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SECTION 8 - PARTIAL REGULATORY
IMPACT ASSESSMENT
This section sets out partial Regulatory Impact Assessments for policy issues associated with the Wildlife and Natural Environment Bill Consultation .
The broad purpose of the consultation is to help develop proposals for legislative changes which will modernise outdated statute, address anomalies and weaknesses in current provision and enhance the sustainable management of the natural environment for the public interest. It is intended that the consultation will inform development of a Wildlife and Natural Environment Bill which will support sustainable economic activity, especially in the countryside, by ensuring that wildlife and natural environment legislation is efficient, effective and proportionate.
Partial RIAs are provided for the following subjects:
- Deer management
- Game law
- Invasive Non-Native Species
- Species Licensing
- Snaring
- Muirburn
(1) PARTIAL RIA - DEER MANAGEMENT
Purpose and intended effect of deer management measures
The objective
The current legislative framework for Scotland's wild deer is now fifty years old. While it was added to in 1996 to include a greater consideration of the natural heritage, it is becoming outdated. The Scottish Government published a new approach to Scotland's wild deer in November 2008, setting out a vision of sustainable deer management. A revised legislative framework would help to ensure delivery of that vision.
The proposals for reform link the private right to shoot deer to a responsibility to manage deer sustainably. This new framework would facilitate collaborative local management, combining devolution of decision making and clarity of expectations through a code of sustainable deer management, with credible backstop powers for intervention when the public interest is compromised.
The proposals recognise that voluntary deer management, devolved to a local level, and delivered primarily through Deer Management Groups, should remain at the heart of local collaborative deer management. Compulsory powers will only be used where the voluntary system was failing to deliver.
The public view deer as an iconic species and concerns have been raised about deer welfare in a number of high profile cases which have received substantial media coverage. As issues of deer in and around towns and on Scotland's roads become more apparent, concerns are likely to rise. The proposals address public concern by requiring that all those who shoot deer to demonstrate skills and knowledge, and be registered.
Once a system of assessment of skills and knowledge, and improvements to local collaborative deer management described above are in place, deregulation of the Close Seasons and most of the process of authorisations can be introduced.
Taken as a package, the proposals aim to raise standards in the deer sector at all levels, from the individual stalker to the overall management of the national deer resource, protecting Scotland's international reputation, and the reputation of the deer sector.
The background
The significance of red deer as a species is illustrated by the fact that there were seven official inquiries into the problem of red deer control between 1872 and 1954, culminating in the Deer (Scotland) Act 1959, which (amended in 1996) still forms the basis of legislation on deer management today. Meanwhile there has been an expansion in the range and numbers of red deer and of the other three species of deer found in Scotland; roe, sika and fallow deer, with each species raising its own mix of issues.
The legal framework for wild deer management under Scots law flows from the principle that wild deer are not 'owned' as such, 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.
The Deer Commission for Scotland ( 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), and issues authorisations for certain activities relating to deer. The main principles underpinning the 1996 Act and its predecessors were the balancing of sporting interests with those of agriculture and forestry. While these interests are still valid, legislation needs to be updated to reflect wider public interests, for example the welfare of wild deer and the protection of carbon-rich soils, which need to be taken into account more fully in deer management decision-making.
Rationale for government intervention
Managing wild deer can impact on, and contribute to, a wide range of public policy objectives (together referred to as 'the public interest') relating to rural economic development, environmental quality, climate change, tourism, transport, public health, public safety and well-being, public access, and protection of animal welfare. Without changes to deer legislation there is a risk that these public interests cannot be adequately protected, and in particular that rural economic development and environmental quality aims of the Scottish Government cannot be met. Bringing forward new legislation will also allow intervention to meet future public interests, for example to ensure that deer managers can help adapt to, and mitigate, climate change.
The proposals for reform make clear that a voluntary and devolved approach to deer management should remain, but would be better supported through a duty on deer managers to manage deer sustainably, supported by a Code of Practice for local sustainable deer management covering aspects of collaborative planning, consultation and implementation.
In relation to the proposals requiring stalkers to demonstrate a minimum level of skills and knowledge there is some evidence of a potential risk to public safety and concerns have been raised from many quarters about deer welfare. There have been three fatalities associated with deer stalking in the last 4 years and research in 2003 suggested 8 over 40% of shots could give rise to welfare concerns. The Scottish position on competence for shooting deer is anomalous within Europe, where systems of hunting licences and tests are in place.
Under the current legislation, stalkers are not required to undertake any formal training. They only have to meet the firearms criteria of not being of unsound mind, intemperate manner or historically a danger to the public. The current system of firearms certification only examines an applicant's fitness and the arrangements to store a firearm, rather than competence to use it to shoot deer. This gap in competence has been addressed in an ad hoc way, through the development of a range of voluntary deer management qualifications, which are now required, for some stalking leases, for example, by Forestry Commission Scotland ( FCS), and through the development of the DCS Fit and Competent Register.
The increasing need for control of deer in and around towns will result in a greater spotlight being placed on deer management, and it is reasonable to assume that the public will expect that such management would only be carried out by skilled stalkers and deer managers who have demonstrated their skills and knowledge.
DCS considered a range of options, the strengths, weaknesses and bureaucratic burden of which are considered in Annex C of the DCS Advice to Ministers and can be found at: http://www.dcs.gov.uk/info_documents.aspx
Consultation
Within Government
The proposals in the consultation paper derive from the DCS review of the deer legislation, which was submitted to the Scottish Government in January 2009. Scottish Natural Heritage ( SNH) and FCS were involved in developing the proposals, and support the principles (as the other public agencies with a strong interest in deer management).
With stakeholders
During the review period from August 2008 to January 2009 DCS discussed the review and its finding with a range of stakeholders, including Environment LINK, the Association of Deer Management Groups, British Association for Shooting and Conservation, the British Deer Society and the Scottish Gamekeepers Association. In preparing the consultation paper, the Scottish Government has also held discussions with a range of deer stakeholders.
Options - Deer Management
Duty to manage deer
Option 1: Do Nothing
At the moment landowners and occupiers have a right to take the deer on their land, subject to the current controls contained with the Deer (Scotland) Act 1996 regarding when and how deer are killed, but there is no corresponding or underlying duty to manage deer sustainably as a common resource. In particular, there is a lack of incentive or requirement for managers to collaborate and this has adverse implications for deer welfare, natural heritage and public safety. Effective local collaborative deer management will remain patchy, leaving many areas around Scotland without effective ways to resolve conflict and deliver the public interest. The situation in areas where there are not currently deer management groups would remain unclear, leading to potential difficulties in dealing with emerging issues, like deer in and around towns.
Option 2: Introduce a duty
It is recognised that where land management objectives are complex and/or competing, voluntary arrangements have proved unable to deliver specific public benefits or reconcile the private interests of neighbouring landowners.
Introduction of a duty to manage deer would place an obligation to manage deer in a way that takes account of the interests of others. This would be supported by a code of practice would provide clarity of expectations for deer management and obligations on owner/occupiers.
