlife crimes.

285. The Committee was not clear, despite extensive evidence taking, on how single witness evidence could practically be applied, and whether in practice corroborative evidence is always required and, if so, what such evidence would amount to.

286. A majority of members agree that the law on single witness evidence should be made consistent on the basis that the same distinctive evidential considerations that apply for poaching offences also apply for many other wildlife crime offences, e.g. raptor poisoning.83 Some members consider that single witness evidence should be admissible for other wildlife crimes, such as raptor poisoning, whilst other members consider that single witness evidence should be inadmissible in all poaching or wildlife crime cases.

Investigation of suspected crimes

287. There were conflicting views about whether instances of wildlife crime were increasing, or whether statistics showing increased numbers were a result of the public being better informed and more cases being reported. It was also suggested that as there were now dedicated wildlife crime procurators fiscal, more cases were being brought and prosecuted. However, there was consensus in evidence condemning wildlife crime and emphasising the need for robust enforcement.

288. The Committee heard extensive evidence concerning the enforcement of wildlife crimes, which included the ability of the police, in terms of resources, to respond to suspected crimes effectively, the priority that police forces across Scotland gave to investigating wildlife crimes, and the support that currently existed, and could exist in the future, in terms of supporting the police in its role.

289. Libby Anderson, a policy director with Advocates for Animals (now called OneKind), told the Committee that the timely response of the police to reported suspected crimes was currently a problem—

“The experience of many people who come across what they think are offences in the countryside is that the police do not come and address the problem. Evidence needs to be looked at quickly, because it can disappear. Before we even think about the admissibility of evidence, enforcement is a serious issue.”84

290. She went on to give a specific example of this—

“[…] in a recent case, [our field research officer] thought that he had found some illegal snares and he informed the police about them, but they were unable to attend. The incident took place in Strathclyde, but he was advised to go to his local police station in Gayfield Square in Edinburgh and give a statement, which would be passed back to Strathclyde Police. That is not really taking forward the issues of enforcement and investigation.”85

291. Grampian Police was extolled to the Committee as a model for policing wildlife crime, and one which should be replicated as best practice across the country. The RSPB indicated that lessons to be learnt from the successes in Grampian included numbers of officers and resourcing—

“Although we in the RSPB would always ask for more, we would not say that huge amounts of police resource should be applied to wildlife crime. We are asking for a proportionate model to be put in place, which is really what happens in the Grampian model […] They understand the issues that the committee has heard about, such as the economic benefits and so on of tackling wildlife crime. They read research papers that demonstrate that in some areas there are absences of various species, and they apply some resource to doing something about that. That is really successful. It is not about creating a massive force of police wildlife crime officers.”86

292. Mark Rafferty, from the SSPCA, told the Committee that the Grampian model was “the exception to the rule”87 in wildlife crime policing across Scotland, and suggested other parts of the country were quite a way behind—

“Certain police forces—I will not name and shame—do not have any commitment to wildlife crime. That poses problems when people report a crime, the SSPCA goes to assist the police and no police officers are available, let alone wildlife crime officers. The reality is that there is too little enforcement and that the police afford too few resources to tackling wildlife crime because it is too low a priority. There will always be a reason why the police cannot go. As a former police officer, I can accept those reasons. There are other angles that need to be investigated.”88

293. The Minister told the Committee that, whilst there had been a general improvement, some police forces were still better than others in tackling wildlife crime, and added that the issue of available police resources was “a challenge”.89

294. Mike Flynn, of the SSPCA went on to argue for the Bill to provide an extension to the current powers of SSPCA inspectors to investigate animal welfare issues, if the animal is in captivity—

“It is proposed that the SSPCA should be given additional powers—primarily, those that are contained in section 19 of the Wildlife and Countryside Act 1981—which would allow authorised inspectors to go on to land to recover evidence. Once they had recovered that evidence, the investigation could start. Sadly […] we come across incidents where an eagle might lie on a hillside for a week or two. By the time the police can resource the recovery of that piece of evidence, it is no longer there, which means that an investigation cannot take place and there is no detection or prosecution.”90

295. Currently the SSPCA can investigate if a live animal is involved, but if, for example, its inspectors found snares they considered had been set illegally they have no powers to act and have to notify and wait for police assistance. The SSPCA argued that this would provide very useful support to police forces, at a time of difficult budgetary constraints, helping to ease the burden on the police, and would lead to the detection of more wildlife crimes, and a reduction in the number of crimes committed. This call was supported in a supplementary written submission made by OneKind.

296. This view was not shared by Sheriff Drummond, as he believed that the area of powers of investigation had become so fragmented that it had directly led to the failure to prosecute certain cases, as investigations had been carried out by persons who had no authority to do so. He went on to add that this opened up other significant areas of concern, as there is now provision for organisational inspectors, local authority inspectors and police officers, and of the step towards giving other, non-police, inspectors wider powers. He urged both caution and consideration of context—

“[…] that step should not be taken without careful consideration of much wider principles in relation to crime enforcement. We should remember that we are talking about crime in the context of the presumption of innocence and proof beyond reasonable doubt, and of the rules on the admissibility of evidence in court. The committee touched on the question of single witness evidence and corroboration in the evidence session earlier today. We must not forget that we are operating in the context of criminal law—it is dangerous to fiddle with some of its elements in isolation.”91

297. Sheriff Drummond also stressed that the police was an arm of the state, whereas organisations such as the SSPCA and RSPB were charities and private bodies established for very specific purposes. There were therefore questions of accountability and impartiality.

298. Bob Elliot, head of investigations at RSPB Scotland, spoke about the power to recover evidence and the SSPCA’s proposal that its powers of investigation and arrest be extended—

“I have spent far, far too many hours standing on a hillside in Grampian next to a dead golden eagle, waiting for a police officer to respond […] Of course the collection of evidence has to be done properly and fairly, which is why I want the police to be able to respond. The SSPCA's idea is an absolute no-brainer. The SSPCA has trained, uniformed officers who have been doing the job for I do not know how many years and who have successfully investigated and prosecuted people not just for wildlife crime but for all sorts of offences. It is funny that the police do not seem to mind the SSPCA dealing with lots of issues involving domestic animals […] I think that it was the police who decided that the SSPCA and the RSPCA should do that, because they could not cope with all the incidents that involved cats, dogs and farm animals. We are at a point in Scotland at which the same can be said for some police forces in relation to wildlife crime.”92

299. The Minister told the Committee she was open to giving further consideration to the suggestion put forward by the SSPCA but added that it may not be appropriate to consider it as part of the Bill. The Minister said that such an extension of powers would be a significant step, and therefore would require full and appropriate consultation, which should not be limited by the timescale of the Bill. The consequences of such a change should be fully explored and given very careful thought.93

300. Another issue raised was that of recording wildlife crime offences. Constable David McKinnon confirmed that all eight Scottish police forces submit monthly returns to the national wildlife crime unit, which collates returns for the UK. However, he went on to add that whether incidents were properly recorded as crimes and therefore recognised in crime statistics was another matter.

301. Bob Elliot added—

“In numerous cases, I have been incredibly frustrated by speaking to senior police officers, who may not necessarily have expertise in wildlife crime, who do not see the data on their system. I have tried to explain about some criminality that has been going on for X number of years, but they have looked at me and said, "That's really interesting, but the system is telling me that there's been no such crime in my area." We have a long way to go to get wildlife crime offences properly recorded.”94

302. The SSPCA added that, as wildlife crime was not a current automatic recordable crime, this leads to some forces not giving it a high enough priority and not resourcing it sufficiently. The SSPCA suggested that elevating wildlife crime to a ‘group 5’ crime (i.e. recorded as part of the ‘other crimes’ section of the recorded crime statistics under the Scottish Crime Recording Standard), police forces would be judged upon their ability to detect and investigate it. Sheriff Drummond noted that there was no definition of what did, and did not, constitute a wildlife crime which made it hard for accurate statistics to be gathered.

303. The Minister noted that this issue had been discussed in the PAWS group, and that ACPOS had informed the group that wildlife crime was now being recorded across Scotland. However, given that there was not a definitive list of offences that constitute wildlife crime, the statistics produced may not be comparing like with like.

304. Given that police resources are undoubtedly going to be under significant pressure in the coming years, the Committee explored the issue of special constables being specifically recruited from rural communities. Constable Dave McKinnon said—

“[…] I would welcome greater participation by people who work in the rural community—stalkers, ghillies, keepers, bailiffs or whoever. We want to explore that through the Cairngorms National Park Authority. In my opinion, the pool of people who become special constables is far too narrow, and it should be widened to include anyone who has something to contribute and has an interest in their rural community.”95

305. The SRPBA notified the Committee, in supplementary written evidence, of a project it is currently involved with in conjunction with Central and Tayside Police—

“The SRPBA has been working with Central and Tayside Police to devise a workable model to deliver additional rural policing through use of volunteer police specials. These specials would be recruited from employees across rural Scotland, keepers, foresters, farm workers etc. This would be part of a recognised police project called Employer Supported Policing which is already established in other business sectors e.g. retail and finance in urban areas. Employers grant their employees paid time off to undertaking policing duties within their own community area/region. With an increase in all forms of rural crime and financial cut backs to come we think this project needs to be accelerated.”96

306. The Committee notes the evidence received that a significant problem in tackling wildlife crime is the lack of consistency by the police, across Scotland, in responding in a timely and appropriate fashion.

307. The Committee notes that the Partnership for Action Against Wildlife Crime Scotland has recently established a definition of ‘wildlife crime’. The Committee recommends that the Scottish Government ensures that this definition is used by all police forces in Scotland in order to ensure a consistency of approach in responding to reports of wildlife crime and properly recording such instances. The Committee also notes that a consolidation and rationalising of the law regarding wildlife crime may enable an even clearer definition to be established in future.

308. The Committee commends Grampian Police as an exemplar of investigating wildlife crime and recommends that the Scottish Government uses it as a best practice example that should be studied by other police forces in Scotland. The Committee accepts that if resources were deployed more effectively – for example more officers being designated as having responsibility for responding to wildlife incidents, – it would help in terms of proper recovery of evidence and lead to a reduction in wildlife crime.

309. The Committee97 is encouraged by the Minister’s comments that the Scottish Government was ‘open’ to giving further consideration to the request by the SSPCA that its powers be extended to allow them to investigate wildlife crimes, where a dead animal is involved. On the basis that this is likely to be the last piece of wildlife legislation considered for some time, the Committee recommends that the Scottish Government gives consideration to putting an enabling power in the Bill to allow for the possible extension of the SSPCA’s powers, subject to the outcome of a full consultation on the proposal and endorsement by Parliament.

310. Finally, the Committee notes efforts being made to encourage people in rural communities, whether they be gamekeepers, environmentalists, ghillies, farmers etc, to train as special constables to provide further support in the detection of wildlife crime. The Committee also notes that it may also be possible for SSPCA officers to train as special constables.

Raptor persecution

Background

311. A wildlife crime of great concern, and one which appeared to be uppermost in the minds of the public and professionals alike, was that of the persecution, especially poisoning, of protected birds of prey (raptors). There was consensus amongst all those who gave evidence to the Committee that the illegal killing of any raptor was unacceptable, and that the issue needed to be taken seriously.

312. However, the Bill does not actually contain any provision specifically relating to tackling the poisoning of raptors. This was raised with Scottish Government officials on 23 June 2010, when members asked whether consideration had been given, or would be given, to using the Bill to try to tackle this issue. An official told the Committee that—

“It has not been positively ruled out. There is an argument that we already have a strong legal framework for the protection of wild birds in the Wildlife and Countryside Act 1981 and now need more effective enforcement. The ministers are keeping the issue under review in light of the recent events on shooting estates in the north of Scotland. They wish to think about whether any further provisions would need to be introduced to the bill, but no firm decisions have been taken.”98

313. There was some agreement in evidence with the Government’s argument that the legal framework already in place was sufficiently strong, and that it was a question of effectively enforcing that, rather than improving the law. The SEBG agreed with this, adding that landowners could face having part of their single farm payment withdrawn if there were repeated cases of raptor poisoning on their land.”99

314. However, others, such as the SSPCA, OneKind, the League Against Cruel Sports and the RSPB, thought that law and enforcement is failing in this area and that wildlife crimes were not taken as seriously, across the whole country, as they should be. Many felt that the continued instances of raptor poisonings across Scotland were evidence to suggest that current measures to tackle the problem were not working.

315. A number of key questions emerged in evidence taking—

  • what is the extent of the problem;
  • what is the motivation behind it;
  • what problems exist with current attempts to investigate suspected crimes and enforce the law (this is primarily discussed above); and
  • what can be done to tackle the situation more effectively?

Extent of the problem

316. There was dispute amongst some giving evidence to the Committee as to whether the poisoning cases that have been confirmed are the “tip of an iceberg”, or whether they represent, more or less, the true extent of the problem.

317. A case was put by some that the known confirmed poisonings were a small percentage of a larger problem and suggested that the evidence of this was to be found in the population number of certain birds. The Committee heard, from several sources, that there was a current estimate that annually there are approximately 50 fewer golden eagles in Scotland than would be expected. The Committee also heard from the RSPB that the red kite population on the Black Isle was not developing at the same rate as that of a similar population in the Chilterns, despite generating an equal number of chicks.

318. Some witnesses concluded that this absence of population, even given natural mortality rates, was evidence of significant illegal killing of these birds. In responding to whether the confirmed cases of raptor poisoning were indicative of a wider problem, Ron Macdonald, of SNH, said that—

“In our published framework on golden eagles, we estimate that up to 50 golden eagles are missing in the black hole in north-east Scotland, which is probably the most productive area for golden eagles in the country. That area is much more productive than the west coast, which has a high population but does not have the richness of prey that the east coast has, largely because of grouse moors—they are a productive food source for golden eagles. We have done some work that shows the scale of the golden eagle problem.

