Scottish Wildlife and Natural Environment Bill - Consultation Report

dieseldan

Well-Known Member
SECTION 1 Introduction

In June 2009 the Scottish Government published a consultation document detailing proposals to reform key areas of the wildlife and natural environment legislative framework. The aim of this consultation report is to outline how the Scottish Government intends to proceed as a result of the responses to the consultation document and stakeholder views.
The purpose of the consultation document was to inform a Wildlife and Natural Environment Bill to modernise outdated statute, address anomalies and weaknesses in current provision and enhance the sustainable management of the natural environment for the public interest.
The Scottish Government is grateful to everyone who took the time to respond to the consultation document. In total 456 responses were received. The responses were analysed by an independent consultant. An analysis of responses was published in February 2010. 1
The consultation responses reveal that overall the proposals met with a "significant level of agreement." 2 However there are some parts of the Bill that elicited strong stakeholder disagreement, notably deer and species licensing. It is clear that in some policy areas the views of consultation respondents are irreconcilably opposed. The analysis of responses to the consultation document noted a number of recurring debates:
  • Game as a commodity versus game as wildlife
  • Increased regulation versus the status quo/voluntary agreements
  • New legislation versus extending the scope of existing legislation
  • Centralised versus devolved regulation
  • Retaining the existing distribution of powers versus increased Ministerial authority
  • List-based versus broad 'catch all' approaches for the definition of legal parameters
  • Minimising the burden on rural economies versus enhancing the protection of wildlife.
The Minister for Environment and officials also met with various stakeholder groups to discuss the Scottish Government's proposals.
The sections below follow the structure of the consultation document.
SECTION 2 Deer