It would help articulate the public interest and provide the emphasis and incentive to collaborate. Introduction of a new duty may also provide the means for securing cross compliance and better integration with other land uses and provide the basis for intervention where required.
Compulsory deer management planning
Option 1: Do Nothing
The existing legislation allows DCS to introduce and enforce control schemes to prevent damage or prevent deer posing a threat to public safety. Control schemes have never been used and are generally viewed as being overly complex, open to challenge by owners and occupiers, and difficult to apply. Some deer management groups may agree a deer management plan, but as at the moment, this is likely to remain patchy, with only around 10% of DMGs operating fully effectively, defined as DMGs which undertake collective counts and implemented management plans to determine and deliver culls.
Option 2 - Amend the existing compulsory power
Amending the existing compulsory power will provide a more credible mechanism to compel a group of land managers to implement a deer management plan. The new power would allow greater flexibility and opportunity for owners to take responsibility for the development and implementation of a deer management plan and would protect the public interest where the voluntary approach has failed. This power would be supported by offences relating to non-compliance and measures for DCS to enforce the plan and recover costs.
Option 3 - Compulsory statutory deer management groups
Rather than focus on amending the powers in order to establish a mechanism for enforcing a management plan or depending on the voluntary system in order to deliver deer management at a local level, legislation could be revised to make deer management groups compulsory. Comprehensive coverage of statutory deer management groups could better ensure delivery of the public interest than the current voluntary system, and would match the approach already used for salmon fisheries. However, this would be an expensive option, both for private landowners and for public agencies supporting a statutory system. It would impose increased bureaucracy even where deer management is working well and the public interest is already being delivered on a voluntary basis. Creating a large number of statutory groups would need additional public support to set up and run groups. Rather than devolving local decision making, this could be seen as centralisation and loss of control at a local level.
Advisory Panels
Option 1: Do Nothing
The spread of deer into more urban areas has become a key concern. The issues raised by deer in and around communities, expansion of woodlands and lack of effective management can lead to increases in numbers, particularly of roe deer, with associated problems of damage to gardens, cemeteries, road traffic accidents etc. In and around towns and cities, land holdings are often smaller than in more upland areas, and less land is managed for sporting purposes. This can make the effective management of deer harder to achieve.
Currently there are no local collaborative deer management mechanisms in the lowlands where roe deer predominate. DCS currently has powers to set up panels, but these are limited as they do not require the implementation of a deer management plan.
Option 2 - Amend the existing role of Advisory Panels
Rather than impose upland style deer management groups in these areas, a panel approach is proposed. An analogous approach, which DCS has already used successfully in localised road traffic accident hotspots, involves the setting up of a time-limited formal panel. The new powers would ensure that such a panel is required to develop and deliver a deer management plan. This would facilitate the deer management planning and delivery required without setting up a system of permanent deer management groups.
Competence
Option 1: Do Nothing
The current ad hoc system of competence would remain, with some deer stalkers choosing to take up voluntary qualifications, and around half would remain unqualified. DCS would continue to issue authorisations to those on the fit and competent register, and would continue to devote 1.8 full-time equivalents annually to administering authorisations and maintaining its register. FCS and other forestry companies would continue to demand that stalkers have a Deer Stalking Certificate level 2 in order to secure sporting leases. DCS would continue to administer up to 200 authorisations for night shooting each year, often for the same controller at a different property.
Option 2: Stalkers must demonstrate skills and knowledge
All those shooting unsupervised (estimated to be around 12,000, approximately 6,000 from Scotland, 5,000 from England and fewer than 1,000 from outside the UK) would be required to demonstrate that they have practical skills and knowledge in the areas of deer welfare, public safety and food safety, backed by a Code of Practice. Most of these stalkers will have already reached the standard required, some with formal qualifications which would lead to their automatic inclusion on a register, and some requiring to undertake an assessment process, estimated to cost from £80. There would be no change for the estimated 8,000 stalkers who shoot deer under supervision in Scotland.
The register would also contain details of those with the skills and knowledge to shoot deer at night, reducing the administrative burden of issuing separate authorisations for the same controller. It is estimated that it would take 0.75 fte to administer the register. As the register would allow for the deregulation of authorisations, the proposal would result in a net saving to DCS.
Option 3: Compulsory training
Rather than demonstrating skills and knowledge, all stalkers could be required to undergo a certain level of compulsory training. This could be linked to the existing Best Practice Guides. However, this would not contain a method to address the consequences of acting incompetently, and would require all stalkers to undertake similar training with no acknowledgement of existing knowledge and skill. Most other land use sectors combine training with some form of assessment. There is a risk that the costs of training may spiral if there is a limited range of alternatives in a captive market. In addition, it may require use of approved trainers and government approved quality control ( LANTRA for example). The statutory requirement for demonstration of 'fit & competence' via the authorisation may have to remain.
Close seasons and owner occupier rights
Option 1: Maintain current close seasons and owner occupier rights
Around 10% of the deer shot in Scotland will continue to be shot in the close season, with 5,000 females shot during the period when welfare concerns are at their greatest. DCS will continue to issue around 100 authorisations for out of season shooting covering around 2,000 deer or around 15% of the deer shot in the close season. Around 13,000 deer or around 85% would be continue to be shot by owner occupiers of enclosed agricultural land or enclosed woodland in the close season.
Option 2: Make changes to tighten the female season and potential devolve the male season to a local level, removing owner occupier rights
Fewer authorisations will be required from DCS as the close seasons would be shorter and more targeted at the period of greatest welfare risk. Resource management issues would be dealt with at local level, allowing DMGs to set their own male season. Owner occupiers would no longer have unlimited rights to kill deer at any time of year, but would have to seek authorisation during the female season.
Costs and benefits
Deer management
These proposals would potentially affect all land managers in Scotland whose land supports populations of wild deer, though in practice would not include some landholdings such as gardens. This includes privately owned land as well as land in public ownership.
The current legislation is designed primarily to balance sporting interests with the protection of agriculture and forestry, and to prevent deer-related damage. The proposed amendments seek to put in place a more flexible and devolved system that balances a wider range of public and private interests, and does not rely so heavily on demonstrating that damage has occurred.
In practice, this means the management of the deer resource in a way that allows, as far as possible, for the achievement of landowner's economic and sporting objectives, while maintaining a healthy population at a level that does not adversely impact on the natural environment and other public interests.
There should be no additional costs to those land managers already managing deer in line with the code of practice, but there will be some additional costs for those who are not, which may vary widely according to circumstances.
Effective collaborative deer management could lead to some cost savings for example through reduced damage to other land management interests such as forestry.
Advice and financial support to deliver the public interest will still be available from public agencies and programmes such as the Scottish Rural Development Programme.
Competency and close seasons
These proposals would affect all those who shoot deer unsupervised in Scotland or who supervise others. This amounts to about 12,000 individuals each year.