In a population of 500 hen harriers UK-wide, only five breeding pairs were successful in 2008 on all moors throughout the UK. Given the rich food supply and the ideal and optimum breeding habitat, that indicates that we have a major problem on our hands.”100

319. However other groups, such as the SGA, cautioned against making a connection between absence of expected numbers of birds in certain areas, and illegal killing, without sufficient evidence—

“Whilst recognising that there were two poisoning cases in 2009, one of which is unrelated to game management, there is no other credible evidence to suggest that 50 Eagles vanish each year. If that were the case, then given the age at which they reach breeding maturity, the Scottish Golden Eagle population should have been facing extinction a long time ago. Neither are we aware of any research which maps actual unoccupied Eagle territories, but instead wonder whether these are theoretical projections.”101

320. This point was also stressed by Sheriff Drummond—

“Absence of evidence is not the same as evidence of absence, but those things tend to get conflated in the course of discussions such as ours. We assume that, because we are not finding stuff, it must be there. There might be many reasons—for example, the birds might have left—but the assumption is made, and that is where the resentments come in. When an investigation is carried out, nothing is found and it goes down as an investigation with no result. That is the kind of area in which damage is done on a public relations level between the investigator and the investigated.”102

321. The SGA also suggested that the raptor population in Scotland was thriving, especially when compared to populations in England, and that some species had risen every year since the 1960s.103

322. Alex Hogg of the SGA asked—

“[...] where are all the poisoned ravens, carrion crows and seagulls? If poison bait is laid on somebody's land, the first things to eat it are those species—the most common species—but their remains are never found. Also, if the golden eagle population is such that the least bit of interference could knock it off, why are we continuing to export golden eagles? We have exported 75 golden eagles to Northern Ireland and the Republic of Ireland, where most of them have been poisoned.”104

323. The Committee condemns as wholly unacceptable the illegal killing of raptors which continues across Scotland. The Committee recommends that the Scottish Government instructs police forces to investigate rigorously suspected cases of raptor persecution. The Committee also recommends that the Scottish Government likewise instructs the Crown Office and Procurator Fiscals office to prosecute wildlife crime vigorously.

324. The Committee concludes, from all evidence taken on this issue, that detection, investigation and prosecution of this crime is not resulting in a significant reduction in cases of raptor persecution, and that this should be addressed.

Possible motivation

325. In terms of the motivation for raptor poisoning, witnesses drew a direct link between sporting estates, and grouse moors in particular, and instances of poisoning. Both the SGA and the SRPBA acknowledged the issue and said that they were working very hard with members of their respective organisations to eliminate any instance of raptor poisoning on estates.

326. The RSPB drew a direct link between the game industry and certain wildlife crimes and voiced concern that the Bill was a step along the road of de-regulating the industry. They were not alone in seeing the Bill as an opportunity to strengthen the law on wildlife crimes, specifically regarding tackling the problem of poisoning birds of prey.

327. The Committee discussed a policy that it is alleged some estates were carrying out by managing solely for the benefit of a single species (creating a monoculture), and culling any other species which posed a risk or threat to it.

328. SNH commented on this on 29 September 2010—

“[…] we have grave concerns about the on-going persecution of birds of prey that is primarily associated with grouse moors. Although there has been on-going dialogue—the committee has visited Langholm moor—and we have made great strides in talking around the table and reaching a mutual understanding of what the key issues are, we are concerned that there has been no substantive progress in reducing the scale of the persecution of birds of prey. We have a continuing concern about that.”105

329. Dr Colin Shedden, of BASC, an organisation which includes members who shoot for sport, was not in favour of estates pursuing any single species agenda—

“I do not think that a pure monoculture of any individual species has any place in Scotland's landscape. My preference would be for a much more traditional approach that provided a surplus of grouse but also had deer, hare—which are important for eagles—and a wide variety of other species.”106

Improved detection and prosecution – vicarious liability

330. Alongside discussions about current resources and enforcement, the Committee explored with witnesses what changes could be made to the law to strengthen enforcement of wildlife crimes, and raptor poisoning offences in particular.

331. One issue that was explored was the concept of vicarious liability, i.e. making a third party liable for a crime, in order to attempt to capture employers who may be creating pressures on employees to carry out illegal activity.

332. A Scottish Government official told the Committee that vicarious liability was one area that was being considered to strengthen the law—

“Vicarious liability is one of the options that we would propose as part of any review of possible measures. That would be based on the report "Natural Justice: A Joint Thematic Inspection of the Arrangements in Scotland for Preventing, Investigating and Prosecuting Wildlife Crime" by Her Majesty's inspectorate of constabulary for Scotland, which recommended that the partnership for action against wildlife crime's legislation sub-group consider vicarious liability. That sub-group has done some initial work on it and continues to consider other options. Vicarious liability is definitely one of the measures of which ministers are aware, but I stress that no decisions have been taken on it as far as I am aware. It would be one of the measures that we would present to ministers if they asked us for options.”107

333. Sheriff Drummond urged caution in relation to vicarious liability for suspected raptor poisoning—

“There is a lot of loose talk about vicarious liability. One respondent to the committee refers to vicarious liability being used or introduced as a sanction in the bill. Vicarious liability is a textbook all on its own; it is not a simple concept or a magic bullet that we can just introduce. The whole subject area must be looked at in the context of criminal law, the presumption of innocence, the need for proof beyond reasonable doubt and the ordinary rules of evidence. That is sometimes lost sight of in discussion of the broader environmental aspects, if I can put it that way.”108

334. He went on to outline the challenges in trying to establish vicariously liability for criminal actions—

“We do not simply say, "And there shall be vicarious liability". That is meaningless. We need to spell out specifically what is meant and consider the issues that arise. What happens if the person who is the principal in the illegal activity is acting outwith the scope of his employment? What happens if he is acting in the face of specific prohibition? A gamekeeper who lays poisoned bait might have a contract of employment that says that he will not do anything like that under any circumstances. What do we do about that? […] What I am trying to say is that to wave the flag of vicarious liability is largely meaningless. If it had any meaning, the people who are seriously minded to get round it would simply make the gamekeeper self-employed. There are so many ways round it. Vicarious liability has been floated as some kind of answer. It is not an answer and, with respect, it is being floated by people who do not necessarily understand the concept that they are talking about.”109

335. However, Sheriff Drummond did consider that it might be possible to make employers liable for regulated substances being kept by members of staff. He also suggests that if someone were caught with an illegal pesticide, such as carbofuran, which is known to be used for poisoning birds, then the law could be established to presume that it was intended for use in poisoning, and the onus would be on the person to prove otherwise.

336. Sheriff Drummond also noted that art and part offences (the aiding or abetting in the perpetration of a crime, or being an accessory before or at the perpetration of the crime) contained in Scots law did not help, as they rarely lead to a third-party conviction, because the problem remained an evidential one.

337. However, Malcolm Strang Steel, of the SRPBA, considered that art and part offences did offer a de facto vicarious liability—

“[…] if an employer, factor or anyone else has been involved in a crime that their employee has committed, the person who is implicated is guilty of the crime art and part under existing law. That is not vicarious liability, but it is liability. If an individual employee goes off and commits a crime off his own bat, whether it is murder or the killing of a golden eagle, I do not see why an employer who had nothing whatever to do with the crime—and might condemn it, if he knew that it had happened—should be liable for the murder of the golden eagle any more than he is liable for the murder of the human being.”110

338. Constable David McKinnon told the Committee about the difficulties in linking evidence in suspected raptor poisoning cases to land managers—

“A stash of carbofuran was found, in a sizeable quantity—kilograms of it—and traces of carbofuran were found in a vehicle and in a bag in a shed. Some months later, a dead bird was found and sent to SASA [Science and Advice for Scottish Agriculture], which confirmed that the bird died from ingesting carbofuran. To me, the people managing that land were concerned with the use of an illegal pesticide. However, the problem was linking that to an individual.”111

339. The Minister announced to the Committee on 3 November 2010 that the Scottish Government intended to bring forward an amendment, should the Bill pass to Stage 2, to introduce a vicarious liability offence in relation to the poisoning of birds of prey. She added that a draft amendment had been developed with the Crown Office and was about 80% complete. The Minister stressed that the Scottish Government wanted to close any potential loopholes in the provision, such as people responsible being able to escape liability, and also an employer being liable in the event of mischief.

340. The Minister said that there was already precedent for such provision in Scots Law. This would be used as the basis for the proposed amendments.

341. The Committee welcomes the Scottish Government’s intention to bring forward an amendment at Stage 2 to introduce a vicarious liability offence in the Bill, which it considers to be a helpful step in the right direction. The Committee awaits further detail on this, which was not available before the conclusion of evidence-taking at Stage 1. The Committee recognises there could be significant challenges in securing convictions under such new provisions, but believes the strengthening of the law in this regard is a helpful addition to the range of provisions available for potential prosecution.112

342. The Committee notes that the majority of private landowners are appalled by raptor persecution. The Committee considers that such landowners should have nothing to fear from a vicarious liability provision.113

Improved detection and prosecution – licensing sporting estates

343. One question that the Committee considered at length was how to get a better purchase on those responsible for wildlife crimes such as the poisoning of raptors. Could an answer be found in licensing estates to operate as commercial sporting estates, so a deterrent becomes the threat of losing that licence?

344. SNH believed that there needed to be a debate about the possibility of licensing estates, but serious questions would need to be asked as a part of that. Was it proportional? What or who would be licensed? SNH did add that any such licence should be able to be “easy to get and easy to lose”114 and not overly bureaucratic. However, SNH added that this was not an issue to which it had given much practical thought.

345. Ron Macdonald, of SNH, confirmed he was pleased that the SRPBA was developing a wildlife estates initiative to provide guidance on sustainable land management on sporting estates, but was concerned it would lack powers of enforcement, which would be required for estates operating outside of the law—

“[…] we have been encouraged by the fact that the land management sector, particularly the SRPBA, is keen to develop a wildlife estates initiative, which considers grouse shooting and upland management according to sustainable land management principles. We have been supportive of that initiative, but it must have teeth. It must have some sort of code of practice and accreditation so that not only the good estates come in, but those that are still wanting. There must also be demonstrable improvements in respect of the number of deaths of birds of prey.

We are keen to give that a fair wind and to support it. It is always better to have a voluntary approach than to have a regulatory approach with licences. Because the WANE bill gives quite a short time window in which to develop a licensing system and we are not sure that that can be done, we tend to support the development of the voluntary code.”115

346. The Minister also welcomed the estate scheme and told the Committee that she would be helping the SRPBA to launch the initiative.

347. Dr Colin Shedden, of BASC, said he had both practical and principled concerns regarding the introduction of licensed shooting for sport—

“My major concern with such an approach, which appears on the face of it to be quite logical, is that it would be very difficult to define what a shoot is. As I said earlier, 4.4 million hectares of Scotland's land area is influenced by shoot management. That is about 67 per cent of the whole land area. It is an important driver. That ranges from a small duck-flight pond, which may be one or two acres, up to an estate of 10,000, 20,000 or 30,000 hectares. It will be difficult to define what a shoot is—that is the major stumbling block to that approach […] I find elements of the principle difficult as well, because individuals are currently licensed by the police according to their suitability to have a shotgun or firearms certificate. That is the approach that society has taken over the past 100 or so years—to license the individual rather than to license the nebulous concept of a shoot. It is difficult to make that approach jump from the individual, who is responsible for his own activities, to a much larger entity. A lot of innocent people could lose out because of the behaviour of one individual.”116

348. Malcolm Strang Steel, of the SRPBA, was also not in favour of estate licensing, saying that—

“As far as licensing is concerned, it would be hugely expensive and, as was mentioned earlier, there would be all sorts of practical difficulties. I really do not see that it is necessary. There are no particular advantages to it, and it would be bureaucratic and expensive for the Government.” 117

349. Patrick Stirling-Aird, of the Scottish Raptor Study Groups, was more open to an estate licensing system—

“Licensing could be an alternative or an add-on, but there would be a lot of sensitivity about that and, in a way, it brings me back to the moral point: it might help to tackle what I see as the moral falling down of some owners and managers of land. I presume that removal of the licence would come in only when there is a conviction, not on suspicion, which would be quite right. I understand that in the European Union, for example, Germany, the Netherlands and Spain have procedures that one could follow. There is a lot to be said for the idea.”118

350. The Minister noted that the Government had considered this option before agreeing to proceed with the introduction of a vicarious liability offence, but felt that such a measure would capture every estate, rather than only the small minority responsible for committing offences. As such, she did not consider it a proportionate response to the problem. She added that careful thought should be given to what message the introduction of such a licensing system would send out, and what it would say about individual freedoms. In conclusion, she considered that the SRPBA estate initiative should be given time to work before any further thought was given to the introduction of a statutory licensing scheme.

351. The Committee welcomes the principle of the estates initiative, a voluntary good governance scheme for private land managers currently being prepared by the SRPBA, and agrees with the Minister that the scheme should be supported and given an appropriate amount of time to become established. However, the Committee also notes that the scheme will be voluntary and will therefore lack the power to compel estates that do not wish to take part. The Committee would welcome clarification from the Minister on how she plans to support the initiative.

352. The Committee accepts that it would represent a challenge and a significant development of policy to introduce a fully worked up system for licensing sporting estates in the Bill at this stage. The Committee also notes that the issue would not have been subject to consultation and as a result introducing such a system would be inappropriate at this time. However, the Scottish Government may wish to consider the appropriateness of introducing an enabling power in to the Bill which would permit them to introduce a licensing scheme, only after full consultation with stakeholders and parliamentary scrutiny under the super-affirmative procedure. Should it take the power, the Scottish Government could consider formally adopting the estates initiative with appropriate modifications as a code of conduct applicable to all estates. However, any such power should only be used if the Scottish Ministers are not satisfied that the voluntary approach to good governance and any vicarious liability offence are working. 119

Improved detection and prosecution – other suggestions

353. Sheriff Drummond made a paper available to the Committee that he had prepared as a discussion paper for PAWS, which suggested decoupling the pesticides offences from the 1981 Act and creating a stand-alone offence.120

354. Sheriff Drummond explained the proposals further to the Committee in person—

“If somebody is found in possession of a regulated substance, the presumption, it is provided, is that he possesses it for the purpose of committing a criminal offence. If he is in lawful possession of whatever substance, we would expect to find it in his register and we would expect his employer to have countersigned the register. The employer would have acknowledged, "That is what my employee possesses. I know that he has it and I am happy with the reasons why he has it." […] that process would create traceability, responsibility and linkage to the employer, as it would create the knowledge in the employer's mind. If the gamekeeper or other person was thereafter caught in possession of a substance, the short questions would be, "Why was it not in your book? Why was it not in its appropriate container? Why was it not in appropriate storage?" The person's failure to do those things would give rise to the presumption that they possessed the substance for the purpose of setting poison or whatever. I suggest that that structure be examined and implemented.”121

355. The Minister told the Committee that creating such a stand-alone offence was not as easy as it might appear and that it might create more problems than it would solve. She added that there were wider issues in considering pesticide legislation, such as the trade in illegal pesticides.

356. The SRPBA and SEBG both argued for PAWS to be allowed to consider this issue in depth and were not in favour of rushing provisions through in this Bill.

