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SECTION 2 - DEER

PART I - BACKGROUND INFORMATION

Deer in Scotland

Deer are an iconic species of Scotland, and a key asset of the natural heritage, bringing benefits in terms of tourism, sport and food. However, their distribution and numbers have the potential to impact adversely on natural habitats, public safety and the economic value of woodlands and agricultural crops. With no natural predators in Scotland, wild deer populations will tend to increase in numbers and range, because food and other resources are not limiting. Deer therefore need to be managed because of their interaction with other land-use and management objectives.

The legal framework for wild deer management under Scots law flows from the principle that wild deer are not 'owned', but the right to take or kill rests with the owner or occupier of the land. Deer management is carried out by a range of land managers on estates, forests, farms, crofts and publicly-owned land with costs borne either directly or through income mainly derived from recreational sport stalking.

Review of the Deer (Scotland) Act 1996

The consultation on the proposed merger of Scottish Natural Heritage ( SNH) and Deer Commission Scotland ( DCS) revealed a broad consensus that the Deer (Scotland) Act 1996 is becoming out of date and would benefit from updating. In June 2008, the then Minister for Environment, Michael Russell MSP, asked DCS to review the operation of the 1996 Act (which is based largely on its predecessor the Deer (Scotland) Act 1959) and make recommendations for reform. Following discussion with a range of stakeholders, and support for the principles from SNH and Forestry Commission Scotland ( FCS) as the other public agencies with a strong interest in deer management, DCS submitted proposals for reform to Ministers in January 2009. This advice informs this section of the consultation document. Discussions have also been held with a range of deer stakeholders, and issues arising from those discussions are reflected in this section.

Rationale for considering legislative reform

Managing wild deer can impact on, and contribute to, a wide range of public policy objectives relating to rural economic development, natural heritage, environmental quality, river catchment management, climate change, tourism, transport, public health, public safety and well-being, public access, and protection of animal welfare. Deer are also managed for private interests, including (separately or in combination) for sport, conservation and to protect agricultural or forestry crops. Deer also require to be managed within urban and peri-urban environments, where increasing numbers of roe deer in these areas have implications for road traffic accidents, damage to property and deer welfare. Recent figures ¹ show that deer management contributes £105 million to the economy, supporting over 2,500 full-time equivalent jobs, often in economically fragile rural areas. The PACEC report also states that deer are unusual in the sense that they are viewed both as an asset and as a species that needs to be kept under control; and that management for control and for sport largely go hand in hand. The report noted that wild venison production (some 3,500 tonnes of meat annually) is generally a by-product of deer management, although it produces a significant income stream.

DCS' advice to Ministers sets out the view that the balance of public interests in deer management has changed over time, and is likely to continue to change as, for example, moves to a low carbon economy require the development of more tree cover and also require that carbon-rich soils are protected from damage. The main principles underpinning the 1996 Act and its predecessors were the balancing of sporting interests with those of agriculture and forestry, and now the environment, public safety and the welfare of wild deer require to be taken into account more fully in deer management decision-making.

There are therefore a number of key drivers for reforming the current legislative framework, including:

• a more complex and diverse pattern of objectives of landowners and land use, and that range is likely to increase as society requires its land to deliver more;
• a more diverse range of private objectives of owners and occupiers of land, including more widespread community, NGO and non-sporting interests;
• dynamic changes in the balance of land use, for example the planned expansion of forestry and a reduction in hill sheep numbers;
• a need to enhance the mechanisms for tackling deer impacts on the natural heritage; and
• a need for better mechanisms to deliver local deer management and deer welfare.

Scottish Government objectives

The Scottish Government's objectives are:

• to modernise the legislative framework for managing deer;
• to develop a system that delivers public benefits in environmental management as well as a robust and sustainable recreational stalking and venison industry;
• to put in place arrangements to deal with urban deer; and
• to ensure the highest standards of deer welfare.

PART II - OPTIONS FOR LEGISLATIVE REFORM

The Scottish Government believes that it is appropriate to consider modernising the Deer (Scotland) Act 1996 to ensure that the legislative framework underpinning deer management in Scotland is fit for purpose. In this section of the consultation document we set out proposals for change and the rationale for them. We ask specific questions about the proposals, and we would welcome the views of all those with an interest in deer management.

Proposals for reform and possible alternatives

The proposals for reform focus on five key issues of deer management :

• (i) how collaborative deer management is best delivered locally
• (ii) competence
• (iii) Close Seasons
• (iv) consequential measures
• (v) data collection.