There would be benefits to deer welfare, public safety and food safety through the assurance that those shooting deer in Scotland have been able to demonstrate a level of practical skills and knowledge, or have been supervised by someone with such skills. There may be consequential benefits to the register such as giving suitably qualified recreational stalkers greater opportunities to take on deer management where none is taking place, providing an improved communication route with stalkers on issues such as disease outbreak and opportunities for training and assessment businesses to be developed.
Costs would be imposed on some rural businesses, for example some owner occupiers who would be required to demonstrate skills and knowledge for the first time. These costs are proportionate in the context of compelling anecdotal evidence, and acceptance among practitioners, that standards of skills and knowledge are uneven across the deer industry and should be higher, and that most experienced stalkers will already have the required levels of knowledge and experience. Training and assessment for more inexperienced stalkers should cost no more than £330 per person on average.
The deer proposals are in line with the proposed requirement for training for all those who set snares, and a 'lighter touch' than the compulsory testing/assessment for all hunters required in most European countries. A central register, expanding DCS' existing 'Fit and Competent' register, is a cost effective way to keep a record of qualified stalkers, and the proposed creation of the offence to take deer without being on a register would make the detection and prosecution on deer related wildlife crime more effective for the Police and Crown Office.
Small/Micro Firms Impact Test
The proposals on deer management will not give rise to any additional burdens for small/micro firms other than those highlighted above.
The requirement to demonstrate competence would be phased in over a number of years. As there already are a number of different assessment methods in place which are acceptable, and the deer sector would have time to develop varied yet simple and low cost assessment opportunities, compliance costs will be low. Estimates based on current costs range from £80 for a simple assessment to £250 for a training course. It is estimated that up to half of the 10-12,000 stalkers who would eventually wish to come onto a register will already have a suitable qualification. Many of the remainder will have the necessary skills and experience and so would only require an assessment.
Legal Aid Impact Test
Legal aid issues will be considered further if it is proposed to pursue the creation of any new offences following the completion of consultation.
"Test Run" of business forms
Once the policy direction has been finalised, any forms associated with implementation would be developed in consultation with the sector.
Competition assessment
There are no competition issues associated with these proposals.
Enforcement, sanctions and monitoring
The proposals (all option 2) would largely be monitored, regulated and facilitated by DCS, apart from any new offence created, which would be enforced by the Police and the courts. The offences would be very similar to existing offences under the Deer (Scotland) Act and no significant additional offences would be expected as a result of the proposals. Failure to follow the code on sustainable deer management would not be an offence; non-compliance with a compulsory plan would be an offence.
In terms of enforcing a duty to manage deer sustainably, it is likely that individual owner/occupiers managing deer in accordance with the code of practice would be deemed to be discharging the duty. Where voluntary deer management groups exist, are working effectively and in line with the code practice, the duty would be deemed as being discharged.
Ongoing, regular liaison with staff that provide advice and support to individual deer managers and deer management groups would continue. This process of engagement would highlight where there were concerns of non-compliance with the code, both on an individual estate and collaborative basis. Other indications that the duty was not being met could include a deer management group being unable to resolve neighbours' conflicting objectives; changes in the status of designated sites from favourable to unfavourable discovered through the programme of site condition monitoring; and emerging public safety issues such as increasing deer-related road traffic accidents. The consequence of the duty not being discharged would be to trigger the compulsory planning system.
The plan could be drawn up by the group themselves and DCS but it is anticipated that in most cases some external expertise would be required, for example from private consultants. The plan would have to go through an approval process to ensure that DCS was satisfied that the plan would allow the achievement of sustainable deer management and that all relevant interests had been consulted. If the plan was not satisfactory, DCS would have the power to prepare and enforce the plan.
DCS would hold the register of those who have demonstrated skills and competence, as it currently administers the fit and competent register. It would be the responsibility of the police to investigate suspected offences of killing deer without being on the register. The creation of the new offence may make it more straightforward for the police to prove that deer poaching has occurred, as they would no longer be required to prove that a deer had been killed in a place where the suspected offender did not have the right to kill deer.
Monitoring to understand if the policy objectives are being met will be done in conjunction with the monitoring for 'Scotland's Wild Deer: A National Approach'. The monitoring identifies a range of indicators to judge progress towards achieving sustainable deer management, for example, the number of deer management groups developing and implementing collaborative deer management plans and the proportion of protected nature sites impacted by deer in favourable condition.
(2) PARTIAL RIA - REFORM OF THE GAME LICENSING SYSTEMS
Purpose and intended effect of measure
The objective
Views are being sought on whether existing statutory requirements to hold a game licence to 'take or kill' game or to deal in game should be removed, and whether the existing restriction on selling game during the close season should be removed.
If progressed, these proposals would reduce bureaucracy for anyone wanting to hunt or deal in game. The proposals would also remove the need for government to deploy resources overseeing systems which currently have no significant useful purpose and are little enforced.
The background
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. A number of different licences can be obtained, the most expensive of which - the yearly licence - costs £6. The charges for game licences have not changed since 1968. The original basis for this licence appears to have been to help combat poaching and to limit the sport of shooting game to those who could afford the licence fee.
The Game Act 1831 and Game Licences Act 1860 together regulate who can sell game and detail 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, like the licence to take or kill game, the cost has not changed since 1968. The cost of the local authority licence is set by individual local authorities, averaging about £20. The requirement that people are required to have a dealing licence before they can sell game is likely to have been intended to help restrict the sale of poached game.
Under section 4 of the Game Act 1831, it is an offence to buy or sell game birds during the close season of the relevant species. Refrigeration, and today's comprehensive food standards legislation coving the food safety aspects of game dealing, now means that game bird meat could be sold throughout the year.
The rationale for government intervention
Game law is very old, with most of the legislation dating from the 19 th Century in large part unchanged. The Scottish Government recognises that elements of game statute may be out of date and in need of modernisation. It is argued in particular that the game licensing systems are outdated and serve little modern purpose.
In 2007, the UK Government abolished licensing systems for killing game or dealing in game in England and Wales. The same proposal was consulted on for Northern Ireland in 2008. The Scottish Government is consulting on whether these systems should be abolished in Scotland also.
Consultation
Preliminary consultation has been undertaken with key stakeholders. Views on the future of the game licensing systems are being sought as part of the overall Wildlife and Natural Environment Bill Consultation.
Within Government
The proposals in the consultation paper have been subject to discussion within Government, such as police and criminal justice policy interests. Relevant executive agencies and NDPBs such as Crown Office and the Food Standards Agency have also been consulted. Further discussions will take place during the Wildlife and Natural Environment Bill Consultation period.
With stakeholders
The proposals in the consultation paper have also been subject to discussion with a range of land management representative organisations and wildlife interests groups. Discussions with organisations such as the British Association for Shooting and Conservation, the Scottish Gamekeepers Association and the Royal Society for the Protection of Birds will continue during the Wildlife and Natural Environment Bill Consultation period.
