MANAGED TO COPY IT ALL I THINKBackground
540. Deer have been present in Scotland for 20,000 years and, in the last few hundred years, population numbers have fluctuated significantly. As forests were cleared across the country, and humans began to farm more intensively, deer populations shifted to where the forest and non-farmed land remained. Other factors affected the deer population, such as the extinction of the wolf in Scotland at the end of the 18th century, which helped increase the number of deer, and the introduction of greater numbers of sheep, which, combined with the changes in habitat, led to a nadir for the deer population. Numbers recovered after industrialisation, in the Victorian era, when shooting for sport became popular and a growth in numbers was encouraged to support this activity.
541. There are estimated to be up to 750,000 deer in Scotland. That number is made up by populations of four different species. Two species, red deer (Britain’s largest native land mammal) and roe deer, are native to Scotland and make up the majority of the total population figure. Estimated numbers are over 200,000 roe deer and between 300-500,000 red deer. The red deer is found predominantly in the north of Scotland, but significant populations can also be found in Argyll and the Trossachs and in Galloway. The smaller roe deer, which gathers in smaller numbers, is found across the country, and is increasingly being found in and around towns and cities.
542. Two further species, fallow and sika deer, have been introduced to Scotland through deliberate releases and escapes from country parks. Two other non-native species, muntjac and Chinese water deer, are found in England but not in Scotland, although there have been anecdotal accounts of muntjac deer being seen in Scotland.
543. Deer in Scotland are wild animals that can roam freely between forests, farms and estates and are a natural resource that is not owned by any individual or organisation. Deer only become someone’s property when they are captured or killed by persons entitled by law to do so – usually the owners of the land on which they are present, or people acting with their permission. In turn, landowners have a responsibility for the welfare of deer on their land, to manage the deer and their natural habitat appropriately.
544. Deer bring a number of economic, social and environmental benefits to Scotland, such as:
545. They can also bring significant economic, social and environmental costs, such as:
- tourism – people coming to specifically see red deer in particular;
- significant habitat and biodiversity benefits (such as grazing) where appropriate numbers exist; and
- employment, through deer stalking, deer management and the venison industry).
546. With no natural predators remaining in Scotland, deer populations are managed to balance the benefits and costs detailed above and protect different objectives. However, different people and organisations have a number of conflicting objectives in relation to managing deer numbers, such as establishing an ideal sporting population and protecting woodland and crops.
- damage to agriculture and forestry and the need to protect from possible damage (erecting fencing, re-planting of crops and trees);
- damage to natural heritage;
- damage to upland soils causing carbon emissions; and
- public health and safety issues, such as road accidents, and ensuring animal welfare concerns are properly taken in to account.
547. A collaborative approach to deer management was developed several decades ago with the formation of Deer Management Groups (DMGs), of which there are now more than 70 in Scotland.
548. DMGs are voluntary and cover areas where there are distinct herds of deer. The area they cover may range in size from 20,000 to 200,000 hectares. They can include as few as 3 or as many as 30 different landholdings. Groups are often subdivided into sub-groups for specific purposes.
What the Bill proposes
549. Part 3 of the Bill would amend the Deer (Scotland) Act 1996 (c.58) (“the 1996 Act”). Part 1 of that Act placed a duty on the Deer Commission Scotland (DCS) (the functions of which were transferred to SNH under the Public Services Reform (Scotland) Act 2010) to further the conservation, control and sustainable management of deer.
550. Part 2 of the 1996 Act provides for the setting of close seasons and creates mechanisms for the DCS (now SNH) to work with landowners in managing appropriate deer numbers.
551. Part 3 makes it an offence to kill deer without the legal right to do so. Part 4 regulates dealing in venison and contains enforcement provisions.
552. The Bill amends the 1996 Act to alter the provisions that allow certain occupiers of land to shoot deer during close seasons. It requires SNH to prepare a code of practice in relation to deer management. It revises the purposes for and circumstances in which SNH can exercise powers in relation to control agreements, control schemes and emergency measures to manage deer. It also enables Ministers to make provision, by order, to require persons who shoot deer to be registered as competent to do so. Such orders may also be used to make consequential changes to the arrangements for collecting data about the number of deer killed (‘cull returns’).
Duty to manage deer sustainably
553. SNH told the Committee, “no one owns wild deer in Scotland; they are a common resource and must be managed as a shared resource”.189 It is often said that deer should be managed sustainably and in the public interest but a definition and shared understanding of these terms are difficult to arrive at. Robbie Kernahan of SNH said—
554. As with other issues in the Bill, there is a fundamental split about whether sustainable deer management should remain on a voluntary basis or whether the Bill should introduce a duty on landowners. Opinion differs on whether the Bill represents an acceptable compromise or is a missed opportunity. Submissions also question how to define terms such as ‘sustainable’ or the ‘public interest’. It is clear that these terms mean different things to different people and there will need to be a common understanding of these terms for deer management to be successful.