357. Malcolm Strang Steel, of the SRPBA, spoke about the outcome of pursuing raptor poisoning without trying to resolve the conflicts leading to it—

“Much of the work that is being done, particularly that at Langholm, is quite new. We do not yet have the answers to many of the problems, but they will come out of that work. To jump in now with vicarious liability, licensing or even further penalties will only polarise the issue; it will not help bring everyone together and bring a solution to the table. I do not suggest for a moment that more cannot be done. The industry could still make significant improvements. Some form of self-licensing or self-regulation might be the way forward to try to assist with the problem. Everybody is hugely aware of the problem and striving extremely hard to provide a solution. At this time, Government interference—if I can put it that way—would not be helpful. In the long term, it would work out to be a much better solution if the various parties that are round the table were allowed to come up with a recommendation for Government to approve.”122

358. This was also stressed by the SGA, who cautioned the Committee against recommending any measures that it considered to be disproportionate—

“[…] we are concerned that an estate/land licensing system merely adds bureaucracy and cost without necessarily achieving biodiversity objectives. We believe that alongside existing policing and penalties, it is important to consider both incentive and preventative measures to support biodiversity, including more targeted use of local predator/raptor species control licensing.”123

359. The Committee notes Sheriff Drummond’s proposal to establish a presumption of guilty intent for anyone found in possession of a regulated substance. The Committee also notes his comments on whether an employer could be proven to have knowingly caused or permitted the possession of such a substance. The Committee considers that Sheriff Drummond’s proposals, and the introduction of a vicarious liability offence, are not mutually exclusive, and invites the Scottish Government to consider the proposal.

360. The Committee also notes the view that there is a further gap in the armoury of potential offences, that which seeks to catch those “concerned in” the use of illegal poisons for the purpose of raptor persecution or in other activity “concerned in” the offence of bird persecution. The Committee urges the Scottish Government to consider developing further offences which cover these points to further strengthen the grounds for potential prosecution.124

361. The Committee invites the Scottish Government to consider the merits of an announcing an amnesty on illegal substances such as carbofuran.

362. The Committee recommends that the Scottish Government reports to Parliament annually on the number of illegal raptor killings, detailing the number of cases brought and those which were successfully prosecuted.

Areas of Special Protection

Background

363. There are eight Areas of Special Protection (ASPs) in Scotland, which were designated between 1956 and 1974. Originally provided for in the Protection of Birds Act 1954 (and known as “bird sanctuaries”), they are currently designated under the 1981 Act.

364. ASPs were created to increase protection for birds beyond what was provided for in species protection legislation, and also giving Ministers the power to prevent the public from entering all, or part, of the area during specific periods.

What the Bill proposes

365. The Scottish Government has been advised by SNH that ASPs have become redundant as their purpose is now covered by other legislation, such as the amended 1981 Act and the Land Reform (Scotland) Act 2003. SNH is satisfied that there is no need for the eight ASPs to remain and that the orders can be abolished.

366. The Committee is also aware that the number of birds, and their conservation status, at some of the ASP sites has changed since the ASP was established, which again may suggest that the ASP, or bird sanctuary status as was, is no longer required in the same way. For example, the ASP at Loch Garten originally sought to protect a single pair of ospreys that were the first to return to Britain since the species had become extinct. Since then the species has established itself in a numbers of other sites across Scotland.

General comment

367. The Scottish Government’s consultation reported a 90% support for the proposal and this strong support was mirrored in responses to the Committee’s consultation.

368. The majority of evidence to the Committee on this issue was supportive of the proposal in the Bill, as the designation was no longer felt to be necessary.

Loch Garten issue

369. The exception to this was voiced by the RSPB and the umbrella body Scottish Environment LINK (of which the RSPB is a member), and related to the ASP at Loch Garten, which is managed by the RSPB. In its written evidence to the Committee, the RSPB said that—

“[…] we oppose abolition of ASPs as currently proposed under s.4 of this bill – until and unless measures are taken to deliver similar levels of protection at Loch Garten under the alternative legislation.”125

370. The Committee visited the Loch Garten site as part of its visit to the RSPB reserve at Abernethy on 21 September 2010 and discussed this issue further with RSPB representatives, representatives from SNH and the Cairngorms National Park Authority. The RSPB stated that the ASP ‘bird sanctuary’ status had been afforded to Loch Garten for over 50 years and provided reassurance to their staff in managing the site at Loch Garten, particularly in terms of enforcing access arrangements.

371. The RSPB’s concern was that, without its staff having powers to tell people that the site was an area of special protection, which brought clear legal restrictions on access and disturbance, there would be an increased possibility of damage to the site or disturbance of the birds.

372. The RSPB also argued that it was not calling for additional protection for the site, but rather a continuation of the current levels of protection.

373. SNH stated that it was not yet convinced of the RSPB case that the Loch Garten site required additional protection to that provided in various other statutes, such as the Land Reform (Scotland) Act 2003 and the Nature Conservation (Scotland) Act 2004. SNH noted that there had not been a single conviction under the powers afforded by the ASP and there was nothing to indicate that removing the ASP status would, in itself, present any future problems. However, SNH also stressed that dialogue was, and would continue to be, on-going with the RSPB.

374. Ron Macdonald, of SNH, added that the primary concern of the RSPB related to public access and that the legislation on access adequately covered such concerns. It was also an offence recklessly to disturb protected birds, which is what the RSPB wanted to avoid at Loch Garten. In conclusion, he added—

“The issue is modernising the law to make it much more in keeping with how most people in Scotland regard access to land. People are familiar with the Scottish outdoor access code and they know that free access is a basic right, provided that that access is responsible. All we are saying is that we should use that and the existing provisions. Criminal damage, such as vandalism or egg theft, can be addressed through the courts and through the police. They are dealt with already. We see no problem with the tools that we have in modern legislation. We do not need the ASP status.”126

375. The Minister updated the Committee on the progress in relation to this issue on 3 November 2010, and said that the RSPB had been invited to discuss this issue further at a meeting of the Cairngorms National Park Authority local access forum meeting. She very much hoped the RSPB would take up that invitation.

376. The Committee is broadly satisfied that the protections afforded by the ASP designation have been replicated in other legislation and that most ASPs can be abolished without the areas concerned suffering any reduction in the levels of protection afforded and without increasing threat to any wild birds.

377. The Committee notes the concerns raised by the RSPB with regard to the site at Loch Garten and also notes the comments made by SNH that, in its view, there is no threat to the site at Loch Garten by removing the ASP status, and that powers contained in other legislation would provide equitable levels of protection.

378. However, the Committee retains a concern that the levels of protection at Loch Garten, currently afforded by the ASP, will not be automatically replicated in existing legislation, and urges the Scottish Government to work with SNH and the RSPB to ensure that the site at Loch Garten could not suffer, or potentially suffer, as a result of the loss of its ASP status.

Snaring

Background

379. Snares are used in Scotland primarily to catch foxes and rabbits as a form of pest control, to protect agriculture and livestock. Although snaring is permitted in Scotland, it is subject to the restrictions contained in section 11 of the 1981 Act. The Nature Conservation (Scotland) Act 2004 (“the 2004 Act”) amended the 1981 Act to impose further restrictions on the usage of snares, such as making it an offence to—

  • set a snare in such a way that it may cause unnecessary suffering;
  • set a snare which is likely to harm animals it was not intended for;
  • allow more than 24 hours to pass without a snare being inspected;
  • upon inspection, not remove or release any animal caught in the snare;
  • possess a self-locking snare without reasonable excuse;
  • sell any self locking snare; and
  • possess or setting a snare on any land without appropriate permission.

380. The former Scottish Executive honoured a commitment made during the passage of the 2004 Act in 2006, when it launched a consultation on snaring in Scotland. Of the 247 responses received, 172 supported a ban, 71 were against a ban and 4 supported limited use of snares by licence only.

381. The position of the current administration was made clear by the former Minister for Environment, Michael Russell MSP, who concluded that snaring should be retained as a land management tool, to protect livestock and crops, but that measures would be brought forward to improve animal welfare aspects of snaring, and the standard of snare operators.127 Some of these measures were brought forward in secondary legislation, in the Snares (Scotland) Order 2010, and some are new to this Bill. However all measures have been brought together in the Bill, including those in the 2010 Order, so that all snaring provisions will be under the amended 1981 Act.

What the Bill proposes

382. The Bill restates the provisions in the 2010 Order that all snares must be—

  • fitted with effective stops to prevent nooses from closing too far (different stops are proposed for rabbits/hares and foxes);
  • checked every 24 hours, at least, to ensure the action is free running;
  • anchored effectively to allow easy location by the operator and prevent suffering to animals caused by dragging snares; and
  • not set anywhere where an animal is likely to become fully or partially suspended or drown.

383. The new provisions in the Bill relate to identification tags and training requirements. The Bill requires that all snares be fitted with an identification tag which shows an ID number and indicates whether the snare has been set for foxes or rabbits/brown hares. It would be an offence for a snare not to have an ID tag. However, it is not the intention that each snare has a unique number, but rather that the number is unique to the person who is setting the snare.

384. The Bill also proposes that it be an offence for anyone to set a snare without having obtained an ID number from the police, and that the police should not issue such a number if they were not satisfied that the person was sufficiently trained. Training requirements will be set by Order and it is expected that issuing of ID numbers would be done by local police force wildlife coordinators.

Requirement for predator control

385. The Committee was made aware, early in its evidence-taking on this issue, that Defra is shortly due to publish a report on snaring in England and Wales, based on new research.

386. There is fundamental disagreement on snaring, between organisations128 that view snaring, if managed appropriately and as humanely as possible, as being essential for managing foxes which predate on livestock, and rabbits which cause crop damage, and organisations129 that want snaring to be banned because they consider it to be indiscriminate, inhumane, unnecessary and ineffective.

387. The Committee explored both sides of this debate in detail. Firstly, it examined the reasons snares were used and why many land management organisations are in favour of their continued use. Within this, the debate predominantly focussed on fox snaring, which was carried out to protect livestock. That includes, on one hand, protecting farmers and crofters from losing chickens, pigs and lambs, and on the other, protecting game birds, such as grouse and pheasants and other wildlife such as waders, plovers and hares.

388. There was some dispute as to whether foxes do, in fact, predate on live lambs, with some conflicting academic research on the issue. Professor David Macdonald and Ray Hewson indicated, in research papers, that foxes do not normally predate live lambs.130

389. The Scottish Government sent the Committee a report by SASA on this issue. That paper notes that—

“There are three main livestock areas that may be affected by fox predation, namely free-range or outdoor poultry, pigs and lamb production. Overall, the direct cost to UK agriculture from fox predation has been estimated at £12 million annually (£9.4 M to the sheep sector; £0.7M egg producers; £0.2M and £0.4m to turkey and goose producers respectively; and £1M to pig producers)”131

390. However, the report does go on to say that there is relatively little empirical evidence about the scale of the damage caused by foxes, and the data that does exist relies on questionnaires sent to farmers. The paper looks at lamb losses specifically, and states that—

“Numerous questionnaire studies report perceived losses of lambs to foxes. These are summarised in White et al. (2000) in which the average percentage of lamb losses to foxes in relation to flock size were reported as between 0.4% and 2.0%. However, reported losses were highly variable between farms. Heydon and Reynolds (2000) stated that pre-weaning lamb predation to foxes averaged 0 to 0.6% of the lambs born, but could in some instances reach 28.6%.”132

391. Jonathan Hall, of the NFUS, made the point that whilst very few farmers set snares, snaring carried out by gamekeepers on sporting estates was vital in protecting livestock, particularly lambs—

“Snaring is done by the professional—that word is important. It is done by a gamekeeper who has gone through the training and adheres to the guidance and all the requirements that the committee discussed earlier. That is exactly the right way for it to be, but it does not take away from the point that hill farming and vulnerable marginal hill farm units benefit from properly done snaring. We are absolutely unequivocal about that. The farmers do not set the snares themselves, but they benefit directly, so the loss of snaring would have a major economic impact on hill units that already operate under vulnerable circumstances, particularly on the west coast of Scotland and in upland situations […]”133

392. On the game management side, several groups134 insisted that fox control was vital to protect game birds on estates, and also to protect the wider habitat. The SGA clearly outlined its view on the consequences of a ban on snaring being introduced in Scotland, saying that it would, “wreck Scotland’s biodiversity for the future.”135

393. Animal welfare organisations fundamentally disagreed with shooting for sport, and objected to the use of snares to protect commercial game species. However, there was no disagreement that foxes do predate on game birds and ground-nesting wild species.

394. There was some dispute about the extent to which snares are used presently, with figures from 25% to 40% of animals killed by snaring, being quoted. It was clear to the Committee that it was difficult to apply a blanket figure to the number of predators currently controlled by snaring, as the numbers vary significantly across the country, depending on circumstances. For example, when the Committee visited the Langholm moor project, it heard that around 20% of fox control was managed by snaring and the rest by shooting. However, it was suggested that this might not be a reflection on experience in other places, as the project was intensively managed and had significant resources that might not be available to hill farmers, crofters or smaller estates.

395. Given that virtually every organisation, including animal welfare organisations, that gave evidence to the Committee accepted that a form of predator control was necessary in certain circumstances (albeit that there was disagreement about what those circumstances were), the Committee turned its attention to the pros and cons of snaring as a practice and what possible alternatives existed, or could exist, to render it unnecessary.

Advantages of snaring

396. Although other methods of predator control were employed, most commonly shooting, many organisations were of the view that snaring remained an important option for them. The main reason given for this was that if foxes and rabbits were only to be controlled by shooting, they would not be controlled in the numbers required and there would be significant economic and environmental consequences as a result. It was also felt that conditions were not always suitable for shooting foxes, such as the cover being too thick, access being problematic, or foxes being close to houses, villages and towns.

397. Snaring was considered by some organisations to be effective as a restraining device, trapping the animal so it could be humanely dispatched when found. It was stressed that snares are intended to restrain only, and not to cause undue harm or to kill.

398. The issue of resources was mentioned as having a significant effect on which method of predator control was employed. Those in favour of the retention of snaring stressed to the Committee that other methods, such as lamping (shooting foxes at night by identification with a light) and shooting, required significant resource i.e. people on the ground, often for long periods of time and often at night, trying to find and kill the animals. It was noted that it was not economical to have large numbers of staff to carry out such labour-intensive culls.

399. SNH are among a number of land managers which do not snare on their land (including the RSPB and John Muir Trust) but SNH does control predators such as foxes, gulls and crows by other methods such as shooting and trapping. Its reason for this was that it did not consider snares appropriate, due to the risk of by-catch, for use in areas where SNH may be encouraging public access and use. However, it noted that snares were a legal and legitimate land management tool in certain circumstances, and supported the use of snares at Langholm, where SNH is a partner in the demonstration project. SNH also supported the use of snaring to aid the capercaillie life project, which aimed to improve the health of the capercaillie.