Options
There are 3 options for dealing with game licensing systems - maintaining the status quo and leaving the systems as they are; abolishing the licensing systems; or reforming the licensing systems.
Option 1 - Do Nothing
It is considered that the current systems have limited value and their retention appears to offer few advantages. It is argued that the licensing systems represent a bygone age and have not been updated in ways which reflect changing social and conservation attitudes.
With regard to game licences, it is estimated that there is limited compliance with the requirement that all shooters of game have a licence. There is also doubt about the merit of requiring the police to enforce a licence which has little obvious purpose.
With regard to game dealer licences, there is arguably limited value in retail outlets having to be licensed if they want to sell game. A separate system exists to ensure proper hygiene and food safety standards. The game dealing licences do not cover food safety issues.
Option 2 - Abolish the licensing requirements and remove the restriction on selling game during the close season
Removing the requirement to hold a licence to kill/take game would remove a level of bureaucracy without compromising wildlife protection. Removing the game licence would mean that those seeking to hunt game would no longer have to purchase a game licence. The main negative impact would be that local authorities would no longer receive the marginal rate of revenue the licence generates, and it would no longer be possible to use the game licence as an enforcement tool against poaching (suspected poachers can be challenged to produce their game licence).
Similarly, it is arguable that the game dealer's licences no longer serve a useful purpose. Today's comprehensive food standards legislation covers the food safety aspects of dealing in game, and game dealers licences do not provide any wildlife protection.
With regard to selling game all year round, technological advances since the early 19th century mean that facilities are now available to freeze game lawfully taken during the open season in order to sell it during the close season. The proposed change would allow retailers to deal in domestic game all year round, which may improve the market for domestic game.
The restrictions on killing or taking game during the close season would remain in place. To ensure that game being sold had been legally killed during the open season, the Scottish Government would consider creating an offence of selling a game bird which has been unlawfully killed or taken. This offence would prohibit the selling of game birds that have been killed outside the open season or which have been poached.
Option 3 - reform the licensing systems
An alternative to abolition of the licensing systems is to reform them in an attempt to make them more effective. The current systems could be improved by issuing licences electronically to make the system more customer friendly, and would allow for easier enforcement as information on licence holders could be made available more quickly than is currently the case.
A further alternative would be for the costs of licences to be raised (for such a system to have beneficial impact, the required increase would be substantial, potentially increasing the cost of licences to between £50 and £100), and the increased revenue used for game preservation projects. Under this system, the cost of licences would increase substantially, attempts to increase compliance would be made and the revenues raised could be used for game conservation projects, administration and enforcement. The drawback of this approach is that it would result in increased bureaucracy for limited return, especially if compliance rates remained low.
Costs and benefits
If the game licensing systems were abolished this would benefit those who shoot game (individual stalkers and sporting estates) and those who deal in game. There would also be a general benefit in reforming an area of statute which no longer provides any significant value. If no change were made to the licensing systems, those who wish to shoot game would still be required to pay for a licence, and those who wished to deal in game would have to pay for the relevant licences.
Small/Micro Firms Impact Test
As the main proposals are deregulatory in nature there would be an overall positive outcome for retailers involved in selling game if the licensing systems were abolished.
Legal Aid Impact test
Legal aid issues will be considered further if it is proposed to pursue the creation of any new offences following the completion of consultation.
"Test Run" of business forms
There would be no additional business forms associated with the options set out above. Option 1 would leave existing forms in place. Option 2 would remove existing forms. Option 3 might lead to a streamlining of forms through a move to electronic licensing.
Competition assessment
There would be no competition issues associated with these reforms.
Enforcement, sanctions and monitoring
Poaching offences would continue to be enforced by the police and the courts. It is expected that any modernisation of poaching statute would result in offences and penalties which are similar to existing offences. It is not expected that any significant additional offences or penalties would be created as a result of these proposals.
(3) PARTIAL RIA - INVASIVE NON-NATIVE SPECIES
Purpose and intended effect of measure
The objective
Invasive Non-Native Species ( INNS) are recognised as one of the greatest threats to global biodiversity and as having a huge economic cost to a very wide range of sectors, probably of the order of several billion pounds annually in Britain.
The proposed reforms in this area focus on a number of key issues:
Issue 1 - Strengthening the current legislation aiming to prevent release of invasive non-native species and providing powers to control invasive non-native species
Issue 2 - Additional powers relating to causing and permitting an offence
Issue 3 - Overlap with other legislation or where legislation could be extended
Issue 4 - Changes via secondary legislation
The background
The Review of Non-Native Species Legislation and Guidance (Fasham and Trumper, 2001) noted that there are "over 45 international agreements, non-binding documents and Codes of Conduct" relating to invasive non-native species issues. This has resulted in a complicated and at times incoherent legislative framework. Simplifying and improving the current framework is a key aim of the proposals contained within the consultation paper. In addition, few of these Acts directly aim to protect biodiversity against invasive non-native species.
The primary domestic legislation concerning the impacts of non-native species is section 14 of the Wildlife and Countryside Act 1981. The 1981 Act transposes the Habitats and Birds Directives into domestic legislation and was amended through the Nature Conservation (Scotland) Act 2004 to implement a number of recommendations from the 2001 Review of Non-Native Policy.
The key features of section 14 are as follows:
- it is an offence to allow any animal (including hybrids) which is not ordinarily resident in or a regular visitor to Great Britain, to escape into the wild, or to release it into the wild; or to release or allow to escape from captivity, any animal that is listed on schedule 9 to the 1981 Actit is an offence to plan or otherwise cause to grow in the wild any plant listed on schedule 9 to the 1981 Act
Invasive non-native species offences can incur a maximum penalty of a £40,000 fine and/or 12 months imprisonment on summary conviction, and a fine and/or 2 years imprisonment on indictment.
Sections 14A and 14B of the 1981 Act enable the Scottish Ministers to make secondary legislation, and issue guidance, as follows:
- Ministers may specify by order species which it is an offence to sell, offer or expose for sale, or have in one's possession or transport for the purposes of sale
- Ministers may issue guidance about non-native species. Although non-compliance with the guidance will not be an offence, it can be used as evidence by a court. It can therefore act as a common reference point, and in determining whether the accused acted responsibly or exercised due diligence.
Rationale for government intervention
The principle driver for considering legislative reform is that the current legislation is not considered to be effective. A number of reviews and policy documents have recommended amendments to improve non-native species legislation.
The Invasive Non-Native Species Framework Strategy for Great Britain was launched by the Scottish Government, Defra and the Welsh Assembly Government in May 2008. It recognised that there are still weaknesses in the current legislative framework with a key action to seek to rectify this by "build(ing) on the research done to date on the current legislation and develop(ing) a package of legislative proposals designed to provide a more coherent and comprehensive framework for tackling invasive non-native species".
During the debate on invasive non-native species held in the Scottish Parliament on 30 October 2008, there was cross-party recognition that there are weaknesses in this area of legislation and that the Scottish Government should review the legislation to ensure there is a coherent and comprehensive framework for tackling invasive non-native species.