The consultation document set out the Scottish Government's objectives viz.:
  • 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.
In addressing these objectives the consultation document contained proposals relating to collaborative deer management, competence, close seasons, consequential measures (owner-occupier exemptions, night shooting, driving deer with vehicles) and data collection.
Collaborative Deer Management
Summary of Proposals
The consultation document proposed a more collaborative deer management system, with the aim of promoting sustainable deer management and balancing a range of public and private interests through:
  • the creation of a statutory duty on landowners to manage deer sustainably;
  • local collaborative deer management - voluntary in the first instance but with powers for Deer Commission for Scotland ( DCS)/Scottish Natural Heritage (hereafter referred to as SNH) 3 to intervene where the voluntary approach fails, supported by new offences; and
  • extended intervention powers for SNH to place a duty on an advisory panel to prepare and implement local management plans.
Consultation and Stakeholder Response
There was strong support for continuation of the voluntary approach to deer management in the first instance. The remaining proposals in this part received mixed reviews.
Conclusion
The Scottish Government recognises the legal difficulties in imposing new statutory duties on landowners. Therefore the objective related to this proposal will be achieved by establishing a statutory code of practice that will provide examples and descriptions of sustainable deer management. This code of practice will be drawn up by SNH after consultation with those with an interest in the code.
The intervention powers currently available to DCS will be improved. These changes are intended to make them more effective and more timely. SNH will be able to initiate a control agreement on the grounds of deer welfare or where this is judged to be in the public interest, and will also be required to set out annual objectives and to review progress. SNH will also be able to initiate a control scheme where it is satisfied that a control agreement is either not being carried out or where it cannot secure agreement, within 6 months of serving notice.
SNH must also have regard to the code of practice on deer management in exercising its functions, this would include for example deciding whether to pursue control agreements or control schemes.
SNH will be given power to assist any person or organisation in reaching agreements with third parties. SNH will also be required to take into account the interests of public safety and the need to manage the deer population in urban and peri-urban areas when exercising its functions.
Public bodies and office holders must have regard to advice or guidance issued by SNH relating to the conservation, control or sustainable management of deer, or any other aspect of SNH's deer functions.
Competence
Summary of Proposals
The consultation document proposed:
  • the requirement to demonstrate practical skills and knowledge in order to be named on the DCS fit and competent register in order to shoot deer;
  • provision of exemptions when shooting deer under the supervision of a person on the register and for those holding appropriate foreign awards or licences.
Consultation and Stakeholder Response
The responses to the consultation document were equally balanced in terms of agreement and disagreement with the proposals on competence. However in meetings with a range of stakeholder organisations the strength of feeling among stakeholders against introducing compulsory competence measures was clear. Several representative organisations offered to work to secure a high standard of deer stalking and support the provision of voluntary training.
Conclusion
The Scottish Government recognise the strength of feeling expressed by stakeholders and representative organisations within the deer and game sector and the desire amongst such organisations to ensure voluntarily that all those that shoot deer are considered competent to do so. Therefore a mandatory competence requirement will not be introduced immediately. Instead the Scottish Government proposes provision to be made in legislation to allow Ministers to make regulations on the establishment and operation of a register of persons competent to shoot deer in Scotland if that is considered necessary.
If such regulations are not made by 1 April 2014 SNH will review the levels of competence amongst those who shoot deer in Scotland and the effect of such levels of competence on deer welfare. SNH will consult with those persons and organisations with an interest in the review.
Close Seasons
Summary of Proposals
As a consequence of the proposed competence register and effective local collaborative deer management, the consultation document sought views on possible changes to the operation of close season:
  • reduce duration of female close season to cover period of greatest risk to dependent juveniles; and
  • requirement to set close season for males would be discretionary at Deer Management Group level, with the assumption that it would be removed over time.
Consultation and Stakeholder Response
There was majority disagreement with these proposals.
Conclusion
In response to views expressed, changes to legislation requiring Ministers to set a female close season and enabling Ministers to set a male close season will not be pursued.
Consequential measures - Owner-occupier exemptions, night shooting, driving deer with vehicles
Summary of Proposals
As a consequence of the proposed competence register and effective local collaborative deer management, the consultation document sought views on:
  • the removal of the automatic right of owner-occupiers of agricultural land or enclosed woodland to shoot deer in close seasons to protect their crops without the need to seek authorisation;
  • the right to shoot deer at night would be linked to a demonstration of skills and knowledge of night shooting; and
  • a new offence of driving deer in a manner that is reckless to their welfare.
Consultation and Stakeholder Response
The responses to each of the consequential measures were equally balanced in terms of agreement and disagreement with the proposals.
Conclusion
In recognition of the concerns expressed the Government will proceed with a modified version of the proposal to remove the automatic exemption under section 26 of the Deer (Scotland) Act 1996. There will be a responsive authorisation system, based on a form of general licence, that will allow occupiers to shoot during close seasons for certain purposes (protecting crops, pasture or enclosed woodland) but with certain conditions e.g. to provide cull returns and restrictions on when deer can be shot (the intention of this is to protect female deer at times of greatest welfare concern i.e. when they have dependant young).
The proposal in relation to night shooting will not be progressed at this time however if a competence register is introduced at a later date Ministers may provide that people registered as competent will automatically be considered fit and competent for the purpose of night shooting authorisation.
In recognition of the difficulty in framing a workable offence on driving deer, and the strong preference in many responses in favour of retaining the current offence and authorisation process, it is not proposed to alter the current legislation.
Data Collection
Summary of Proposals
The consultation document proposed that cull returns should be provided by individuals who are named on the proposed register of competence. This change was proposed as part of an integrated set of measures related to the operation of the competence register. The change is important, not so much for the established deer ranges, but for the increasing need to monitor deer control in the central belt, particularly in and around urban areas.
Consultation and Stakeholder Response
There was majority disagreement with this proposal.
Conclusion
The strong preference for retaining the current system of cull returns is acknowledged. The issue is in any case subject to progression of the competence proposal. The option to introduce a mandatory competence requirement will include the option of introducing a change to the current position on cull returns.
SECTION 3 Game Law