Disadvantages of snaring

400. A central question posed to the Committee on snaring was, does the end justify the means? Libby Anderson, of OneKind expanded on this in evidence—

“How much loss would there be if snaring was not available at that time and is that loss bearable in economic or convenience terms when you consider the downside of snaring?”136

401. The Committee heard evidence in favour of a complete ban on snaring in Scotland from several organisations. Examples were given of animals being caught in snares and left in significant pain and distress, struggling to get free. In supplementary evidence to the Committee, OneKind cited a paper which found that—

“For both snares in all settings, an average of 35% of fox captures were around the body rather than the neck. Overall, injuries were similar for all snaring methods and capture-loop placement, suggesting that the addition of swivels and a break-way hook did not improve the performance of the snare. Of 64 foxes, one was dead, two had severe internal organ damage (internal bleeding), one had joint luxation at or below the carpus or tarsus, two had major subcutaneous soft tissue maceration or erosion, three had fracture of a permanent tooth exposing the pulp cavity and four had major cutaneous laceration. Overall, 9.4% of animals had indicators of poor welfare by ISO137 criteria (severe injury). For how long these animals suffered from these injuries was not known, but could have been for up to 24 hours as the snares were checked once daily. Other measures of welfare, besides injury scores, were not collected.”138

402. There was a discussion about the indiscriminate nature of snares, and whilst land managers may use them with good intent, to catch foxes and rabbits, there were many documented cases, including photographs, of animals such as badgers, hares, wildcats, mink, capercaillie and domestic cats and dogs being caught in snares and suffering pain, distress and sometimes death as a consequence.

403. Dr Hal Thompson, of the British Veterinary Association (BVA), told the Committee of possible consequences of a badger being in a snare for up to 24 hours—

“[…] if an animal is in a snare for 24 hours the skin will probably break after it is released. I have sometimes wondered whether to release a badger in a snare or shoot it. Would it be more humane to shoot a badger that I have found in a snare? If I heard that someone had chosen to shoot a live badger caught in a snare, I would not necessarily criticise them. I have examined the skin from badgers under those circumstances, and I have found underlying pathology. In other words, I can imagine that after the animal is released the skin would break a week later, because of the pressure that is created.”139

404. The SGA said that photographs publicised by animal welfare organisations of animals having suffered injury and distress because of snaring did not come from managed estates, but from “non-professional poacher types around urban areas”.140

405. Mike Flynn, of the SSPCA, made the point that the problem did not only lie in snares being set illegally and improperly—

“Three weeks ago, outside Aviemore, a snare that had been set by a very reputable SGA member on a very reputable estate caught a dog, which was owned by the next-door neighbour. The injuries were horrific. The dog had not been in the snare for more than 12 hours, because it had last been seen 12 hours before it was found. The guy took our inspector to the snare and said, "You show me that I've set that wrong." The snare was totally in accordance with the Snares (Scotland) Order 2010; there was nothing that the dog could have got tangled in.”141

406. Alex Hogg, of the SGA, was of the view that this example demonstrated the improper control of the dog, rather than being a problem with the snare or its operator—

“With regard to the dog that was running about and was caught in a snare, it must be brought to everyone's attention that it is bad practice to allow your pet to roam the countryside. Dogs must be kept under reasonable control. I would worry to death if one of my dogs disappeared for 10 minutes at home. That is bad practice, and it is not the dog's fault—it is the fault of the people who look after the dog.”142

407. Land managers also made it clear that there were measures that could be taken to improve snaring still further, and that such work was on-going. Hugo Straker, of the GWCT, told the Committee—

“The trust is also examining other things such as relaxer locks, other swivels and break-away devices, which might be considered in order to allow badgers, which have greater pulling power than foxes, to get away. I have here an example of the type of snare that is currently being considered. The break-away is the little metal ring by which the noose is attached. At a certain pulling pressure, that ring will open and allow any animal larger than a fox to be removed. We are always looking for opportunities for snares to be target-species specific, so that they can hold the problem animals, such as foxes, but not non-target species such as brown hares and badgers.”143

Veterinary view on snaring

408. The Committee sought the view of vets on snaring. Dr Hal Thompson, of the BVA, confirmed that he considered snaring to be the least inhumane method of pest control. Giving evidence to the Committee on 6 October, the Dr Thompson told the Committee that he did, indeed, consider snaring a “necessary evil”144, and commended the Bill for establishing a compromise between those who wished to continue to use snares, and those who would like to see them banned on animal welfare grounds—

“What is in the bill is excellent. If the bill is adopted and its provisions put in place, that will provide for very effective use of snares. In other words, you would be telling people that snares must be checked within 24 hours, that they must have labels and so on. All those things are very sensible and reasonable controls, and they present a balance between the people who require snares and the people who are interested in the protection of animals and animal welfare. I do not have any problems with what the bill contains in that regard. It is a commendable piece of proposed legislation.”145

409. Dr Thompson did note, however, that it was unlikely that a majority of vets would support snaring as a method of control—

“If you were to take a vote of all veterinary surgeons, I suspect that the majority would be opposed to snaring, but a different view would probably be taken among rural veterinary surgeons. It would be much the same as asking veterinary surgeons whether it is a good thing to eliminate badgers. The vote would probably be that it is not, but veterinary surgeons in the south-west of England who deal with tuberculosis would take a different view.”146

410. Snaring is supported as a method of control by the Veterinary Association of Wildlife Management. In a letter to the Scottish Government in July 2009, the Association concluded that—

“[…] whilst we may not regard snares as ideal in terms of animal welfare, we believe that the adverse consequences from their use can be minimised by rigorous application of the measures listed in the Guide, and that these adverse consequences are far outweighed by the adverse consequence of not controlling the fox population.”147

Alternatives to snaring

411. A further anti-snaring argument centred on the alternatives available to land managers, and there was significant dispute about the effectiveness of such alternatives. Those who wished to see a ban on snaring argued that alternatives, such as lamping and shooting, were effective in keeping numbers to an acceptable level, and cited examples of land managers, such as the RSPB, who do not use snares on their land.

412. The Committee visited the RSPB reserve at Abernethy, which has a non-commercial shooting tenancy on it, and also had neighbouring grouse moors. The Society reported that it was able to keep foxes at an acceptable level at Abernethy without use of snares and its shooting tenants, and neighbouring estates, were happy with the extent of the fox population on RSPB land.

413. However, the RSPB is a partner in the Langholm Moor Demonstration, which the Committee visited, which does use snaring as part of the project’s predator control.

414. Robbie Douglas Miller, of the SRPBA, spoke to the Committee about the various alternatives to snaring—

“It is a huge mistake to suggest that shooting, which is very time consuming and haphazard, is the alternative to snaring. Lamping a fox is a professional job. It is not normally an easy task and my experience is that farmers are not as equipped as keepers to carry it out. At certain times of year, particularly at lambing time, you do not have the time to spend three, four, five or six hours of the night driving around your property, looking for a fox that might or might not be killing your or your neighbour's lambs.”148

Licensing snaring

415. The Committee asked Scottish Government officials if Ministers had considered licensing snaring so that people would have to demonstrate why and how they intended to use snares rather than any other form of control, and to ensure better compliance with the snaring code.

416. A Scottish Government official replied that licensing was not considered appropriate due to bureaucracy and cost implications, adding that—

“It would mean, for example, that we would have to maintain a register, with all the attendant costs and data protection issues, and decide when people should be put on or taken off the register. We would, in effect, legally sanction particular people to become licensed snare operators. I do not think that the Government felt that that was necessary or required.”149

417. The Committee acknowledges that snaring provokes a strong, emotional response in Scotland and that there are many people who hold strong views on whether or not snaring should be permissible. It is clear that the Scottish Government has sought a compromise in the Bill, which seeks to find a balance between an outright ban and extensive and loosely regulated use of snares.

418. The Committee respects the deeply held views of those who support an outright ban on the use of snares because of their belief that they are inhumane, indiscriminate and out-dated. The Committee notes the evidence it received which detailed cases of animals suffering significantly, both whilst held in a snare, and afterwards, when released. The Committee also notes the evidence received on the cases of non-target species being caught in snares, from wild animals, such as otters, badgers and capercaillie, to pets, such as dogs.

419. However, the Committee also acknowledges that pest control is a vital part of land management and that, if properly regulated and managed, limited and appropriate use of snares should continue to be an option for land managers in Scotland.

420. The Committee recommends that the Scottish Government works with the relevant bodies to continue to secure further advances in snaring technology and in our understanding of animal behaviour. Both these factors should help in the development of more humane snares and snaring techniques and reduce the amount of non-target species caught.

Enforcing snaring law and guidance

421. The law in Scotland on snaring is supported by guidance, the latest edition of which is the Snaring in Scotland – A practioners guide, Third edition – September 2010. This guidance is produced by the SGA, BASC and GWCT and supported by the Scottish Government and 13 other organisations.150 The guide contains details of how snares should be set, where they can be set, how to avoid by-catch (including pictures of the prints of different animals), and provides a detailed summary of the legal position. The guidance is regularly reviewed and updated as necessary.

422. The question arose as to how to police the guidance and ensure that it was being adhered to in all situations. Animal welfare organisations said that the problem of illegal snaring, i.e. snares being set not in accordance with the law and the guidance, was still very much an issue and emphasised that enforcing the law on snaring was very important.

423. Organisations such as the SRPBA and SGA stressed that its members were committed to making many of the new practices outlined in the Bill work. The SGA stressed the great efforts that the industry was making to ensure all those who use snares abided by the law and the guidance, and it said huge progress had been made on this in recent years.

424. One aspect that was discussed was the requirement to check a snare every 24 hours. The reason behind this requirement is to ensure that any animal caught in the snare, whether it is the intended catch or by-catch, is not caught for a period longer than 24 hours, in order to limit any distress or suffering. The Committee was made aware of anecdotal evidence that, on some estates, hundreds of snares were being set at a time, and they questioned whether this large number of snares could physically be checked in a 24-hour period.

425. Land managers told the Committee that the number of snares set at any one time, on any estate, depended very much on the number of staff available to check them. If it were the responsibility of one person, then fewer snares could be set, but if more staff were available, then greater numbers could be set and checked with the stated requirements. However, there was currently no official method of recording when a snare had been checked, and regular checking ultimately relied on trusting that snare operators were competent, appropriately trained and abiding by the law.

426. The Scottish Government’s consultation on a draft bill did contain a requirement to keep records on where and when snares had been set and to make those records available to the police on request but that provision had not been carried through to the Bill. BASC told the Committee that whilst record keeping was not part of statute, it was contained in the guidance. BASC added that it would have no difficulty with that being on the face of the Bill.

427. It was further suggested by the SSPCA that record keeping would protect the land manager as well as identifying those who snared illegally, and an example was given to the Committee of 300 snares having been set on an estate by a keeper who then departed, leaving the estate owners unclear as to their exact location.

428. The Minister said that it was a matter for estates to ensure snares were properly checked in accordance with the law, but added that she would give further thought as to whether any system could be introduced for proving that snares had been checked with specified timeframes.

429. The Committee invites the Scottish Government to take stock, after an appropriate period of perhaps five years, as to the outcomes of the snaring provisions and whether they have been deemed to have had a positive effect. Accordingly the Committee invites the Scottish Government to consider whether to take a power to enable them to ban snaring. Such a power should only be exercised under the super-affirmative procedure and only if the Scottish Government considers that the current approach is not working and cannot be made to work.

Training

430. Scottish Government officials told the Committee, on 23 June that, given that Ministers are convinced of the need to retain snaring as a land management tool, the most important thing was that those setting snares could demonstrate that they were adequately trained. A training programme had been developed by stakeholder groups, such as BASC and the GWCT, and trainers had begun to teach those operating snares.

431. BASC said that three to five thousand people use snares legitimately and 600 have been through the course (at the time they gave evidence to the Committee on 7 September), which had started in March 2010. This meant between 12% and 20% of users would have been trained in approximately five months. At that rate, it would take between a further two to four years to train all users. The Scottish Government said that all relevant people would be trained “in a year or so” following the commencement of the provision. The Minister had a slightly different view, telling the Committee it would take up to two years.

432. OneKind its call for a ban on snaring notwithstanding, called for more animal welfare input into training courses – such as the advice of vets. The SSPCA, whilst also stressing that it favoured a ban on snaring, has had some involvement of providing input at an early stage, and the SRPBA had extended an invitation to the SSPCA to attend the course to see it in practice, which the SSPCA had accepted.

433. The Minister told the Committee that animal welfare concerns were taken into account as part of the courses and were “overtly discussed”.151

434. The Committee recommends that the Scottish Government works closely with those delivering the relevant training courses on snaring to ensure that everyone who requires the training receives it no later than two years following the commencement of the provision.

435. The Committee was encouraged by the Minister’s assurances that animal welfare issues were being discussed at training courses for snare operators. The Committee considers such input to be important in helping to reduce the potential suffering of animals caught in snares and in underlying that snaring is not an activity to be undertaken lightly.

Identification tags

436. The GWCT stood out from other land management organisations in favour of snaring as being more critical of some of the provisions in the Bill, specifically the tagging of snares, as they felt it was not practical—

“We […] remain concerned about the practicality of the snare tag-coding system and suggest this is removed from the Bill. The proposal for tags on all snares does not appear to be likely to improve practice or welfare, remains open to abuse and will be difficult to police.”152

437. This view was not shared by other organisations, but the SGA flagged the need to ensure that tagging did not interfere with the free running of the snare, particularly on the smaller rabbit snares.

438. The Committee notes the concern that tag coding snares is impractical but also notes that this is a minority view. The Committee supports the introduction of identification tags on snares.

439. The Committee asks the Scottish Government to give consideration to issuing a separate identification number for each individual snare tag. The Committee also recommends that the Scottish Government ensures that such numbering be sequential, to allow for easy identification, and that records are kept of which numbers have been issued to which operators. Alternatively, the Committee asks the Scottish Government to consider fitting a barcode, or some other means of electronic identification, to each tag which could easily and practically be used to keep records of when a snare had last been inspected.

440. An issue was raised concerning the legal presumption in the Bill, which states that the ID number on a snare would be presumed to relate directly to the person who physically set the snare in question.

441. A solicitor with Grigor and Young, Elgin, expressed significant concerns about the introduction of such a legal presumption—

“This is a legal presumption which must be rebutted by the accused. In practice, this will be a very difficult thing to do, unless the Trapper takes photographic records of the status of the snare just after he set it. The wording suggests that the named person “set the snare in position”. The logic is that if a snare is found in an offensive position/incorrectly tagged, or the tag has been altered/removed there is an ex facie presumption that the person who set the snare will esto be guilty of an offence. It is common to find snares which have been disturbed by domestic animals or ferae naturae. I am also concerned that, given the access legislation, it will be very easy for a third party to maliciously tamper with a snare for a variety of reasons […] In the interests of natural justice, I would like to see this presumption removed and the wording clearly adjusted.”153

442. OneKind addressed the concerns raised by Grigor and Young in its supplementary written submission, stating that they may have read too much into the provision, concluding that—

“The Crown would still have to prove that the person who set the snare was also responsible for the offence under consideration, and the presumption would presumably be rebuttable.”154

443. The Committee asks the Scottish Government to note the points raised regarding the legal presumption in the Bill, which states that the ID number on a snare would relate directly to the person who physically set the snare. The Committee further asks the Scottish Government to consider this issue alongside the Committee’s comments on the possible issuing of a unique sequential number for each snare tag.