Consultation
A Scottish Working Group on Invasive Non-Native Species co-ordinate the overall response of public-sector bodies in Scotland to the environmental, social and economic challenges presented by invasive non-native species.
The proposals for reform have been developed by the Scottish Working Group along with consultations with key stakeholders. These included stakeholders from within government and agencies as well as local government and those outwith government including non-governmental organisations representing a number of interests (environmental, sporting, animal rights, land etc.), and research organisations.
Views on changes to the INNS legislative framework are being sought as part of the overall Wildlife and Natural Environment Bill Consultation.
Options
There are a number of options for dealing with each of the key areas noted in the objective, as well as the option of maintaining the current situation.
Option 1 - Maintain the current situation
It is considered that the current legislative framework is ineffective. It does not prevent non-native species becoming established in the wild and there is no legislative backing to control invasive non-native species.
At present, non-native species are dealt with across a number of different Acts, with the principal one being section 14 of the Wildlife and Countryside Act 1981.
Maintaining the present situation would mean that Schedule 9 of the 1981 Act would require to continue to be updated to ensure that it was representative of the current situation regarding animals that are established in the wild, or plants that pose a risk to the environment. There are problems with relying on this legislation (particularly its inability to prevent establishments) which is discussed in greater detail in the consultation document.
The option to maintain the present situation would not improve the current legislative framework and would therefore be likely to lead to the increased release of non-native species into the wild. In addition there would not be any powers to enable the control, containment and eradication of non-native species and therefore control of established non-native species would be less likely to be carried out.
Option 2 - Strengthen the current legislation aiming to prevent release of invasive non-native species; provide powers to control invasive non-native species; and provide additional powers relating to causing and permitting an offence
Proposals under this option include:
- Providing definitions to bring clarity to the legislation
- Providing a "No-Release" General Presumption
- Introducing a set of powers enabling those named by the Scottish Ministers to take reasonable action to ensure that non-native species or species outside their native range are controlled, contained or eradicated
Proposals that make the legislation easier to understand should result in more people abiding by the legislation. The proposed changes also mean that offences that are carried out should be more likely to prosecutions, as ambiguity in the legislation is removed and more offences are reported.
In addition, providing powers to those named by Scottish Ministers to require individuals to control species in certain circumstances, and access to land to carry out control where necessary, should provide legislative backing to control programmes and prevent the spread of highly damaging species.
Option 3 - Resolving overlaps with other legislation or extending legislation where appropriate
There are several Acts that overlap with section 14 of the 1981 Act leading to confusion and inconsistencies in the way some species issues are dealt with. Resolving these issues in relation to fish legislation is important to ensure that fish are treated as robustly as other species. The consultation paper proposes that these issues are resolved.
There are also useful provisions for non-native species provided through the Destructive Imported Animals Act 1932. The consultation paper proposes that these could be extended to enable them to be used against a wider range of non-native species.
Option 4 - Providing greater protection via secondary legislation
There are a number of issues relating to invasive non-native species which can be addressed through secondary legislation. This means that they can be dealt with separately from the prospective Wildlife and Natural Environment Bill, and to an earlier timetable.
These include proposals to bring forward two orders under the Destructive Imported Animals Act 1932 which would deal with issues relating to muntjac and other non-native deer species.
The main purpose of the proposed order for muntjac is preventative: to stop muntjac escaping in future and to provide DCS with powers if muntjac is released or escape. The order for all Cervus species would provide controls that would apply to those seeking to keep deer on the refugia islands 9.
Costs and benefits
Sectors and Groups Affected
Across the range of stakeholders, significant resources are currently devoted to non-native species issues and controlling invasive non-native species. The proposed reforms aim to prevent further damaging invasive non-native species becoming established and support efforts to control them thereby reducing long term-costs to government, stakeholders and the general public.
Proposed reforms in relation to preventing the release of non-native species are not intended to impact on sectors or groups carrying out legitimate activities such as forestry and falconry. Exceptions have been provided for this reason.
Individuals may be affected by this legislation if they are subject to a control order and required to remove or control an invasive non-native species contained on their land (or property). In addition, access to land to investigate, survey and control may impact on individuals denying access. There are proposals in the consultation that suggest that action could be subject to cost recovery on the polluter pays principle.
It is proposed that agencies such as SEPA, FCS, local authorities and those named by Scottish Ministers be given powers to control non-native species and to access land. These powers should help agencies and others carry out their functions.
Benefits
The impacts of invasive species result in not only loss of native biodiversity, but also loss of ecosystem services, degradation of quality of life as well as large economic costs.
Invasive non-native species are one of the major factors causing biodiversity loss and have been a major source of extinctions, especially on islands.
The global impact of invasive non-native species has been estimated to be US $1.4 trillion per annum, almost 5% of global GDP (Pimental et al. 2000). The Review of Non-Native Species Policy document (2003) noted that the direct economic costs of invasive non-native species are likely to run into billions of pounds annually in Great Britain.
Economic impacts include:
- flooding implications (with drainage channels clogged up with invasive aquatic plants)
- costs to the development industry (as development sites have to be cleared of invasive plants or on-site treatment is undertaken)
- Losses to tourism caused by impacts of INNS (e.g. on angling)
- Losses to agriculture and forestry
The proposed legislative reforms should decrease these negative impacts, as fewer invasive non-native species are released, and control measures are more frequently undertaken.
Costs
There may be costs to individuals who are required to comply with a control order, or required to pay for control under cost recovery with regard to the polluter pays principle (see above under groups and sectors affected). Costs would be extremely variable dependent on the species involved, the numbers present and the area invaded. Some example of potential costs, for illustrative purposes, are set out below:
Chemical control of terrestrial plans (not including labour) - £2/m 2
Manual control of terrestrial plans (where soil requires to be removed, such as Japanese knotweed) - £8/m 2
Aquatic chemical control of fish and invertebrates using rotenone (not including labour) - £2/m 2
Control of mink - £175/km 2 per linear river annually
If inspectors' remits are increased to include non-native species, there will be cost implications.
Small/Micro Firms Impact Test
Land use industries such as farming, forestry and development would not be adversely affected by the legislation, indeed implementation of the proposed reforms would better safeguard their interests from future damaging impacts caused by invasive non-native species.
The proposed order for muntjac and for Cervus species under the Destructive Imported Animals Act 1932 would require individuals to apply for a licence before keeping these animals (only required in the refugia islands for Cervus species). While there is no intention to charge for licences, there may be costs associated with measures such as improved enclosures.
Legal Aid Impact test
Legal aid issues will be considered further if it is proposed to pursue the creation of any new offences following the completion of consultation.
"Test Run" of business forms
Where any business forms are required as a result of these reforms they will be developed in consultation with the sector to ensure they are fit for purpose and proportionate.
Competition assessment
There would be no competition issues associated with these reforms.