Game law in Scotland dates from the 18 th century and the Scottish Government considers that it is in need of modernisation to make its operation more efficient and effective.
Licence to take/kill game
Summary of Proposals
The consultation document proposed removal of the requirement to hold a licence to take/kill game.
Consultation and Stakeholder Response
There was majority agreement with this proposal.
Conclusion
This proposal will be progressed.
Licence to deal in game and selling game out of season
Summary of Proposals
The consultation document proposed removal of the requirement to hold license to deal in game; remove restriction on dealing in game birds during the close season; and introduce a new offence of selling a bird which has been unlawfully killed or taken.
Consultation and Stakeholder Response
There was majority agreement with these proposals.
Conclusion
These proposals will be progressed.
Poaching
Summary of Proposals
The consultation document proposed modernisation of poaching statute including:
  • the standardisation of the definition of game;
  • extension of police powers to poaching and alignment with the Wildlife and Countryside (Scotland) Act 1981;
  • continuation of single witness evidence;
  • rationalisation and standardisation of penalties;
  • protection of game bird eggs; and
  • game and quarry species close seasons.
Consultation and Stakeholder Response
Overall there was support for proposals with the exception of the proposal to remove powers from landowners and their employees to deal with suspected poachers which received majority disagreement. Mixed views were expressed in relation to the proposals for close seasons.
Conclusion
These proposals will be progressed. The Scottish Government takes the view that the unique powers currently enjoyed by landowners and their employees (e.g. to apprehend suspected poachers), as currently expressed in statute, are exceptional and should be repealed. The Scottish Government was not persuaded by any evidence to justify retention of these powers.
SECTION 4 Invasive Non-Native Species

The Scottish Government's proposals in relation to invasive non-native species are based on the internationally recognised "three-stage hierarchical approach". 4 This is that preventing entry and establishment of invasive non-native species should be given the highest priority as this is the most cost-effective and environmentally desirable measure. When this fails, early eradication should be considered as the preferred response, and if this is not possible then control and containment should be progressed.
The key aim of the Scottish Government's proposals in this area is to simplify and improve the current framework relating to non-native species.
Prevention
Summary of Proposals
The consultation document proposed simpler and clearer 'no release' provisions to clarify the principle that non-native species should not be released into the wild; including addressing the specific issue of "into the wild", providing greater definition to terminology and removing terms that may be considered ambiguous.
Consultation and Stakeholder Response
There was support for the release proposals. Concerns mainly centred on the fact that proposed release provisions related to non-native species, not just invasive non-native species - this is precautionary to ensure that species do not become established and problematic resulting in difficulties in cost-effective control.
Conclusion
The release provisions will continue to relate to non-native species (not only invasive non-native species) to ensure the legislation is preventative and precautionary as once species are established it can be too difficult or costly to take action. The proposals relating to a general "no-release" presumption, using the term "native range" will be progressed. An exemption for the release of red-legged partridge and common pheasant will be included, together with flexibility to allow other releases and introductions to be provided for by Scottish Ministers. The issue of "in the wild" will be addressed, by providing alternative wording where possible, as well as provision for a code of guidance to provide practical guidance in this area.
The power for Ministers to prevent the release from captivity of native animals for conservation or welfare purposes will be retained (so that for an example it can still be an offence to release white-tailed eagles without a licence).
Keeping and Notification
Summary of Proposals
The consultation document proposed extending the keeping and notification provisions to apply to other invasive non-native species.
Consultation and Stakeholder Response
There was majority agreement with the proposals.
Conclusion
These proposals will be progressed by providing a power for the Scottish Ministers to prohibit the keeping of invasive animals or plants, (or to allow this under licence). A power for the Scottish Ministers will also be provided to require notification of the presence of an invasive animal or invasive plant at a place outwith the native range of the plant or animal. Specified persons will be identified within the notification orders; this will vary by the species specified.
Control
Summary of Proposals
The consultation document sought views on the introduction of powers to enable specific public bodies to take reasonable action to control, contain or eradicate invasive non-native species.
Consultation and Stakeholder Response
While there was majority agreement in relation to the control proposals, many responses provided that agreement with caveats relating to the provisions being used fairly and transparently and with a right to appeal.
Conclusion
Control proposals will be progressed with regard to the views expressed so that powers will be applied in a fair and proportionate manner. This will provide relevant bodies (Scottish Ministers, Scottish Natural Heritage, the Scottish Environment Protection Agency or the Forestry Commission for Scotland) with powers to make a species control order where a voluntary control agreement has been refused or has failed. These can be made for invasive species outwith their native range. The provisions will set out the notification, effect, offences, enforcement and powers of entry associated with the species control orders. The ability to make an emergency species control order will also be provided for.
Additional powers relating to causing and permitting an offence
Summary of Proposals
The consultation document sought views on the introduction of provisions that would make it an offence for any person to direct an individual to carry out an action leading to an invasive non-native species offence.
Consultation and Stakeholder Response
There was majority agreement with this proposal.
Conclusion
Section 293 of the Criminal Procedure (Scotland) Act 1995 makes it an offence to take part with other persons in the commission of a statutory offence, or to aid and abet the commission of such an offence by another person. Currently therefore, legislative provision is considered to be sufficient and this will not therefore be progressed at this time.
SECTION 5 Species Licensing