Inconsistency between EU and domestic legislation?

444. SNH raised the issue of the inconsistent definition of snares in domestic and EU legislation. The 1981 Act refers to ‘traps and snares’ as two distinct things, whereas the EU Habitat Directive uses the terms “traps that are not selective”. This creates a problem domestically, for example in granting licenses for methods prohibited under the Habitats Directive. If a license is granted to take or kill hares, which are listed under Annexe V of the Habitats Directive, it is licensing use of a trap that is not selective, but does this include snares, which are separated from traps in the 1981 Act?

445. SNH told the Committee that there was a case pending which may clarify this situation, but concluded that—

“[…] the legal fraternity has always had difficulty in establishing whether someone who is snaring mountain hares is falling foul of the habitats regulations.”155

446. This issue was also brought up by OneKind, who told the Committee that during a case brought against Spain a few years ago, the court accepted that snares did fall under the heading of non-selective traps as described in the Habitat Directive.

447. The case referenced by OneKind was European Court of Justice case 221/04, Commission of the European Communities v Kingdom of Spain. This case concerned the use of stopped snares for the hunting of foxes in certain regions of Spain. The case was decided in favour of Spain.

448. The Committee notes the comments made on the inconsistency between domestic and EU legislation on the definition of a snare and how this leads to uncertainty about licensing snares as a method of catching mountain hares in particular. The Committee recommends that the Scottish Government consider how best to correct this anomaly.

Invasive and non-native species

Background

449. These provisions were informed by proposals developed by a Scottish Government working group (which included representatives from government, agencies, local government, research institutes, police forces and environmental groups), following the passing of a motion in the Scottish Parliament in 2008 which requested that the Scottish Government improve the legislative framework for non-native species.

450. An invasive non-native species (INNS) is one which has been introduced to Scotland and is deemed to have a negative impact on the environment, health or the economy.

451. Currently, the legislation which deals with the release of animal and plant species is disparate, with main provisions found in the 1981 Act, but other relevant provisions found in legislation such as the Destructive Imported Animals Act 1932 and the Import of Live Fish (Scotland) Act 1978.

452. As was mentioned earlier in this report, Scotland, as part of a group of relatively small islands, is particularly protected from non-native species being brought into the country, either accidentally on deliberately, by humans. There are numerous examples of the consequences of such species being introduced. A well-known example is that of the red and grey squirrel. The red squirrel is native to Scotland, and used to have a wide spread and healthy population. However, whilst Scotland is still a stronghold for the red squirrel, that population has now dwindled to approximately 120,000. A significant factor in this decline has been the introduction of the non-native grey squirrel in the 19th century. Grey squirrels are larger, more robust, and can dominate food sources at the expense of the red squirrel. Grey squirrels can also carry the squirrel pox virus which is harmless to them, but can be fatal in red squirrels. This is a clear everyday example of the effect of an invasive non-native species on a native species.

453. There have many other examples in the plant world, such as the common problem with rhododendron, which is native to south-west Asia and South West Europe, and is believed to have been introduced to gardens from Spain, and subsequently escaped and now grows in forests, shading out the native forest vegetation. Once established, rhododendron is very difficult and labour intensive to remove, and is a serious problem in parts of Scotland.

What the Bill proposes

454. The approach taken in the Bill is guided by the internationally recognised three stage hierarchical approach of a) prevention, b) eradication and c) control and containment, and makes new offences banning the release of an animal, or the growing of a plant, outwith its native range. The Policy Memorandum describes this as a “general no-release approach”.156 However, the provisions are intended to be sufficiently flexible to allow the release of non-native species considered to be beneficial and appropriate, and also to allow certain non-native birds to be released (for sporting reasons). Release can be permitted either by Order or by licence. The Government intends to bring forward a code of practice on this issue.

455. The Bill allows the Scottish Ministers to list, by order, invasive plants and animals which people will not be permitted to keep, or will require a licence to keep. The Bill also addresses notification concerns, by requiring that the Scottish Ministers be notified (by those who would be reasonably expected to identify the species) of invasive animals and plants specified by order.

Central questions

456. As with other aspects of this Bill, when scrutinising the provisions relating to INNS, several central questions/themes emerged at an early stage:

  • is establishing a general no-release presumption for all non-native species the correct starting point, fundamentally, for legislation on INNS?
  • how are native or non-native species defined? Should historical factors be considered in seeking that definition?
  • similarly, how are other key terms in the legislation, such as ‘in the wild’ and ‘native range’ defined? Is it going to be clear enough where the wild starts and stops, and what is the extent of a species natural native range?

General no-release presumption

457. The Committee notes that the measures in the Bill would apply to all non-native species rather than only invasive non-native species. The reason for this approach in the Bill has been clearly stated as centring on prevention, and that it is often not known at the time of release whether a non-native species will come to be regarded as invasive.

458. As with other areas of the Bill, there was a clear separation of views on the fundamental position behind the provisions in the Bill. On one side were those in support of the under-pinning principle of a general presumption against the release of non-native species, invasive or otherwise. Those supporting this including OneKind, the National Trust for Scotland, the Ornamental Aquatic Trade Association (OATA), Plantlife, SWT, RSPB and SE Link.

459. On the other side of the argument, organisations such as the SRPBA, SEBG and SGA believed this approach was misguided and could leave a legacy of unintended consequences. They believed that the policy did not take sufficient account of the benefits some non-native species had brought to Scotland, or the damage that invasive native species could cause.

460. One argument advanced in support of this was that species were constantly in a state of flux and affected by so many variables and longer term changes, such as those brought about by climate change, which can affect habitats, location of species, number of species, migratory patterns, that the notion of ‘native’ and ‘native range’ no longer really applied.

461. Malcolm Strang Steel, of the SRPBA, outlined his concerns to the Committee on 7 September 2010, that the Bill had adopted an extreme position, which did not take sufficient account of non-native but naturalised species.”157

462. Dr Paul Walton, of the RSPB, said that controlling non-native species, whether or not they were currently deemed to be invasive, was not a case of species xenophobia. Rather, he said, it was to protect the richness and balance of Scotland’s biodiversity and that a general no-release presumption was simple to understand.158

463. The Committee notes the concerns regarding the Bill’s establishment of a presumption against release of non-native species, and also the views of those in favour of the policy. The Committee supports the general no-release presumption provided for in the Bill.

Code of practice and definition of terms

464. It seems to the Committee that establishing clearly understood and accepted definitions of terms such as ‘native’, ‘non-native’, ‘native range’ and ‘in the wild’ will be fundamental is making the legislation workable, and to fulfil the desire that the general no-release presumption be simple to understand.

465. During the Scottish Government’s consultation, there was a great deal of comment about the difficulty of defining such terms. This concern continued in evidence to the Committee, and was expressed by Professor Colin Reid, BASC, the Law Society of Scotland and the National Trust for Scotland. Questions arose such as how native is native? Native to the UK, Scotland, or a part of Scotland? What constitutes the ‘wild’? Are gardens, fields and roadside verges part of ‘the wild’?

466. On the issue of definition of certain terms, SNH referenced the proposed of code of practice, and noted that—

“The code will need to clearly define the terms ‘native range’ and ‘in the wild’ as used in the Bill, but also recognise that some native ranges will change as a result of climate change. The native ranges of many species are already well defined, for example by the Botanical Society for the British Isles or the British Ornithologists Union.”159

467. Many of those concerned with the definition of ‘in the wild’ were horticultural organisations such as the Horticultural Trades Association (HTA). The HTA expressed a preference for a voluntary scheme which avoided blacklisting good garden plants. They also expressed concern about the accuracy of naming hybrid plants as INNS. The Royal Horticultural Society also commented on this and questioned where ‘the wild’ would be defined as starting and ending when looking at gardens and grounds of estates. It felt it unreasonable that people unknowingly keeping INNS plants in private gardens could be committing an offence. Britain in Bloom and Best Kept Village competitions also regularly use non-native species in displays – would these be at threat under the proposed INNS regulations? Both groups made a plea to be consulted as the code of practice was being developed as they said horticulturalists were often omitted from such opportunities.

468. Plantlife told the Committee that a great deal of work was on-going in the Scottish Government led working group on these definitions and added—

“We are convinced that we can define those terms clearly and have useful definitions that will support the bill. Those discussions have been long and they continue. We think that the code of practice that is being developed will be strong enough to help to define those terms in a way that is useful to the bill.”160

469. The Scottish Government published an early draft of its suggested definition of these terms before the Minister gave evidence to the Committee on 3November 2010.

470. It is clear that the INNS code of practice will be a very important document in realising the provisions in the Bill and establishing good practice and therefore needs to be the subject of full consultation. Professor Reid also stressed the need for the code and subsequent changes to it to be subject to proper parliamentary scrutiny.

471. The Scottish Government made available an early draft of the code of practice to the Committee during its Stage 1 scrutiny. The Scottish Government intends to consult fully on the draft during the Bill’s passage through the Parliament. The draft code was published on the Committee’s website161 and gives initial proposals on many of the issues that were raised in evidence, such as definitions of terms.

472. The Scottish Parliament’s Subordinate Legislation Committee reported to the Committee that it considered that the Scottish Government has not given adequate justification for the lack of Parliamentary scrutiny proposed in respect of the code for INNS. Since the code provides a standard which can be used as evidence to determine criminal liability, the SLC recommended that the procedure chosen by the Parliament with respect to animal welfare codes under the 2006 Act should be adopted for the code under new section 14C, namely the affirmative procedure.

473. The Committee notes the volume of evidence which, rightly, highlights the potential difficulties in terms of the clarity of the legislation and the guidance, of the definition of terms such as ‘in the wild’ and ‘native range’. It is very important that such definitions be clear and easy to understand.

474. The Committee welcomes the Scottish Government making available an early draft of the code which contains draft definitions, which seem broadly helpful. The Committee also notes the Scottish Government’s intention to consult widely on these definitions.

475. The Committee notes that roadside verges are defined as non-wild in the draft code, and that there is particular potential for invasive plants to escape from such verges into the wild. The Committee would not want to prevent local communities from planting colourful displays to brighten up their area. However, the Committee asks the Scottish Government to give further consideration to whether it is appropriate for roadside verges to be designated as being wild, and, if it is considered appropriate, whether any additional measures could be taken to limit the risk of escapes from such areas.

Code of practice

476. The Committee notes that the code of practice on invasive non-native species will be vital in providing clarity on all relevant matters, from definition of the frequent terms involved, to how species control orders will operate. The Committee welcomes the Scottish Government’s intention to fully consult on its draft code during the Bill’s passage through Parliament and considers that it is important that the final code be subject to the affirmative procedure of parliamentary scrutiny.

Species Control Orders

477. The Bill establishes a new system of Species Control Orders (SCOs), which would enable Scottish Ministers, SNH, SEPA and the Forestry Commission Scotland to set out measures that would be required to be taken to control or eradicate INNS. However, the Bill does stipulate that voluntary control agreements should be the first recourse and that SCOs would, therefore, be a last resort.

478. A Scottish Government official explained how SCOs would be used—

“[…] it is important to say that we do not envisage species control orders being used in a widespread way. If somebody had Japanese knotweed on their land, say, they would not automatically be asked to clear it. The idea behind species control orders is that the relevant agencies can use them to target work so that they can deal with new populations that arrive. If, say, somebody had bullfrogs in their garden that were about to spread, that could have significant implications for Scotland. If access to that land was not permitted, not much could be done about that. The purpose of the orders is to enable something to be done about new populations of species where there are obvious problems.”162

479. SNH supported the Bill’s provision for it to be able to charge, at its discretion, owner/occupiers, for the costs of implementing an SCO and noted that it was very unlikely that this would ever result in a person being charged for something that was the original responsibility of a predecessor—

“It is right that we should have the option to pass the charge for species control to a landowner, at our discretion. In reality, we would be unlikely ever to place a cost on a landowner for work that was needed as a result of what a predecessor owner had done, whether it was the landowner's grandfather or someone else. I think that in reality that would not happen. However, the option to pass costs to the owner, if necessary, should be kept as a backstop […] In the vast majority of cases the costs will be met by the public purse.”163

480. The principle, that the person responsible pays any resulting costs, also known as the ‘polluter pays’ principle, was supported by several other organisations, such as the Scottish Countryside Alliance.164

481. However, landowners’ organisations expressed concerns about this. The SRPBA said—

“Section 14F(2) also provides that a control order may require payments to be made either by the relevant body or by the owner/occupier in respect of reasonable costs incurred by a person carrying out an operation. The SRPBA strongly calls for adequate funding for these works to be made available if there is no fault on the part of the owner/occupier. The Scottish Government has previously cited European rules as a reason for not funding such works under the SRDP but if this is the case then alternative funding streams must be developed, and quickly.”165

482. The Royal Horticultural Society (RHS) was concerned that, given landowners could be charged for being required to control a species, there was no requirement on the face of the Bill to assess the level of threat before an SCO would be issued—

“The RHS’s view is that without sufficient safeguards this provision is disproportionate and while the supporting documentation lays out the circumstances and interpretation of the provisions which go some way to allaying fears, these are not part of the legislation. There needs to be much greater clarity about what would trigger the use of an SCO and what steps would be necessary to show that such a power is being used properly.”166

483. The Committee considers that a system of Species Control Orders is necessary as a backstop to the general invasive non-native species regulations and to provide statutory backing for the code of practice.

484. The Committee also believes that it is appropriate for SNH to have powers to recover costs of removing a species from a property from the landowner, if circumstances warrant it (the Committee expects that this would happen very rarely). However, the Committee recommends that the Scottish Government ensure that the code of practice gives detail and examples of what would lead to this ‘polluter pays’ principle being invoked.

485. The Committee also recommends that the Scottish Government ensure that trigger points that would lead to a Species Control Order being issued also be detailed clearly in the code of practice.