Enforcement, sanctions and monitoring
Enforcement of section 14 of the 1981 Act is currently carried out by the police and it is intended that this will continue to be the case. The proposals suggest that the remit of inspectors on the ground (such as plant, fish and shellfish health inspectors) could be extended so that they are able to deal with invasive non-native species. This could include powers to confiscate and order the destruction of species that are banned from sale under section 14A of the WCA.
It is proposed that sanctions are consistent for all offences relating to invasive non-native species. New offences should therefore be comparable with current offences, which under section 14 of the 1981 Act incur a maximum penalty of a £40,000 fine and/or 12 months imprisonment on summary conviction, and a fine and/or 2 years imprisonment on indictment.
Monitoring the success of meeting the original objective will be carried out in a number of ways. Discussions with Wildlife Crime Police Officers will continue in order to determine whether the changes have made it easier to prosecute when an offence has been committed. One of the main objectives of the proposed reforms is to make the legislation and policy objectives easier to understand so that fewer species are released in the first place. This will be difficult to measure but may be picked up in some of the media and communications work. A non-native indicator is being developed, under the suite of biodiversity indicators, which will identify numbers of non-native species. Any reduction in rate of non-native species becoming established however, will be likely to be due to a number of issues being progressed under the GB Strategy, not just the legislative reforms.
(4) PARTIAL RIA - SPECIES LICENSING
SPECIES LICENSING
PARTIAL REGULATORY IMPACT ASSESSMENT
Purpose and intended effect of measure
The objective
The Scottish Government wishes to establish a species licensing system which operates in an efficient and effective manner by ensuring that the organisation(s) most appropriately placed to administer licensing undertake that activity, and that there is consistency in the activities for which licences may be granted.
The background
Protected species licensing activity in Scotland is carried out under four pieces of legislation: the Wildlife and Countryside Act 1981, the Conservation (Natural Habitats, &c.) Regulations 1994, the Badgers Act 1992 and the Conservation of Seals Act 1970. Together this legislation gives certain species of animal, birds and plants special protection in law making it an offence for them to be taken, killed or disturbed.
It is recognised that there are circumstances where it is appropriate for certain acts to be licensed which would otherwise be illegal under the terms of the legislation. For example, it is an offence to obstruct, damage or destroy a bat roost. However, where a property will suffer serious damage if repairs are not carried out and as a result of the repairs being carried out a bat roost will be obstructed and effectively destroyed, it would be possible to obtain a licence to disturb the roost. Legislation therefore permits licences to be issued in a range of circumstances.
With the establishment of Marine Scotland, licensing activities relating to seals and piscivorous birds will in the future be consolidated within that organisation.
The remainder of species licensing falls within the responsibility of the Rural Directorate of the Scottish Government and the responsibility for the administration of those licences is shared between the Scottish Government and Scottish Natural Heritage ( SNH). In general, SNH is responsible for issuing licences for scientific, research or educational purposes, and the Scottish Government is responsible for issuing licences for wider public safety or land management purposes. This regulatory impact assessment is concerned with the species licences currently administered by SNH and the Rural Directorate of the Scottish Government. It excludes general licences as it is proposed that the responsibility for determining the policy on which these are issued should remain a responsibility of the Scottish Government.
Rationale for government intervention
The Scottish Government wishes to ensure that species licensing operates in an efficient and effective manner by ensuring that the organisation(s) most appropriately placed to administer licensing undertake that activity, and that there is consistency in the activities for which licences may be granted. A consultation is underway to seek the views of customers and stakeholders about which organisation or organisations should administer licences in the future.
Consultation
Preliminary consultation has been undertaken with key stakeholders. Views are being sought as part of the overall Wildlife and Natural Environment Bill Consultation. The key stakeholders will include government bodies such as SNH and local authorities. Non-governmental groups such as environmental consultants, land mangers and other organisation with a direct interest in specific species will also be consulted.
Options for reform
There are three options for how the licensing system might operate in the future.
Licensing administration
Option 1 - Maintaining the present situation
The Scottish Government and Scottish Natural Heritage would continue to exercise their current licensing responsibilities. This would have no impact on private or voluntary businesses.
Option 2 - SNH to be the main licensing authority
Scottish Natural Heritage would take on responsibility for licences currently administered by the Scottish Government. This would have no obvious negative impact on private or voluntary businesses because the licensing system, and the criteria against which licences could be applied for, would be essentially the same. There would be a small increase in administrative effort to SNH but a single point of contact for all licensing enquiries might improve the efficiency of the licensing process and reduce scope for confusion.
Option 3 - Devolution of certain licences to local authorities
Local authorities would take on responsibility for licences currently administered by the Scottish Government, where they clearly relate to a planning application. This would result in no change for 75% of licence applications (which currently do not relate to planning activities). There would be no obvious negative impact on private and voluntary businesses for the remaining 25%, because the licensing system, and the criteria against which licences could be applied, would be essentially the same. There would be a small increase in administrative effort to local authorities but integrating species licensing decisions within the planning process to which they relate may result in a more efficient decision-making process.
Schedule 5 species
Option 1 - The Status Quo
Licences would continue to be available in relation to schedule 5 species for the same purposes as is presently the case.
Option 2 - Enabling licences to be granted for the purposes of development
Changes to the 1981 Act to allow "imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment" to be applied to Schedule 5 species are likely to have an impact on those seeking to carry out development activities. It is not possible to quantify precisely the benefits of this change as there have, in recent times, only been a handful of enquiries relating to Schedule 5 species.
Costs and benefits
There will be no costs to voluntary and private sector bodies associated with these proposals. It is intended that any changes as a result of consultation would result in a more efficient and effective licensing system.
Small/Micro Firms Impact Test
There will be no specific impact on small/micro firms.
Legal Aid Impact test
There would be no legal aid issues associated with these reforms.
"Test Run" of business forms
There would be no new business forms associated with these reforms.
Competition assessment
There would be no competition issues associated with these reforms.
Enforcement, sanctions and monitoring
There are no new enforcement, sanction or monitoring issues related to these proposals.
(5) PARTIAL RIA - SNARING
Purpose and intended effect
Objectives
The Scottish Government recognises that more can be done in terms of eliminating bad practice, sometimes criminally bad practice, in the use of all types of snares. The Scottish Government therefore wishes to drive up standards, with improved training and clear regulations that focus on animal welfare.
Background
The then Minister for Environment, Michael Russell MSP, announced a package of measures to the Scottish Parliament in March 2008 to deliver these snaring policy objectives. These were largely based on the findings of the Report of the Independent Working Group on Snares (James Kirkwood et al., 2005). Work has been undertaken by the Partnership Against Wildlife Crime Scotland Legislation, Regulation and Guidance Sub-group to consider the practical implementation of the proposals.
Rationale for government intervention
A package of changes in primary and secondary legislation, and industry led improvements, will create a structure within which roles and responsibilities will be clear and enforceable. An industry accreditation scheme for snare operators is an integral element of that.