Collaborative Deer management

The current position

The legal framework for wild deer management in Scotland flows from the principle that wild deer are not 'owned', but the right to take or kill rests with the owner or occupier of the land. Apart from restrictions on when deer may be taken or killed, and the means by which that may be done, few other obligations are placed on landowners about how they should manage deer.

DCS has a duty to further the conservation, control and sustainable management of deer and is required to keep deer welfare under review. The 1996 Act provides a number of tools by which DCS can discharge its functions. DCS may institute control agreements (section 7 of the 1996 Act) and control schemes (section 8 of the 1996 Act) in particular areas where deer are causing damage to forestry, agriculture, the natural heritage or where they have become a danger to public safety. These powers are designed to encourage or compel land managers to take appropriate action.

Control agreements have been introduced where deer are causing damage to natural heritage on designated sites, and to prevent damage to forestry and agriculture. Control schemes can be made by DCS (subject to confirmation by Scottish Ministers), but can only be put in place where a control agreement has not worked or where voluntary agreement has proved impossible. Owners and occupiers have to comply with a control scheme, and failure to do so is an offence, and DCS can recover the costs involved in their implementation. Control schemes have never been used, and are generally viewed as being overly complex, open to challenge from owners and occupiers, and therefore difficult to apply.

In practice, the principal collaborative mechanism for the management of red deer in the uplands in Scotland is Deer Management Groups ( DMGs). These groups are non-statutory, and are a voluntary mechanism by which local land managers come together to manage deer in specific geographic areas. There are currently around 55 DMGs in Scotland, covering most of the area of red deer range in the uplands but little of the area of the lowlands where roe deer predominate. Whilst these arrangements have been effective in some areas of the country where there are similar private objectives amongst land managers, they have proved less suitable in their current form to address or resolve conflicting objectives or to deliver multiple public benefits.

Proposals for reform

One of the potential reforms seeks to deliver a better balance between the rights enjoyed by landowners in relation to deer, and the responsibilities that should accompany those rights. In general terms, deer management should continue to be based on voluntary mechanisms in the first instance, but where voluntary deer management structures fail, there must be a credible and effective statutory backstop to ensure deer are managed in the public interest. In this context, the public interest may include rural economic development, environmental quality, climate change, tourism, transport, public health, public safety and well-being, public access, and protection of animal welfare.

Recommendations are in three key areas, seeking to put in place a more flexible and devolved system that balances a wider range of public and private interests, and does not rely on the current requirement to demonstrate a risk of damage or injury:

(a) Rights and responsibilities in relation to deer

• the creation of a statutory duty on landowners to manage deer sustainably, supplemented by a statutory Code of Practice (which would be subject to separate consultation in due course) setting out the requirements of local collaborative deer management

Q1A. What is your view on the proposal that the right to take or kill deer should be balanced by a statutory responsibility on landowners to manage them sustainably?

Q1B. Is there a better way in which landowners' responsibility to manage deer might be framed?

(b) Collaborative Deer Management Structures

• the expectation is that local collaborative deer management will continue to be undertaken in the first instance on a voluntary basis, with landowners and other interested parties coming together in the form of DMGs to jointly give effect to the duty to manage deer sustainably in their locality
• a new power would be created to ensure that where the voluntary approach to DMGs fails, DCS could compel a group of landowners to develop and implement a deer management plan to protect the public interest; this power would be supported by offences relating to non-compliance and measures for DCS to enforce the plan and recover the costs, similar to the current provisions in relation to Control Schemes in the 1996 Act

Q2. What is your view on whether collaborative deer management structures should continue to be voluntary in the first instance?

Q3. Do you consider that there is a need to ensure there is wider (e.g. community) engagement in deer management? If so, how?

Q4. What is your view on the proposal that land managers should be required to prepare and implement a statutory Deer Management Plan where voluntary deer management structures are failing to deliver in the public interest?

Q5. What is your view on the proposal that failure to comply with a statutory Deer Management Plan should be an offence, and that DCS should be able to recover costs from landowners or occupiers where it has to take action to enforce the plan?