Identification of lead body

486. Several submissions and witnesses167 raised concern about the Bill not identifying a single lead body for dealing with INNS matters. An example of the current lack of clarity on this, and the potential consequences of that, was highlighted by Dr Paul Walton, of the RSPB, in evidence to the Committee on 15 September—

“One example that involved the RSPB was with the species called crassula helmsii, which is also called the New Zealand pygmy weed and has a number of other common names. It is a highly invasive freshwater aquatic plant from New Zealand [...] We found some of it growing in a wee pond outside a visitor centre at our Lochwinnoch nature reserve. We set to work getting rid of it […] My job was to phone the relevant authorities. I knew that there was an SSSI in the area, so I phoned SNH. The area staff's view was that it was probably a matter for the Scottish Environment Protection Agency, but when I phoned the relevant people in SEPA their view was that it was probably a matter for SNH. We were left in a situation in which neither of the agencies nor anyone else was clear about who would take a co-ordinating role.”168

487. SNH responded to this and said that it would be helpful for a lead coordinating body to be identified, in order to direct the appropriate lead operational body, and that the appropriate lead coordinating body would be SNH, providing the role would be appropriately resourced.169

488. SNH was of the view that designation of such a lead body should be made in the code of practice, rather than on the face of the Bill, so any subsequent changes, perhaps made by future administrations or to reflect changing circumstances, would not create a requirement to amend primary legislation.170

489. The Committee believes it is important for one clearly identified agency to act as a lead coordinating body for INNS provisions in Scotland, to avoid issues being passed from one organisation to another with no action being taken to address the problem. The Committee supports the view of SNH that it should be the lead coordinating body for such matters and recommends this to the Scottish Government.

Exemptions

490. The Bill exempts the common pheasant and red-legged partridge from the provisions making it an offence to release any animal from captivity to a place outwith its native range. Many organisations were not satisfied with this exemption, for different reasons. Organisations such as the GWCT and the SGA were concerned that the exemption set a precedent for the separate treatment of these birds and that the provision would enable future administrations to make alterations to their status by order. They argued that although many did not consider these birds to be native, they were certainly naturalised and should be treated as native species.

491. However, other groups argued that as the birds were not native and, given that population numbers in Scotland were significant, the Bill should not provide the exemption it currently does. SE Link commented on this—

“[…] the research that has been done has revealed that they can have a negative impact, particularly at high densities. They can reduce the species diversity of ground vegetation layers, particularly in woodland. They can alter hedge structure, and some work has shown that that impacts on declining farmland bird nesting habitats, such as those of yellowhammers. They can reduce the availability of overwintering invertebrates, which are an important food source for native wildlife. They can cause the overnutrification of soil; they add nutrients to soil and leave it with nutrient levels that go way beyond what would be expected in woodland. There is also quite a bit of evidence that, at high densities, there can be disease transfer to native birds, particularly at feeding areas.”171

492. The RSPB suggested how this should be tackled in the Bill—

“Pheasants and red-legged partridges are covered by the bill as a sort of permanent exemption. We propose that the permanent exemption is removed from the bill, but we would expect those species to be covered by the provisions in section 14(2) of the bill, under which ministers can specify the types of animals to which the presumption does not apply.”172

493. Animal welfare organisations also argued that the exemption is not justifiable because the birds have the potential to be invasive as well as being non-native. They cited examples of these birds causing significant damage and called for them to be regulated.

494. Some organisations, such as BASC, the SRPBA and the SEBG, welcomed the exemption in the Bill, and saw it as affording appropriate protection to valuable game species.

495. SNH confirmed that it was not aware of any biological reason for exempting pheasants and red-legged partridges, but recognised that the Scottish Government had made a decision to exempt them on the basis of their economic value to the rural economy. It noted that this was a “major departure from mainstream policy”.173

496. Having said that, whilst SNH noted that it was aware of reported problems, mainly in North-East Scotland, of the release of such birds in high numbers causing damage to habitat and biodiversity, it did not think that this was an extensive problem, and believed it to be localised rather than wide-scale. SNH also said that where such instances had occurred, they had been adequately dealt with.174

497. The Committee put to SNH that, without any backstop power on this in the Bill, it was possible that the problem, although perhaps not extensive at present, could worsen. SNH replied that this was possible only on non-protected sites, as they had powers on protected sites.175

498. The Association of Shellfish Growers and the Shellfish Association of Great Britain both requested that the Pacific oyster be added to the list of species exempted from the general no-release presumption. Both note that the Pacific oyster is currently subject to a general release licence, and that failing to exempt it would pose a significant threat to the “commercially important Pacific oyster [...] industry in Scotland.”176

499. The Committee notes the concerns expressed in relation to the exemption of pheasants and red-legged partridges from the INNS provisions, to allow what are classified as non-native species to be generally released.

500. The Committee is not aware of pheasants or red-legged partridges currently being regularly released in Scotland in such high densities as to cause significant damage to habitat or biodiversity. However, the Committee asks the Scottish Government to consider putting a reserve power in the Bill to allow it to restrict the release of these species, should they ever be released in such numbers as to cause significant habitat and biodiversity damage.

501. The Committee notes the call for the Pacific oyster to be added to the list of exempted species and asks the Scottish Government to clarify its position with regard to the Pacific oyster.

Species licensing and protection

Background

502. Generally speaking, a species licence is granted to allow a practice that would otherwise be prohibited – often when a protected bird or animal is required to be killed, or a protected plant to be removed. Although four different Acts currently govern species licensing in Scotland, the 1981 Act is the primary Act being amended by the Bill. Section 16 of the 1981 Bill allows most activities prohibited by the Act to be licensed for certain purposes. Administration of the licences is split between Scottish Ministers (public safety and land management) and SNH (scientific, research or education purposes).

503. This raises questions such as:

  • at what point, if at all, should humans intervene in the population of any species? What is an ideal population of any one species and what criteria should be used to determine that?
  • under what circumstances, if at all, should protected species be controlled? For example, is it acceptable for licences to be given to protect game species from birds of prey?

504. Alex Hogg, of the SGA, posed the question, “at what point do the numbers of any species need to be managed?”

“You have to stop protecting species and start managing them. If we do not manage the species we will end up with one protected species eating another protected species. At some point, we have to decide which one needs more protection.”177

What the Bill proposes

505. The Bill would alter the administration of species licences slightly by making the Scottish Government responsible for all licensing matters and giving the power to delegate administration to SNH by written instruction, or local authorities by order. The Policy Memorandum states that it is the intention that local authorities should only deal with licences as they relate to development planning.

506. On the issue of planning developments, the Bill seeks to address a perceived inconsistency between domestic and European law with regard to species licensing. Currently, the Conservation (Natural Habitats, &c.) Regulations 1994 protect species protected under EU law and allow for a licence to be granted for species where doing so is justified by “imperative reasons of over-riding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment.” This allows licences to be granted for development purposes, unlike the 1981 Act, which protects listed species and does not permit licences to be granted to allow development activities. The Bill seeks to place the 1981 Act on the same footing as the 1994 regulations, thus making it possible for licences to be granted for development purposes, providing there is a demonstrable social, economic or environmental benefit and there is no alternative. Note that these provisions do not apply to birds.

507. The Bill also makes provision to remove current duplication in legislation between species listed in both the 1981 Act and 1994 regulations.

Issuing of licences

508. There was considerable evidence that argues against the proposal for local authorities being bodies to which Scottish Ministers could delegate the issuing of licences. This opposition came both from local authorities themselves (Falkirk Council, Highland Council and Comhairle nan Eilean Siar) and other organisations.178 The RSPB noted, at the Committee meeting on 15 September, that as local authorities are required, in any event, to consult SNH, it would be simpler to make SNH the sole licensing body? SNH also questioned what would happen if a local authority were to act against the SNH advice.

509. However, SNH said it was appropriate for local authorities to issue licenses in certain circumstances, and noted that they already deal with issues such as planning applications involving protected species. SNH said it would be highly desirable for local authorities to consult SNH before issuing any licence and did not consider that there would be any conflict in an authority dealing with a licence application from another department of the same authority.

510. The Minister noted that she was not aware of any significant opposition to these proposals during the Scottish Government’s consultation on a draft bill, and added that the provision had been included to ensure flexibility. She added that it was something that local authorities already did, and that it should not, therefore, be too burdensome. She also noted that it was not intended that local authorities would be asked to do this immediately upon the Bill being enacted, but that a period of discussion would take place with local authorities in advance of specific instances. It was not intended that the local authority delegation mirror that of SNH.

511. SNH had no issue with the appropriateness of it being the lead body on species licensing, but did raise concerns about the additional burden this could place on resources. This issue is explored further in the section of this report on the Financial Memorandum of the Bill.

512. The Committee recommends that the Scottish Government reconsider which body, or bodies, should be delegated the function of issuing licenses, in light of the volume of evidence received stating that it is not appropriate or necessary for local authorities to have this function.

513. Should local authorities remain as potential licensing bodies, the Committee invites the Scottish Government to clarify what might happen should a local authority decide against following the advice of SNH on whether to issue a species licence or not.

Licence for social, economic or environmental benefit

514. The Committee understands that the reason for this proposed change is to address a current anomaly between the 1981 Act and the EU Habitats Directive. The Habitats Directive protects certain species, such as the otter and wildcat, and allows control of them, under certain circumstances, for social, economic or environmental benefit. The 1981 Act protects other species, such as the red squirrel and pine marten.

515. The SWT said in its written evidence—

“We are seriously concerned by the proposal to extend the grounds on which species licences can be granted to include “for any other social, economic or environmental purpose”. The level of protection afforded to European Protected Species under the Habitats Directive should be the minimum level of protection for species of conservation importance in Scotland, i.e. that the activity must be for imperative reasons of overriding public interest or for public health and safety; there must be no satisfactory alternative; and that favourable conservation status of the species must be maintained. We do not accept that there should be any diminution in protection afforded to our most vulnerable and important species.”179

516. This view was supported by SE Link, which said it was ‘gravely concerned’180 by the proposal in the Bill.

517. In its written submission, SNH welcomed this change, saying that—

“We will also be the licensing authority for the new social, economic or environmental purpose to be inserted in to the Wildlife and Countryside Act 1981. We welcome this new purpose, which we have long called for, as it will remove an anomaly in species protection.”181

518. SNH confirmed its position when it appeared before the Committee, but added that the big challenge would come in drafting guidance and defining where the public interest began and ended. It believed that the licensing system would be both protective and proportionate.

519. The Committee notes the concerns expressed in evidence over the provision of the Bill for licenses to be available where a clear social, economic or environmental case could be demonstrated. However, the Committee notes that the Scottish Government’s rationale for this was to close a loophole between domestic and European law, which currently allows for different criteria to apply to different species.

520. The Committee is, therefore, broadly content with the provision, but draws the attention of the Scottish Government to the comments made by SNH regarding the ‘big challenge’ of drafting the guidance to ensure that it is clear and easy to follow.

Processing of licence applications and appeals

521. SNH told the Committee that it aims to process such applications within 20 working days, and that, in reality, 99% are processed in 10 working days. It noted that it is continuously examining ways of making the process as efficient as possible, and is currently considering the possibility of issuing multi-year, rather than annual, licences in certain circumstances. SNH is also encouraging people to prepare applications well in advance of any actual problem occurring, to help speed up the process.

522. SNH confirmed that there was currently no right of appeal against such applications being declined, although SNH did make efforts to explain fully to applicants why an application had been unsuccessful and also made all the relevant information publically available.

523. Professor Reid gave his view on whether there should be a right of appeal against refusal of such applications—

“If the expectation is that one will not get a licence, and so being allowed one is a bonus, it is arguable that there is less need for an appeal mechanism. If, however, your view is that the prohibition is deliberately broad and people expect that they will be allowed licences, an appeal provision is more appropriate. From a Human Rights Act 1998 point of view, would the decision to refuse a licence determine somebody's civil rights and liberties? I suspect that it would not, on the basis that if the general prohibition is acceptable, that is the starting point and any licence is an exception from it rather than an interference with rights.”182

524. On the issue of whether there should be a right of appeal against refusal to grant a species licence, the Committee notes and accepts comments made by Professor Colin Reid, who said that it could be argued that as licences were for otherwise prohibited activities there was probably no difficulty from an ECHR/’natural justice’ perspective.

Licences to control birds of prey

525. Alex Hogg, of the SGA, detailed the problem that buzzards pose for some game birds, and the discussions it has had with SNH on the issue—

“The law states that we should have a licence to protect livestock should serious damage be occurring. It has to be livestock—and we decided that a pheasant poult was livestock if it was in the pen or in close proximity to the pen.

When it came to triggering the licence, however, we could not decide what "serious damage" meant. We are still talking. In my experience, when we have tried every deterrent in the book to scare off buzzards—hanging up bags, putting wires across rides, spinning compact discs, playing radios and anything else that we might think of—they become, to use the only analogy that I can think of, like seagulls at a resort: they have no fear of people whatever. When we drive up to the pen, the buzzards will arrive on scene. When we try to feed the pheasants, the buzzards will sit there and, with the patience of a saint, they will drop down and kill a poult after waiting for an hour or so.”183

526. The current definition of livestock in the 1981 Act includes any animal that is kept for the provision or improvement of shooting or fishing, a position not supported by the Scottish Raptor Study Groups (SRSG)—

“[…] the definition should extend only to any animal kept for this purpose that is wholly confined, meaning in the case of a game bird before it is put out to a release pen or equivalent. Logically livestock should be seen as kept wholly or primarily for food; for sport shooting “livestock”, in this case game birds, are kept primarily for shooting and only secondarily for food. SRSGs advocate such an amendment in order to counter what they consider to be unjustified calls for licensed control of certain raptor species at game bird release pens.”184

527. SNH confirmed that the Bill made no changes to the ability to apply for a licence to control serious damage to livestock, and that livestock included birds such as grouse, pheasants and partridges reared in captivity and kept in release pens. The test was whether the damage was deemed as being “serious”, how that was measured, and what else could have been done to resolve the problem. A person may currently apply for a licence to control, say, buzzards causing problems at release pens. No change in the law was proposed or, in the view of SNH, required. But a clear and persuasive case must be made and a license would only be granted as a last resort, when all alternatives have been exhausted. SNH said it was not opposed to the control of, say, buzzards in this way, providing a sufficiently strong case had been made.

528. The Minister told the Committee that pheasants were considered livestock “as long as they are in and around the pen and near it.”185

529. The SGA argued that these licenses were virtually impossible to obtain, so much so that many no longer even tried, as it was well known that they would not be granted in any circumstance. It was, therefore, a theoretical licence only.

530. SNH told the Committee that it was not a question of “lowering the bar” that has been set, and said that adherence to the EU Birds Directive would prevent that in any case. The solution was to develop better guidance to assist those applying for such licences, to give examples of what a successful application would look like. SNH described this issue as “a work in progress” and suggested that only continued dialogue with land managers would lead to a resolution.

531. The Minister commented on the issue of licences being available to control protected birds—

“I took the view that the balance of public interest was not at present in favour of issuing licences for the control of birds of prey to protect non-native reared game birds […] Raven licences are issued at present, so in some respects that control is already happening. The concern tends mostly to be about one specific species, which is the buzzard. As far as I know there is no sense that the buzzard population could currently be regarded as being out of control, but these things always involve a balance. At some point in the future our skies may be so thronged with raptors of one type or another that we have to consider such an approach, but we are not there yet, and I suspect that we are a long way from it.”186

532. The Committee is content with the law as it stands, that licences are available only in exceptional circumstances to control species which are otherwise protected. The Committee notes that currently anyone seeking a licence must make a robust case and expects this will continue after implementation of this Bill.