Consultation
Consultation with key stakeholders has been undertaken through the PAW Scotland structure and through discussions with key stakeholders. This has provided land management, conservation, animal welfare and enforcement organisations with the opportunity to provide advice on the proposed changes.
Options
Option 1 - do nothing
The do nothing option would continue to place a reliance on voluntary training and accreditation of those involved in the setting of snares. It is likely that uptake of training would be patchy, there is a high risk that there will be continued variation in standards of operation of snares across Scotland, in particular with reference to animal welfare. It is unlikely that the Scottish Government's objectives for snaring practice would to be met if no action is taken.
Option 2 - land management industry accreditation scheme for snare operators
The Scottish Government's proposal is that a new land management industry accreditation scheme should be established. This would require that, within a fixed period, everyone who sets snare will require to have received training in best practice and the law. The purpose is to raise the standard of operation of snaring activities across Scotland. If this option is not progressed it is unlikely that the Scottish Government's objectives for snaring practice will be met.
Costs and benefits
Sectors and groups affected
The main groups who will be affected will be those involved in countryside management. This is principally gamekeepers, landowners and other general countryside users. The enforcement of non-compliance with the new requirement to undertake an accreditation scheme means the police will also be affected.
Benefits
The main benefit from the accreditation scheme would be improvement in the operation of snaring practice, leading to improved animal welfare.
Costs
Operators will require accreditation - there will a training/accreditation costs associated although at this stage it is difficult to judge what this will be. At this stage it is thought that a future accreditation scheme would be based on existing training schemes.
Small/Micro Firms Impact Test
Issues which will impact on small/micro firms are addressed in the section on costs and benefit. The substantial majority of snare operators are likely to fall within this category.
Legal Aid Impact test
Legal aid issues will be considered further if it is proposed to pursue the creation of any new offences following the completion of consultation.
"Test Run" of business forms
There will be no business forms associated with this proposal.
Competition assessment
There are no competition issues arising from this proposal.
Enforcement, sanctions and monitoring
There will be no change to enforcement responsibilities. The police will continue to be responsible for enforcing wildlife crime, including that relating to snaring.
(6) PARTIAL RIA - Muirburn
Purpose and intended effect of measure
The objective
In reviewing muirburn legislation, the Scottish Government's overall objective is to encourage and facilitate well managed muirburn, in order to maximize the associated environmental and economic benefits, while minimizing irresponsible or damaging burning practice.
Muirburn is a tool used to manage habitats for economically important species, including game and livestock, and as such contributes to the Scottish rural economy. It is estimated that shooting and stalking of all types in Scotland involve 1.5 million gun days per year, worth £240 million to the Scottish economy. By increasing grazing capacity, muirburn also improves agricultural productivity, particularly in areas of North and West Scotland.
Well managed muirburn may under certain circumstances contribute to meeting Scottish Government objectives for reducing CO 2 emissions. Scottish peat holds approximately three thousand million tonnes of stored carbon. Wildfires in rank vegetation can reach sufficient intensity to release this stored carbon through ignition of peat and post-fire erosion. Although some wildlfires may be caused by escaped muirburn, a significant number result from visitor carelessness (e.g. discarded cigarettes, barbecues etc.) or deliberate arson. The risk of wildfire is significantly increased where effective management of vegetation has not been carried out, because of the accumulation of plant fuel material. Muirburn can be an important element of such management. By reducing the risk of serious wildfires, muirburn also contributes to preserving human safety and property in remote areas.
The Scottish Government also wishes to encourage more environmentally responsible burning by ensuring that impacts on nesting birds, where there is evidence of this, are avoided, and by preventing burning activities which risk damage to soils.
Finally, we wish to facilitate the use of muirburn for other beneficial purposes, such as habitat restoration, pest control and research, and the use of suppression burning to control wildfires.
The background
The Hill Farming Act 1946
The making of muirburn is regulated under the Hill Farming Act 1946. Offences include:
- burning outwith the prescribed muirburn season
- beginning muirburn at night (between one hour after sunset and one hour before sunrise)
- causing damage to woodland or neighbouring land by not taking due care or providing insufficient staff and equipment
- failing to give neighbours or the proprietor of the land 24 hours notice of the intention to carry out muirburn
The Climate Change (Scotland) Bill
The Climate Change (Scotland) Bill, introduced in the Scottish Parliament in December 2008, inserts a new section into the Hill Farming Act providing an enabling power for the Scottish Ministers to vary the permitted muirburn dates in response to climate change. This will enable land managers to adapt to climate change in the event that changing weather patterns have an adverse effect on the ability to carry out muirburn effectively.
The Muirburn Code
Under cross compliance legislation, land managers must also follow the best practice guidance in the Muirburn Code in order to claim Single Farm Payment.
Rationale for government intervention
The current regulation of muirburn under the Hill Farming Act is too restrictive to allow the objectives described above to be met effectively. Land managers report that there is a shortage of suitable burning days within the prescribed season, and that this is constraining good burning practice. The current permitted dates also prevent muirburn from being used for purposes such as habitat restoration, pest control and research into the impacts of out of season burning and wildfire behaviour. Furthermore, the prohibition on commencing muirburn at night prevents the use of suppression fires to control the spread of wildfires.
Stakeholders have suggested a number of other amendments to the Hill Farming Act in order to remove unnecessary bureaucracy and minimise negative impacts on soils and nesting birds.
Consultation
Preliminary consultation has been undertaken with key stakeholders, including the Moorland Forum's Muirburn Group. Further views will be sought as part of the Wildlife and Natural Environment Bill Consultation. The key sectors to be included in this consultation will be land managers, environmental interest groups and the Fire Services.
Options
Option 1 - Do nothing
The current definition of a muirburn season under the Hill Farming Act ensures that muirburn is limited to colder, wetter months when there is less risk of fires escaping control. This reduces the risk of serious negative environmental impacts from wildfires resulting from stray muirburn and helps to maintain a low risk to human safety and property. The prohibition of burning outwith the muirburn season also brings environmental benefits by helping to protect breeding birds and animals (reinforcing legal protection under the Wildlife and Countryside Act 1981 and Conservation (Natural Heritage, &c.) Regulations 1994, as amended). The Muirburn Code also sets out good practice on responsible burning and this brings environmental and safety benefits to the extent that it is read and adhered to.
However, there are a number of problems and risks associated with the currently defined muirburn season under the Hill Farming Act. Land managers report that the number of suitable burning days within the burning season is constraining their ability to carry out sufficient muirburn, often due to wet spring weather. There is therefore a risk that practitioners may be forced to burn on less suitable days within the season to complete their burning programmes, and that they will be under more pressure to burn towards the end of the season when there are conflicts with nesting birds. A decline in the extent and frequency of muirburn is also likely to result in less managed, lower quality habitats for grouse, livestock and some wildlife. Furthermore, failure to complete burning programmes within the permitted season is likely to lead to an accumulation of combustible vegetation, increasing the risk of serious wildfire. The current muirburn season also prevents prescribed burning from being used for other beneficial purposes, such as habitat restoration and pest control, for which it would be necessary to burn out of season.