(c) Intervention to address local deer management issues

• existing provision enabling DCS to appoint advisory panels, which are different from DMGs in that they are established to deal with short-term localised issues, such as road safety, would be extended to allow DCS to place a duty on an advisory panel to prepare and implement a management plan within a specified area. This would be a useful tool to address local deer issues, particularly in some woodland situations and in and around towns where voluntary DMGs do not exist and are unlikely to emerge of their own accord.
• existing emergency powers of intervention when no other powers are adequate (i.e. if a situation arose, for example, which required DCS to take immediate action to reduce deer numbers in a specific locality) would be extended from taking action in situations where deer are causing serious damage to woodland, agriculture and the natural heritage or a danger to public safety, to include taking action to protect other public interests such as deer welfare or rural economic development.

Q6. What is your view on the proposal that DCS' existing powers to constitute Deer Panels should be extended to enable DCS to require the Deer Panel to prepare and implement a Deer Management Plan, where a particular local deer management issue arises?

Q7. What is your view on the proposal that DCS' current powers to intervene in deer management should be extended to a wider range of circumstances (set out above) than is currently the case?

Competence

The current position

Beyond the anti-cruelty provisions in the Wildlife and Countryside Act 1981 and the Wild Mammals (Protection) Act 1996, statutory protection for the welfare of deer relies largely on Close Seasons. There is a system of authorisations for specific activities such as shooting deer out of season and night shooting linked to a fit and competent register maintained by DCS. However, this register does not cover the full range of activities which require authorisation, for example driving deer or taking deer for scientific purposes. In addition, the register does not cover the full range of individuals shooting deer out of season, particularly owner occupiers of certain types of land (improved agricultural or enclosed woodland). Around 10% of the total deer culled in Scotland (around 15,000 deer) are culled during the Close Seasons. More than 85% of these deer are killed under owner occupier exemptions, and less than 15% (2,000 deer) under authorisation through the fit and competent register.

Progress has been made on developing skills and training within the deer sector in recent years on a voluntary basis. A suite of 74 Best Practice Guides, developed by DCS jointly with the deer sector, is now in place and there has been continued skills improvement through training and the voluntary uptake of deer management qualifications like the Deer Stalking Certificate and through best practice events.

However, concerns have been expressed by the deer sector, the public and reports made to the police and DCS about specific instances where deer welfare may have been compromised, and there is a need to satisfy the public that appropriate oversight and safeguards are in place to ensure the welfare of deer is protected.

Proposals for reform

In view of the public interests of deer welfare, public safety and food safety, and to instil greater public confidence in the deer sector, there is an argument that all those who shoot deer should be required to demonstrate practical deer skills and knowledge through a variety of mechanisms developed by the deer sector. While progress has been made through the current voluntary approach, it can be argued that stronger measures are needed to encourage and ultimately enforce higher standards for all who shoot deer.

To achieve this, the proposals are:

• that all those who shoot deer should be required to demonstrate practical skills and knowledge in public safety, deer welfare and food safety, backed by a Code of Practice. The existing DCS fit and competent register would be expanded to include those who have demonstrated the skills and knowledge required; it would be a new offence for anyone to take or kill deer without being on the register
• exemptions from the requirement to demonstrate practical skills and knowledge should be provided for those people shooting deer under supervision of a person on the register, and for those holding appropriate foreign awards or licences

Q8. What is your view on the proposal that further action is required to improve the skills and competence of those involved in taking/killing deer?

Q9A. Do you consider that everyone who shoots deer unsupervised in Scotland should first have to demonstrate that they have skills and knowledge in public safety, deer welfare and food safety? Yes/no/don't know.

Q9B. If not, do you consider there is a better way to safeguard the welfare of deer than requiring stalkers to demonstrate a minimum level of skills and knowledge?

Q10. What is your view on the proposal that it should be an offence to take/kill deer unless you have demonstrated skills and knowledge, or are supervised by someone who is on the register?

Q11. What level of practical and theoretical skills and knowledge do you consider should have to be demonstrated by those who shoot deer unaccompanied?

Q12. Should exemptions from demonstrating skills and knowledge ("grandfathers' rights") be available to those who have substantial experience of deer management? How might this be defined?

Q13A. Should the names of those who have demonstrated the required level of skills and knowledge be held on a register, administered by DCS?

Q13B. Do you have other suggestions for how such a register could be administered?

Close Seasons

The current position

Under current legislation, Ministers are obliged to set Close Seasons for female deer and may set Close Seasons for males of each species. It is generally accepted that there is a strong justification for a Close Season to be imposed to protect females during the period when juveniles are nutritionally dependent. For males, although some deer managers use Close Seasons to manage deer populations, there is much less of a welfare necessity to have a Close Season in place.