533. The Committee notes the Ministers comments on the status of pheasants as livestock. The Committee would be grateful for further clarification as to the point at which pheasants cease to be deemed as livestock.

European Beaver

534. There are currently two species in Scotland which have been reintroduced under licence. These are European beavers, under the Scottish Beaver Trial, and sea eagles.

535. Beavers have been licensed for release as part of the Scottish Beaver Trial. As these animals are, according to the answer to a parliamentary question187 currently outwith their native range they are not afforded specific protection under the Habitats Directive. However, they would have a level of protection from shooting under rules relating to armed trespass under the Firearms Act 1968.

536. The Committee notes the anomaly that beavers are currently being released under licence in Scotland, but are not specifically a protected species and draws that to the attention of the Scottish Government.

Scottish black bee

537. Native British bees have become extremely endangered and it is understood that many of those that do remain have hybridised with non-native breeds. The Scottish black bee, apis mellifera mellifera, however is understood to survive in Colonsay and possibly other locations in Scotland. According to the answer to a parliamentary question, the Scottish black bee is currently classified as a "domesticated species" and so does not qualify for reserve status under current wildlife legislation.

538. A Scottish Government official confirmed that honeybees are “regarded as a farmed animal rather than a wild animal so they do not usually come within the ambit of the Wildlife and Countryside Act 1981”.188

539. The Committee asks the Scottish Government to give consideration to how to best protect the native Scottish black bee, given its current classification as a farmed creature. The Committee also asks the Scottish Government to examine whether such bees could be considered as wild creatures, in order to secure their genetic protection. The Committee also asks the Scottish Government to consider whether the Bill could be used imaginatively to secure greater options in providing further protection to populations in areas such as Colonsay.

Part 3: Deer

Background

540. Deer have been present in Scotland for 20,000 years and, in the last few hundred years, population numbers have fluctuated significantly. As forests were cleared across the country, and humans began to farm more intensively, deer populations shifted to where the forest and non-farmed land remained. Other factors affected the deer population, such as the extinction of the wolf in Scotland at the end of the 18th century, which helped increase the number of deer, and the introduction of greater numbers of sheep, which, combined with the changes in habitat, led to a nadir for the deer population. Numbers recovered after industrialisation, in the Victorian era, when shooting for sport became popular and a growth in numbers was encouraged to support this activity.

541. There are estimated to be up to 750,000 deer in Scotland. That number is made up by populations of four different species. Two species, red deer (Britain’s largest native land mammal) and roe deer, are native to Scotland and make up the majority of the total population figure. Estimated numbers are over 200,000 roe deer and between 300-500,000 red deer. The red deer is found predominantly in the north of Scotland, but significant populations can also be found in Argyll and the Trossachs and in Galloway. The smaller roe deer, which gathers in smaller numbers, is found across the country, and is increasingly being found in and around towns and cities.

542. Two further species, fallow and sika deer, have been introduced to Scotland through deliberate releases and escapes from country parks. Two other non-native species, muntjac and Chinese water deer, are found in England but not in Scotland, although there have been anecdotal accounts of muntjac deer being seen in Scotland.

543. Deer in Scotland are wild animals that can roam freely between forests, farms and estates and are a natural resource that is not owned by any individual or organisation. Deer only become someone’s property when they are captured or killed by persons entitled by law to do so – usually the owners of the land on which they are present, or people acting with their permission. In turn, landowners have a responsibility for the welfare of deer on their land, to manage the deer and their natural habitat appropriately.

544. Deer bring a number of economic, social and environmental benefits to Scotland, such as:

  • tourism – people coming to specifically see red deer in particular;
  • significant habitat and biodiversity benefits (such as grazing) where appropriate numbers exist; and
  • employment, through deer stalking, deer management and the venison industry).

545. They can also bring significant economic, social and environmental costs, such as:

  • damage to agriculture and forestry and the need to protect from possible damage (erecting fencing, re-planting of crops and trees);
  • damage to natural heritage;
  • damage to upland soils causing carbon emissions; and
  • public health and safety issues, such as road accidents, and ensuring animal welfare concerns are properly taken in to account.

546. With no natural predators remaining in Scotland, deer populations are managed to balance the benefits and costs detailed above and protect different objectives. However, different people and organisations have a number of conflicting objectives in relation to managing deer numbers, such as establishing an ideal sporting population and protecting woodland and crops.

547. A collaborative approach to deer management was developed several decades ago with the formation of Deer Management Groups (DMGs), of which there are now more than 70 in Scotland.

548. DMGs are voluntary and cover areas where there are distinct herds of deer. The area they cover may range in size from 20,000 to 200,000 hectares. They can include as few as 3 or as many as 30 different landholdings. Groups are often subdivided into sub-groups for specific purposes.

What the Bill proposes

549. Part 3 of the Bill would amend the Deer (Scotland) Act 1996 (c.58) (“the 1996 Act”). Part 1 of that Act placed a duty on the Deer Commission Scotland (DCS) (the functions of which were transferred to SNH under the Public Services Reform (Scotland) Act 2010) to further the conservation, control and sustainable management of deer.

550. Part 2 of the 1996 Act provides for the setting of close seasons and creates mechanisms for the DCS (now SNH) to work with landowners in managing appropriate deer numbers.

551. Part 3 makes it an offence to kill deer without the legal right to do so. Part 4 regulates dealing in venison and contains enforcement provisions.

552. The Bill amends the 1996 Act to alter the provisions that allow certain occupiers of land to shoot deer during close seasons. It requires SNH to prepare a code of practice in relation to deer management. It revises the purposes for and circumstances in which SNH can exercise powers in relation to control agreements, control schemes and emergency measures to manage deer. It also enables Ministers to make provision, by order, to require persons who shoot deer to be registered as competent to do so. Such orders may also be used to make consequential changes to the arrangements for collecting data about the number of deer killed (‘cull returns’).

Duty to manage deer sustainably

553. SNH told the Committee, “no one owns wild deer in Scotland; they are a common resource and must be managed as a shared resource”.189 It is often said that deer should be managed sustainably and in the public interest but a definition and shared understanding of these terms are difficult to arrive at. Robbie Kernahan of SNH said—

“[..] it is also about trying to keep one eye on the future to see what else deer will have an impact on that may be in the public interest, such as carbon soils and carbon sequestration. It is about how well we equip ourselves legislatively to take action, and not only how we currently define public interest but how we might in the future.”190

554. As with other issues in the Bill, there is a fundamental split about whether sustainable deer management should remain on a voluntary basis or whether the Bill should introduce a duty on landowners. Opinion differs on whether the Bill represents an acceptable compromise or is a missed opportunity. Submissions also question how to define terms such as ‘sustainable’ or the ‘public interest’. It is clear that these terms mean different things to different people and there will need to be a common understanding of these terms for deer management to be successful.

555. Professor John Milne, ex-Chairman of the DCS, told the Committee that deer management needed to be thought of in terms of impacts rather than simply numbers. Scotland is a natural habitat for deer, the consequence of which was the proliferation of deer in some areas, and the inevitable resulting damage. The nature of this damage changes with time. For example, the number of cases of deer causing agricultural damage has declined in the last ten years, whereas cases of deer causing peat damage are increasing, or better understood. He said it was important to balance all talks of damage and control by keeping in mind the enormous positive benefits deer has, as an iconic animal in Scotland, on tourism and culture, as well as being a sporting resource of great benefit to the Scottish economy.

556. Dr Justin Irvine from the Macaulay Land Use Research Institute, also stressed the need to keep in mind the effect other changes can have, such as reducing sheep numbers, or milder winters leading to higher survival rates.

557. The consultation carried out by the Scottish Government contained a proposal that a duty be placed on landowners and managers to manage deer sustainably. However, due to disagreement in responses to the consultation, together with a concern that such a duty could contravene the European Convention on Human Rights (ECHR) this duty does not appear on the face of the Bill. Rather the Bill seeks to bring about a de-facto duty by other legislative means, and through a proposed code of practice.

558. Scottish Government officials explained the reasons behind the Bill not containing a duty to manage deer sustainably—

“[…] the point is not that we do not want deer to be managed sustainably; rather, it is that, on reflection, we consider that a legal duty in the bill to manage deer sustainably basically would not work. It would be insufficiently precise and would not focus on particular individuals. It would not be sufficiently clear in telling people what it meant.”191

559. The Bill team’s legal adviser explained some of the legal difficulties in pursuing a duty on the face of the Bill, essentially that it would be unenforceable—

“The essential problem with the duty approach is that it applies equally to private and public bodies—perhaps more to private persons and bodies than to public bodies. If general duties are included in statute for public bodies, there is a reasonable expectation that they will simply be observed; with private persons, that really needs to be backed up with criminal sanctions to make the duties have any force or teeth. It would be unreasonably vague to impose on individuals a general duty of sustainable deer management that was backed up by criminal sanctions. That would not meet tests under article 7 of the European convention on human rights.”192

560. Lloyd Austin of SE Link commented on the Scottish Government’s ECHR concerns—

“What we propose is that the solution is not to say, "We won't have a duty, then," but to make the duty clear, and that means having a statutory form of planning system. We might encourage deer management groups to produce clear management plans, but if that does not happen, we believe that SNH should have the power to step in and produce plans. Alternatively, you might take the approach that as public bodies determine how to plan for natural resources throughout the country—for example, SEPA produces flood management plans and river basin management plans and local authorities produce development plans—SNH should take the lead in producing deer management plans, but that it should do so in a participative way.”193

561. SNH outlined its position on whether the Bill should contain a duty on deer management—

“[…] in our submission, the Deer Commission—supported by SNH and the Forestry Commission—recognised that with the right to manage land comes a certain amount of responsibility. At the moment, the responsibility sits on SNH to manage deer or to co-ordinate the management of deer. We thought it only appropriate that that duty should be shared among those who have the rights to take deer. We recognise the difficulty of defining sustainability in legislative terms. We thought that that would be supported and underpinned by a code, which would have a lot of stakeholder buy-in.”194

562. Finlay Clark, of the ADMG, told the Committee that the principle of a duty was already well established—

“I do not know of one landowner or deer manager—or anyone else who is involved in the management of deer—who does not believe that they have an absolute duty to deliver good, proper and sustainable deer management. I do not know anybody who disregards that absolute duty.”195

563. The Minister told the Committee that if the voluntary measures provided for in the Bill ultimately were not successful, future administrations would need to consider the matter again.

564. The deer aspects of the Bill are those that were most changed as a result of the consultation the Scottish Government conducted on the Bill. It appears to the Committee that the Government did indeed listen to concerns expressed in consultation responses from a large number of stakeholders and that the Bill represents an acceptable compromise.

Deer Management Groups

565. One of the central pillars of the current, voluntary, approach to deer management across Scotland is the DMG system. As explained above, participation in DMGs by landowners is encouraged but ultimately voluntary and although DMGs can make plans and take decisions, there is no legal requirement for landowners to abide by such plans and decisions. However, SNH does have a backstop power, to issue a “control order”, discussed later in this section.

566. Part of the argument surrounding the possibility of the Bill containing provisions to impose a duty on landowners to manage deer sustainably, included examination of the possibility of giving greater strength, or ‘teeth’, to the DMG system by introducing duties on landowners to participate in the relevant DMG and abide by plans and decisions made by DMGs.

567. The Committee heard conflicting evidence concerning the success of DMGs. SNH noted that DMGs had originally been established to manage a common sporting resource and had struggled in recent times to deal with increasingly complex land management methods. This, in the view of SNH, had placed a great deal of pressure on the DMGs—

“When putting together the advice that it submitted to ministers, the Deer Commission for Scotland recognised that voluntary deer management must be at the heart of deer management. However, the expectations on voluntary deer management groups to deliver a host of public benefits are probably greater now than they have been at any time since the groups were first put together 30 years ago.”196

568. It was noted that where DMGs gathered those with common objectives, they tended to work very productively. However, DMGs which had members representing conflicting objectives, sometime including conflicting private interests, struggled to reconcile that difference. This highlighted their lack of enforcement powers.

569. Professor John Milne, the ex-Chairman of the DCS, argued that DMGs were the right structure and that the concept of local decision making by local people with expertise was sound, but that DMGs were not currently working as well as they ought to because they did not have adequate powers and could not compel all relevant landowners to be involved—

“[…] nothing in law says that individuals have to take part in a group. If they do take part, they do not have to follow anything that the group agrees. The group itself has no teeth. Many chairmen have approached me and told me that they cannot get the group to work because one landowner will not do one thing and another will not do something else.”197

570. Professor Milne also noted that DMGs lacked a shared understanding of what public objectives were and had no effective mechanism for resolving disputes He was of the view that DMGs were becoming poorer at tackling deer management issues, rather than showing signs of improvement.

Next

Footnotes:

1 John Scott MSP is content with the status quo on single witness evidence.

2 John Scott MSP dissents from this paragraph.

3 John Scott MSP dissents from this paragraph.

4 John Scott MSP dissents from the second sentence of this paragraph.

5 John Scott MSP dissents from this paragraph. Maureen Watt MSP dissents from all but the first two sentences.

6 John Scott MSP dissents from this paragraph.

7 John Scott MSP dissents from this view.

8 John Scott MSP dissents from this paragraph.

9Wildlife and Natural Environment (Scotland) Bill. Available at: http://www.scottish.parliament.uk/s3/bills/52-WildNatEnv/b52s3-introd.pdf

10 Wildlife and Countryside Act 1981 (c.69). Available at: http://www.legislation.gov.uk/ukpga/1981/69

11 Wildlife and Natural Environment (Scotland) Bill. Explanatory Notes. Available at: http://www.scottish.parliament.uk/s3/bills/52-WildNatEnv/b52s3-introd-ex.pdf

12 Wildlife and Natural Environment (Scotland) Bill. Policy Memorandum. Available at: http://www.scottish.parliament.uk/s3/bills/52-WildNatEnv/b52s3-introd-pm.pdf

13 Scottish Parliament (2009). Standing Orders, 3rd Edition (4th Revision). Available at: http://www.scottish.parliament.uk/business/so/sto-c.htm

14 Wildlife and Natural Environment (Scotland) Bill. Delegated Powers Memorandum. Available at: http://www.scottish.parliament.uk/s3/bills/52-WildNatEnv/b52s3-introd-dpm.pdf

15 See Annexes A and B.

16 Rural Affairs and Environment Committee, Further information. Available at: http://www.scottish.parliament.uk/s3/committees/rae/bills/WANE/writtensubmissions.htm

17 Scottish Government (2009). Wildlife and Natural Environment Bill – Consultation Document. Available at: http://www.scotland.gov.uk/Publications/2009/06/17133414/0 [Accessed 14 October 2010].