Administration
Summary of Proposals
The consultation document proposed concentrating species licensing within operational authorities rather than central government; and for those species licences associated with development requiring planning consent to be dealt with by local authorities.
Consultation and Stakeholder Response
There was some misunderstanding regarding what constituted an operational authority, however the majority were in agreement with the preferred authority being Scottish Natural Heritage although a large proportion preferred central government or the status quo. An overwhelming majority were against local authorities dealing with the issue of licences.
Conclusion
These proposals will be progressed taking into account views expressed. The Scottish Government proposes that primary legislation is amended to enable Ministers to delegate the function of any species management licence to SNH or to local authorities. This will allow increased flexibility in the legislation.
Purposes for issuing licences
Summary of Proposals
The consultation document proposed modifying the 1981 Act to allow for licences to be granted for works of substantial public benefit including development activities for species listed on Schedule 5 in the same way as can presently be done for species protected under the EU Habitats Directive; and to remove duplication in legislation relating to the protection of species.
Consultation and Stakeholder Response
There was majority support for these proposals.
Conclusion
These proposals will be progressed.
SECTION 6 Other Issues

Snaring
Summary of Proposals
The consultation document sought views on the introduction of:
  • a new offence of tampering with a lawfully set snare; and
  • a new land management industry accreditation scheme for snare operators.
Consultation and Stakeholder Response
The responses were equally balanced in terms of agreement and disagreement with the proposals. In addition a number of respondents proposed a complete ban on snaring.
Conclusion
The proposal to introduce a new offence of tampering with a lawfully set snare will not be progressed, it is considered that there is sufficient legal provision in existence that would cover these offences (e.g. vandalism under section 52 of the Criminal Law (Consolidation) (Scotland) Act 1995 and aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994). The proposal for an accreditation scheme will be progressed in the form of compulsory training, taking into account practicality and views expressed.
In addition to the proposals in the consultation document the Scottish Government proposes to implement proposals to improve snaring practice, announced by the Minister for Environment, Michael Russell MSP, in 2008. 5 These proposals are the compulsory fitting of a tag with the identification number of the snare operator.
A person must be trained before they can obtain an identification number. The Government proposes that it will be an offence to set a snare without an identification tag and an offence to set a snare without an identification number.
Badgers
Summary of Proposals
The consultation document sought views on addressing anomalies in badger protection legislation relating to:
  • the level of penalties which apply to offences; and
  • the specification that it is an offence where a person knowingly causes or permits an offence in relation to badgers.
Consultation and Stakeholder Response
There was majority agreement with these proposals.
Conclusion
These proposals will be progressed. One of the results of this is that offences relating to the taking, injuring or killing of badgers and the possession of dead badgers (under the Protection of Badgers Act 1992) may be tried by summary procedure or indictment. In addition the species licensing proposals allowing flexibility on who is designated as the licensable authority, apply to badgers.
Muirburn
Increased flexibility in muirburn regulation
Summary of Proposals
The consultation document sought views on:
  • the issue of licences for prescribed burning outwith the muirburn season;
  • a power for Ministers to vary the dates of the muirburn season, for reasons other than to adapt to climate change (including variation of the season on a geographical basis)
Consultation and Stakeholder Response