Finally, stakeholders have commented that there should be increased protection for soils and nesting birds under the Hill Farming Act, and that elements of unnecessary bureaucracy should be removed.
Option 2 - Introduce provisions to the Hill Farming Act which would allow the issue of out-of-season licences for muirburn and/or provide an enabling power for Ministers to vary the dates of the permitted muirburn season (for reasons other than in response to climate change)
Allowing muirburn to be regulated more flexibly would mitigate many of the risks and problems described under Option 1 above. Introducing a system of out of season licensing for muirburn would allow prescribed burning in Scotland to be used for habitat restoration, pest control, research, and would assist land managers in completing muirburn programmes. Enabling Scottish Ministers to vary the dates of the muirburn season, under secondary legislation, would also open up the possibility of allowing burning in September (if evidence suggests that this is safe), to assist land managers in carrying out sufficient muirburn. It would also create the opportunity to curtail the spring burning season in order to minimise impacts on nesting birds, if evidence suggests this is necessary.
Option 3 - Remove the ability to burn after 30 th April
Currently, the muirburn season extends from 1 st October until 15 th April. This period may be extended, with the landowner's permission, until 30 th April at altitudes below 450m and until 15 th May above 450m.
There is evidence that many moorland birds are nesting in May and that muirburn at this time is likely to result in the destruction of nests. Under this proposal, the Hill Farming Act would be amended to remove the ability to burn after 30 th April at altitudes above 450m. Burning at this altitude between 30 th April and 15 th May could instead be permitted under licence, provided that the criteria for assessing applications were met. The Scottish Government understands that currently, little burning takes place after 30 th April and that removing the ability to burn without a licence at this time is unlikely to affect the majority of practitioners.
Option 4 - Amend section 25(a) of the Hill Farming Act to permit the lighting of suppression fires at night, to assist in the control of wildfires
This proposal would enable land managers and the Fire Services to light suppression fires at night when fighting wildfires. This would allow the spread of wildfires to be controlled more effectively, in order to limit the associated environmental and economic damage, and the risk to human safety and property. Although the Fire Services do not as yet employ suppression fires as a standard technique, and their health and safety policy precludes working after dark, there is potential for this to change in the future.
Option 5 - Remove the legal requirement under the Hill Faming Act to give the landlord or neighbouring landowners at least 24 hours notice of their intention to make muirburn, and the approximate location and size of the burn
The aim of this proposal is to remove unnecessary bureaucracy prior to burning. Because the ability to carry out muirburn depends on unpredictable weather conditions, it may not be possible for land managers to know even hours in advance if they will burn, and if so, the location and extent of the burn. Obeying the current provision may therefore impair the flexibility to burn in appropriate conditions. Some neighbours may not have an interest in being notified, others may be absentees or unknown, making it difficult or unnecessary to comply with the requirement. There is also anecdotal evidence that this requirement is often ignored.
It would still be an offence to cause a nuisance or health hazard because of smoke, or to fail to take precautions not to damage neighbouring land or woodland.
Option 6 - Create an enabling power allowing Scottish Ministers to use secondary legislation to issue restrictions on burning practice which risks soil exposure or erosion
Scotland is dominated by organic soils and peat, which hold 50% of the UK's stored carbon. The majority of the land on which muirburn is carried out lies on top of these soils. Poorly managed muirburn has the potential to release stored carbon through direct combustion of peat, soil exposure and erosion.
In order to protect Scotland's soils, a provision would be inserted into the Hill Farming Act enabling Scottish Ministers to use secondary legislation to issue restrictions on types of burning practice which risk soil exposure and erosion. This enabling power would allow time for further analysis and discussion in order to determine the details of any appropriate restrictions. In the event that such restrictions were issued, there could be provision for issuing licences to permit such activities in certain circumstances.
Costs and benefits
The key groups and sectors likely to be affected by these proposals include land managers, such as estate owners/employees, crofters and farmers, environment interest groups and the Fire Services.
The proposal to introduce increased flexibility in the regulation of muirburn is likely to benefit those who manage the land for game and livestock, including estate managers, crofters and farmers, by reducing the pressure to complete their burning programmes within the currently defined season, and assisting them in achieving their land management objectives. This proposal will also be of benefit to those wishing to carry out habitat restoration projects, including environmental NGOs. Allowing exploration of the role of muirburn in pest or disease control may further contribute to the management of habitats for economic and environmental goals.
The introduction of an out of season licensing system for muirburn would incur modest administration costs. Further consideration will be given to whether these will be covered by a licence fee or borne by the taxpayer. In England, a similar licensing scheme is administered by Natural England and licence applications are expected to cost c.£50. However, licence applications are unlikely to be numerous. In England, only around 20 licences for out of season burning are issued per annum.
Permitting the lighting of suppression fires at night would help to reduce the economic, environmental and safety costs of wildfires, by helping to limit their spread. This will benefit land owners, their tenants and employees, by allowing them to protect their land from wildfire more effectively. It will also be of value to the Fire Services, if they adopt suppression burning as a fire fighting technique in the future.
The proposal to remove the legal obligation to notify neighbours before burning would reduce the administrative costs for land managers carrying out muirburn. However, as there is anecdotal evidence that the current obligation is often ignored, this benefit is likely to be small in scale.
Allowing Scottish Ministers to issue restrictions, under secondary legislation, on types of burning practice which risk soil exposure and erosion may introduce, if exercised, compliance costs on businesses such as estates, farms and crofts. However, the intention behind such restrictions is likely to be to target the irresponsible minority, and should not require those burning responsibly to change their behaviour. Compliance costs may therefore include a requirement on irresponsible burners to provide additional staff (quantified in man-hours) or equipment to ensure fires are managed safely. Estimated costs will be assessed in consultation with land managers.
Small/Micro Firms Impact Test
The proposals are likely to impact on small businesses, particularly game shooting estates and farmers/crofters who use heath and muir for rough grazing of livestock. The Scottish Government is engaging with the Moorland Forum's Muirburn Group, which includes representatives from these sectors, in order to ensure that the impacts of these proposals are acceptable.
Legal Aid Impact test
Legal aid issues will be considered further if it is proposed to pursue the creation of any new offences following the completion of consultation.
"Test Run" of business forms
If a licensing system is introduced to allow out of season muirburn, it will be necessary to develop a licence application form, This form will be test-run among representatives from the land management sector.
Competition assessment
There are no competition issues associated with these proposals.
Enforcement, sanctions and monitoring
There will be no change to enforcement responsibilities. If an out of season licensing system for muirburn is created, further consideration will be given to the public body best placed to administer the scheme. Appropriate monitoring arrangements may be made to ensure a review of the changes after a specified number of years to ensure that they are achieving the desired objectives. This monitoring may include measurement of environmental benefits/impacts, stakeholder perceptions, the cost of an out of season licensing scheme, costs to businesses and enforcement activities.
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