Close Seasons do not prevent the shooting of deer in all circumstances. Rather, they prevent certain people in certain circumstances from doing so unless authorised by DCS. In particular, the current legislation exempts owner-occupiers from observing the Close Seasons where their crops are being damaged or there is a risk of crops being damaged.

Proposals for reform

The proposals do not involve changing the current primary legislative position that Ministers must set a female season and may set a male season. However, there is an argument that, once a register of competence is established and more effective local collaborative deer management structures are in place, revisions could be made to the operation of Close Seasons through secondary legislation:

• the statutory requirement to set a female Close Season would be retained, but its duration reduced to cover the period of greatest risk to dependent juveniles
• the requirement to set a male close season would be discretionary at a DMG level, with an assumption that over time it would be removed unless there were compelling reasons for it to be retained at a local level

Q14. What is your view on whether, consequential to effective local deer management structures being in place and a requirement for those who shoot deer to demonstrate skills and knowledge, the female Close Season could be reduced to cover the period of greatest risk to dependent juveniles?

Q15. What is your view on whether, consequential to effective local deer management structures being in place and a requirement for those who shoot deer to demonstrate skills and knowledge, the national male Close Season could, over time, be removed?

Q16. Do you have a view on whether, consequential to effective local deer management structures being in place and a requirement for those who shoot deer to demonstrate skills and knowledge, there could be flexibility to have male Close Seasons set at a local level?

Consequential measures

The proposals for reform of the 1996 Act set out here are an integrated package. Were the proposals on local collaborative deer management to be implemented, then a number of further consequential changes to the 1996 Act could be taken forward.

Owner-occupier exemptions

• the right of owner-occupiers of agricultural land or enclosed woodland to shoot deer in Close Seasons to protect their crops without seeking authorisation would be removed; this would be phased to coincide with the proposed changes to the operation of male and female Close Seasons; owner-occupiers would have to seek an authorisation from DCS to shoot deer in Close Seasons

Q17. Do you have a view on whether, if a requirement to demonstrate skills and knowledge was established, owner-occupiers should no longer be able to shoot deer in the Close Seasons without authorisation?

Night shooting

Currently deer can be shot at night through an authorisation from DCS on enclosed agricultural land and woodland to prevent serious damage. This authorisation relates to the property rather than the individual deer controller. A controller must therefore apply for separate authorisations for each property that night shooting is required. The proposal here seeks to ensure that the individual and not the property is authorised and hence reduce bureaucracy without compromising deer welfare. As with the current system, individuals can only exercise these rights on the properties where they have existing shooting rights, and follow the Code of Practice which requires, for example that the Police are given prior notice of the time and location of any night shooting.

• the right to shoot deer at night on enclosed agricultural land and woodland would be linked to a demonstration of skills and knowledge of night shooting which would be recorded on the register and subject, as it is currently, to a Code of Practice; it would be an offence to shoot deer at night without being on the register for this purpose; this would replace the existing system of authorisation which is based on area rather than individuals

Q18. What is your view on the proposal that the requirement to obtain an authorisation to shoot deer at night on a particular property should be replaced by the requirement on the individual to be recorded on the proposed register of competence as having appropriate skills and knowledge?

Driving deer with vehicles

Currently deer can be driven using vehicles without any controls provided there is no intention to kill them. It can be argued that any welfare risk to the animals associated with the act of driving is the same irrespective of how they are driven or for what final purpose. By opening all driving activity to the possibility of scrutiny, deer welfare will be better secured.

• the existing offence of driving deer with a vehicle for the purpose of culling would be altered to an offence of driving deer in a way that is reckless as to the consequences for their welfare; this would remove the need to seek authorisation from DCS for driving deer

Q19. What is your view on the proposal that the requirement to obtain an authorisation to drive deer with vehicles for the purpose of culling should be replaced by a new offence of driving deer, reckless as to the consequences for their welfare?

Data Collection

The final element of the proposals relates to how information is collected on deer numbers in Scotland.

DCS currently has a power to require owners and occupiers of land to produce annual cull returns. This requires DCS to be aware of individual properties over which deer are shot. This is particularly difficult to ascertain where landholdings are smaller and numerous. As a consequence, it may be that the roe deer cull is underestimated by as much as 40%.

• The power currently provided to DCS to require owners and occupiers of land to produce annual cull returns should be amended to enable DCS to require all those authorised through the register to shoot deer to submit an annual cull return, and for it to be an offence not to submit the return

Q20. Should cull returns be provided by owners/occupiers or by individuals who are on the proposed register of competence?

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