The proposals to allow licensing of out of season muirburn and variation of the muirburn season received majority agreement.
Conclusion
These proposals will be progressed.
Other issues
Summary of Proposals
The consultation document proposed removal of the ability to burn after the 30 th April to reduce impacts on nesting birds; to permit the lighting of suppression fires to control wildfires at night; to remove the legal requirement to give neighbours at least 24 hours written notice of the intention to make muirburn; and to allow Ministers to restrict types of burning practice which risk soil exposure and erosion. The consultation also sought views on the need to review the Muirburn Code.
Consultation and Stakeholder Response
The proposal to remove the ability to burn after 30 th April received mixed views, with a small majority in favour of the proposal. There was majority agreement to the proposal to permit night time suppression fires. Responses were equally balanced in terms of agreement, agreement-with-caveat and disagreement, in relation to the proposal to remove the neighbour notification requirement. There was majority disagreement to the proposal to allow Ministers to restrict types of burning practice which risk soil exposure and erosion. There was majority support for updating or reviewing the Muirburn Code.
Conclusion
The proposal to remove the ability to burn after 30 th April will be progressed. The proposal to permit night time suppression fires will not be taken forward, as an alterative possible approach has been identified which can be explored through the Scottish Wildfire Forum. The proposal to remove the legal neighbour notification requirement received mixed views - therefore rather than removing the notification requirement, the Scottish Government proposes modifying it so that it is more practical for land managers to operate. The proposal to allow Ministers to restrict types of burning practice which risk soil exposure and erosion will not be taken forward, as further evidence is required in this area. It will be necessary to update the Muirburn Code to reflect the above proposals that will be progressed in legislation - this will present an opportunity to consider a wider review of the Code.
SSSI and Protected Areas Revisions
Summary of Proposals
The consultation document contained proposals to undertake relatively minor modification of SSSI legislation and repeal the Area of Special Protection ( ASP) designation. Proposals included enabling SNH to issue restoration notices, provision of enhanced powers of entry, the combination and de-notification of SSSIs, improved provision relating to operations on SSSIs permitted by public bodies and additional exemptions from the need for SSSI consent from SNH.
Consultation and Stakeholder Response
There was majority agreement to most proposals with the exception of the proposals to significantly broaden SNH's powers of entry, extension of de-notification powers (which received balanced views in terms of agreement and disagreement), and the proposal that SNH be granted powers to merge SSSI's (which received majority disagreement).
Conclusion
With one exception, all proposals are being progressed taking into account the views and concerns expressed. The exception is the extension of SNH powers of entry to land to include subsequent entry for the purposes of evidence gathering (without a warrant) for suspected offences relating to SSSI damage.
SECTION 7 Next Steps

The Scottish Government intends to introduce a Wildlife and Natural Environment Bill into the Scottish Parliament during Summer 2010.
For further information please contact:
wildlifebill@scotland.gsi.gov.uk
or
Wildlife and Natural Environment Bill
Natural Resources Division
The Scottish Government
1D - North
Victoria Quay
Edinburgh
EH6 6QQ
 
So it looks like the powers that be have spent millions of pounds and changed very little (MOST THINGS ON HOLD )Nice to see the central belt of scotland get a mention regarding cull returns.:lol: Now if i remeber most people on here said it was a done deal my feelings are that we the public made a diffenrce when they talk about stake holders and the deer sector we are a large part of that so dont think your not.
 
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