18 Scottish Government (2010). Consultation Analysis and Research Findings. Available at: http://www.scotland.gov.uk/Topics/Environment/Wildlife-Habitats/WildNatEnvBill/Analysis [Accessed 27 October 2010].

19 Game and Wildlife Conservation Trust. Written submission to the Rural Affairs and Environment Committee.

20 Royal Society for the Protection of Birds Scotland. Written submission to the Rural Affairs and Environment Committee.

21 Royal Society for the Protection of Birds Scotland. Written submission to the Rural Affairs and Environment Committee.

22 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 6 October 2010, Col 3222.

23 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 3 November 2010, Col 3313.

24 Scottish Wildlife Trust. Written submission to the Rural Affairs and Environment Committee.

25 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 15 September 2010, Cols 3076-3077.

26 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 29 September 2010, Col 3151.

27 Scottish Parliament, Rural Affairs and Environment Committee. Official Report, 3 November 2010, Col 3316.

28 Plantlife. Written submission to the Rural Affairs and Environment Committee.

29 Scottish Executive (2004). Scotland's Biodiversity: It's in Your Hands. Available at: http://www.scotland.gov.uk/Topics/Environment/Wildlife-Habitats/16118/BiodiversityStrategy [Accessed 27 October 2010].

30 Scottish Wildlife Trust. Written submission to the Rural Affairs and Environment Committee.

31 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 3 November 2010, Col 3316.

32 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 6 October 2010, Col 3221.

33 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 6 October 2010, Col 3222.

34 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 6 October 2010, Col 3222-3223.

35 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 15 September 2010, Col 3278-3079.

36 Sheriff TAK Drummond. Supplementary written submission to the Rural Affairs and Environment Committee.

37 Codification traditionally means re-enunciating in statute the law found in a particular area where that law is either common law or a mixture of common law and statutes. Consolidation means rationalising various statues into one Act.

38 Scottish Parliament Rural Affairs and Environment Committee, Official Report, 6 October 2010, Col 3222.

39 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 3 November 2010, Col 3314.

40 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 6 October 2010, Col 3223.

41 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 3 November 2010, Col 3315.

42 The Crown Estate. Written submission to the Rural Affairs and Environment Committee.

43 Hare Preservation Trust. Written submission to the Rural Affairs and Environment Committee.

44 The League Against Cruel Sports. Written submission to the Rural Affairs and Environment Committee.

45 Scottish Rural Property and Business Association. Written submission to the Rural Affairs and Environment Committee.

46 Game and Wildlife Conservation Trust. Written submission to the Rural Affairs and Environment Committee.

47 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 2972.

48 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 15 September 2010, Col 3047.

49 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 15 September 2010, Col 3048.

50 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 2967.

51 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 3006.

52 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 2967.

53 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 3006.

54 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 23 June 2010, Col 2926.

55 Policy Memorandum, paragraph 39.

56 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 2968.

57 Scottish Association of Country Sports. Written submission to the Rural Affairs and Environment Committee.

58 The Game and Wildlife Conservation Trust, Scottish Gamekeepers Association, Scottish Rural Property and Business Association, Scottish Association of Country Sports and the Scottish Countryside Alliance.

59 Scottish Gamekeepers Association. Written submission to the Rural Affairs and Environment Committee.

60 Game and Wildlife Conservation Trust. Written submission to the Rural Affairs and Environment Committee.

61 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 3 November 2010, Col 3346.

62 Agriculture (Scotland) Act 1948. Available at: http://www.legislation.gov.uk/ukpga/Geo6/11-12/45
[Accessed 27 October 2010].

63 The British Association for Shooting and Conservation, Game and Wildlife Conservation Trust, Scottish Rural Property and Business Association, Scottish Association for Country Sports, Scottish Countryside Alliance and the Scottish Hawk Board.

64 Hare Preservation Trust. Written submission to the Rural Affairs and Environment Committee.

65 European Council Directive 92/43/EEC on the Conservation of natural habitats and of wild fauna and flora (Habitats Directive). Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31992L0043:EN:HTML [Accessed on 27 October 2010].

66 Kinrade, V., Ewald, J., Smith, A., Newey, S., Iason, G., Thirgood, S. & Raynor, R. (2008).

The distribution of Mountain Hare (Lepus timidus) in Scotland (2006/07). Scottish Natural

Heritage Commissioned Report No.278 (ROAME No. R07AC308). Available at: http://www.snh.org.uk/pdfs/publications/commissioned_reports/Report%20No278.pdf [Accessed on 27 October 2010].

67 Game and Wildlife Conservation Trust. Supplementary written evidence to the Rural Affairs and Environment Committee.

68 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 2973.

69 Scottish Hawk Board. Written submission to the Rural Affairs and Environment Committee.

70 PAW Scotland, paper for item 5 of its meeting on 25 May 2010, available at: www.scotland.gov.uk/Resource/Doc/921/0105790.pdf [accessed on 2 November 2010].

71 Scottish Government (2008). Scottish Wildlife Crime Reduction Strategy. Available at: http://www.scotland.gov.uk/Topics/Environment/Wildlife-Habitats/paw-scotland/Resources/Reports/WildlifeCrimeStrategy [accessed 2 November 2010].

72 Scottish Parliament Rural Affairs and Environment Committee, Official Report, 3 November 2010, Col 3312.

73 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 23 June 2010, Cols 2929-2930.

74 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 2968-2969.

75 Scottish Wildlife Trust. Written submission to the Rural Affairs and Environment Committee.

76 The Law Society of Scotland. Written submission to the Rural Affairs and Environment Committee.

77 Professor Colin Reid. Written submission to the Rural Affairs and Environment Committee.

78 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 29 September 2010, Col 3131.

79 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 3008.

80 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 15 September 2010, Col 3101.

81 Land Reform (Scotland) Act 2003. Available at: http://www.legislation.gov.uk/asp/2003/2/contents
[Accessed 27 October 2010].

82 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 3 November 2010, Col 3329.

83 John Scott MSP is content with the status quo on single witness evidence.

84 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 2969.

85 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 2970.

86 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 15 September 2010, Col 3082.

87 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 3082.

88 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 3082.

89 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 3 November 2010, Col 3317.

90 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 3083.

91 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 15 September 2010, Col 3085.

92 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 15 September 2010, Col 3089.

93 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 3 November 2010, Col 3318.

94 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 15 September 2010, Col 3080.

95 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 15 September 2010, Col 3090.

96 Scottish Rural Property and Business Association. Supplementary written evidence to the Rural Affairs and
Environment Committee.

97 John Scott MSP dissents from this paragraph.

98 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 23 June 2010, Col 2930.

99 Scottish Estates Business Group. Written submission to the Rural Affairs and Environment Committee.

100 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 29 September 2010, Cols 3148-3149.

101 Scottish Gamekeepers Association. Supplementary written evidence to the Rural Affairs and Environment Committee.

102 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 15 September 2010, Col 3092.

103 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 2997.

104 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 15 September 2010, Cols 3100-3101.

105 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 29 September 2010, Col 3129.

106 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 2999.

107 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 23 June 2010, Cols 2930-2931.

108 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 15 September 2010, Col 3086.

109 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 15 September 2010, Cols 3103-3104.

110 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 3027.

111 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 15 September 2010, Col 3107.

112 John Scott MSP dissents from this paragraph.

113 John Scott MSP dissents from the second sentence of this paragraph.

114 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 29 September 2010, Col 3149.

115 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 29 September 2010, Col 3150.

116 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Cols 2998-2999.

117 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 3028.

118 Scottish Parliament Rural Affairs and Environment Committee, Official Report, 6 October 2010, Col 3232.

119 John Scott MSP dissents from this paragraph. Maureen Watt MSP dissents from all but the first two sentences.

120 Sheriff T A K Drummond, written submission to the Rural Affairs and Environment Committee.

121 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 15 September 2010, Cols 3105-3106.

122 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Cols 3031-3032.

123 Scottish Gamekeepers Association. Written submission to the Rural Affairs and Environment Committee.

124 John Scott MSP dissents from this paragraph.

125 The Royal Society for the Protection of Birds Scotland. Written submission to the Rural Affairs and Environment Committee.

126 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 29 September 2010, Col 3148.

127 Scottish Parliament. Official Report, 20 February 2008, Cols 6079-6090.

128 The British Association for Shooting and Conservation, Game and Wildlife Conservation Trust, Scottish Estates Business Group, Scottish Gamekeepers Association and the Scottish Rural Property and Business Association.

129 Advocates for Animals, Scottish Society for the Prevention of Cruelty to Animals, Hare Preservation Trust, Scottish Badgers, Scottish Wildlife Trust and the League Against Cruel Sports.

130 Hewson, R. (1984). Scavenging and predation upon sheep and lambs in West Scotland. Journal of Applied Ecology,
21: 843-868.

Hewson, R. (1990). Victim of Myth - Predation upon lambs by foxes in the absence of control. A report to the League
Against Cruel Sports.

Macdonald, D.W., Tattersall, F.H., Johnson, P.J., Carbone, C., Reynolds, J. C., Langbein, J., Rushton, S.P. and Shirley, M.D.F. (2000). Final Report (Contracts 5 & 6) to the Committee of Inquiry into hunting with dogs in England and Wales.
The Stationary Office, London.

131 Note by Dr G Hartley and S Campbell, Science and Advice for Scottish Agriculture agency. Available at: http://www.scottish.parliament.uk/s3/committees/rae/bills/WANE/documents/SASAbriefanalysisofimpactoffoxe
sonlivestock.pdf
[Accessed 27 October 2010].

132 Note by Dr G Hartley and S Campbell, Science and Advice for Scottish Agriculture agency. Available at: http://www.scottish.parliament.uk/s3/committees/rae/bills/WANE/documents/SASAbriefanalysisofimpactoffoxesonlive
stock.pdf
[Accessed 27 October 2010].

133 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 3010.

134 Scottish Gamekeepers Association, Game and Wildlife Conservation Trust, Scottish Rural Property and Business Association and Scottish Estates Business Group.

135 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 2974.

136 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 2980.

137 International Organization for Standardization (ISO)

138 OneKind. Supplementary submission to the Rural Affairs and Environment Committee.

139 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 6 October 2010, Col 3235.

140 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 2975.

141 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Cols 2981-2982.

142 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 2982.

143 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Cols 2976-2977.

144 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 6 October 2010, Col 3235.

145 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 6 October 2010, Col 3234.

146 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 6 October 2010, Col 3235.

147 Veterinary Association of Wildlife Management. Letter to the Scottish Government dated July 2009.

148 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Cols 3012.

149 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 23 June 2010, Col 2941.

150 Loch Lomond and the Trossachs National Park Authority, Cairngorms National Park Authority, Scottish Crofting Foundation, Veterinary Association for Wildlife Management, Scottish Countryside Alliance, Forestry Commission Scotland, Scottish Natural Heritage, British Pest Control Association, NFU Scotland, Scottish Estates Business Group, The Heather Trust, The SRPBA and the National Sheep Association.

151 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 3 November 2010, Col 3340.

152 Game and Wildlife Conservation Trust. Written submission to the Rural Affairs and Environment Committee.

153 Grigor and Young. Written submission to the Rural Affairs and Environment Committee.

154 OneKind. Supplementary written submission to the Rural Affairs and Environment Committee.

155 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 29 September 2010, Col 3132.

156 Policy Memorandum, paragraph 79.

157 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 3015.

158 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 3057.

159 Scottish Natural Heritage. Written submission to the Rural Affairs and Environment Committee.

160 Plantlife. Written submission to the Rural Affairs and Environment Committee.

161 Draft code of practice on non-native and invasive non-native species (Scottish Government). Available at: http://www.scottish.parliament.uk/s3/committees/rae/bills/WANE/documents/DraftINNSCodeofPractice.pdf
[accessed on 3 November 2010].

162 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 23 June 2010, Col 2942.

163 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 29 September 2010, Col 3142.

164 Scottish Countryside Alliance. Written submission to the Rural Affairs and Environment Committee.

165 Scottish Rural Property and Business Association. Written submission to the Rural Affairs and Environment
Committee.

166 The Royal Horticultural Society. Written submission to the Rural Affairs and Environment Committee.

167 Plantlife, Professor Colin Reid, RSPB Scotland, SE Link and the SWT.

168 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 15 September 2010, Cols 3062-3063.

169 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 29 September 2010, Col 3142.

170 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 29 September 2010, Col 3142.

171 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 15 September 2010, Col 3055.

172 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 15 September 2010, Col 3060.

173 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 29 September 2010, Col 3140.

174 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 29 September 2010, Col 3140.

175 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 29 September 2010, Col 3140.

176 372. The Association of Shellfish Growers and the Shellfish Association of Great Britain. Written submissions to the Rural Affairs and Environment Committee.

177 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 2992.

178 Scottish Society for the Prevention of Cruelty to Animals, Royal Society for the Protection of Birds Scotland, Scottish Environment LINK, Scottish Wildlife Trust and the Scottish Environment Protection Agency.

179 Scottish Wildlife Trust. Written submission to the Rural Affairs and Environment Committee.

180 Scottish Environment Link. Written submission to the Rural Affairs and Environment Committee.

181 Scottish Natural Heritage. Written submission to the Rural Affairs and Environment Committee.

182 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 6 October 2010, Col 3238.

183 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 7 September 2010, Col 2991.

184 Scottish Raptor Study Groups. Written submission to the Rural Affairs and Environment Committee.

185 Scottish Parliament Rural Affairs and Environment Committee, Official Report, 3 November 2010, Cols 3345.

186 Scottish Parliament Rural Affairs and Environment Committee, Official Report, 3 November 2010, Cols 3330-3331.

187 S3W-37195, Peter Peacock MSP: To ask the Scottish Executive what legal protection other than that afforded by
the Animal Health and Welfare (Scotland) Act 2006 and the Wild Mammals (Protection) Act 1996 extends to animal
species not specified as European protected species under Schedule 2 of the Conservation (Natural Habitats, &c.)
Regulations 1994, which have been reintroduced to Scotland under licence issued by the Scottish Ministers.

188 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 23 June 2010, Col 2944.

189 Scottish Natural Heritage. Written submission to the Rural Affairs and Environment Committee.

190 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 29 September 2010, Col 3121.

191 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 23 June 2010, Col 2949.

192 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 23 June 2010, Col 2951.

193 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 15 September 2010, Col 3072.

194 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 29 September 2010, Col 3121.

195 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 29 September 2010, Col 3166.

196 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 29 September 2010, Col 3119.

197 Scottish Parliament Rural Affairs and Environment Committee. Official Report, 29 September 2010, Col 3155.