“[..] it is also about trying to keep one eye on the future to see what else deer will have an impact on that may be in the public interest, such as carbon soils and carbon sequestration. It is about how well we equip ourselves legislatively to take action, and not only how we currently define public interest but how we might in the future.”190
555. Professor John Milne, ex-Chairman of the DCS, told the Committee that deer management needed to be thought of in terms of impacts rather than simply numbers. Scotland is a natural habitat for deer, the consequence of which was the proliferation of deer in some areas, and the inevitable resulting damage. The nature of this damage changes with time. For example, the number of cases of deer causing agricultural damage has declined in the last ten years, whereas cases of deer causing peat damage are increasing, or better understood. He said it was important to balance all talks of damage and control by keeping in mind the enormous positive benefits deer has, as an iconic animal in Scotland, on tourism and culture, as well as being a sporting resource of great benefit to the Scottish economy.
556. Dr Justin Irvine from the Macaulay Land Use Research Institute, also stressed the need to keep in mind the effect other changes can have, such as reducing sheep numbers, or milder winters leading to higher survival rates.
557. The consultation carried out by the Scottish Government contained a proposal that a duty be placed on landowners and managers to manage deer sustainably. However, due to disagreement in responses to the consultation, together with a concern that such a duty could contravene the European Convention on Human Rights (ECHR) this duty does not appear on the face of the Bill. Rather the Bill seeks to bring about a de-facto duty by other legislative means, and through a proposed code of practice.
558. Scottish Government officials explained the reasons behind the Bill not containing a duty to manage deer sustainably—
559. The Bill team’s legal adviser explained some of the legal difficulties in pursuing a duty on the face of the Bill, essentially that it would be unenforceable—
“[…] the point is not that we do not want deer to be managed sustainably; rather, it is that, on reflection, we consider that a legal duty in the bill to manage deer sustainably basically would not work. It would be insufficiently precise and would not focus on particular individuals. It would not be sufficiently clear in telling people what it meant.”191
560. Lloyd Austin of SE Link commented on the Scottish Government’s ECHR concerns—
“The essential problem with the duty approach is that it applies equally to private and public bodies—perhaps more to private persons and bodies than to public bodies. If general duties are included in statute for public bodies, there is a reasonable expectation that they will simply be observed; with private persons, that really needs to be backed up with criminal sanctions to make the duties have any force or teeth. It would be unreasonably vague to impose on individuals a general duty of sustainable deer management that was backed up by criminal sanctions. That would not meet tests under article 7 of the European convention on human rights.”192
561. SNH outlined its position on whether the Bill should contain a duty on deer management—
“What we propose is that the solution is not to say, "We won't have a duty, then," but to make the duty clear, and that means having a statutory form of planning system. We might encourage deer management groups to produce clear management plans, but if that does not happen, we believe that SNH should have the power to step in and produce plans. Alternatively, you might take the approach that as public bodies determine how to plan for natural resources throughout the country—for example, SEPA produces flood management plans and river basin management plans and local authorities produce development plans—SNH should take the lead in producing deer management plans, but that it should do so in a participative way.”193
562. Finlay Clark, of the ADMG, told the Committee that the principle of a duty was already well established—
“[…] in our submission, the Deer Commission—supported by SNH and the Forestry Commission—recognised that with the right to manage land comes a certain amount of responsibility. At the moment, the responsibility sits on SNH to manage deer or to co-ordinate the management of deer. We thought it only appropriate that that duty should be shared among those who have the rights to take deer. We recognise the difficulty of defining sustainability in legislative terms. We thought that that would be supported and underpinned by a code, which would have a lot of stakeholder buy-in.”194
563. The Minister told the Committee that if the voluntary measures provided for in the Bill ultimately were not successful, future administrations would need to consider the matter again.
“I do not know of one landowner or deer manager—or anyone else who is involved in the management of deer—who does not believe that they have an absolute duty to deliver good, proper and sustainable deer management. I do not know anybody who disregards that absolute duty.”195
564. The deer aspects of the Bill are those that were most changed as a result of the consultation the Scottish Government conducted on the Bill. It appears to the Committee that the Government did indeed listen to concerns expressed in consultation responses from a large number of stakeholders and that the Bill represents an acceptable compromise.
Deer Management Groups
565. One of the central pillars of the current, voluntary, approach to deer management across Scotland is the DMG system. As explained above, participation in DMGs by landowners is encouraged but ultimately voluntary and although DMGs can make plans and take decisions, there is no legal requirement for landowners to abide by such plans and decisions. However, SNH does have a backstop power, to issue a “control order”, discussed later in this section.
566. Part of the argument surrounding the possibility of the Bill containing provisions to impose a duty on landowners to manage deer sustainably, included examination of the possibility of giving greater strength, or ‘teeth’, to the DMG system by introducing duties on landowners to participate in the relevant DMG and abide by plans and decisions made by DMGs.
567. The Committee heard conflicting evidence concerning the success of DMGs. SNH noted that DMGs had originally been established to manage a common sporting resource and had struggled in recent times to deal with increasingly complex land management methods. This, in the view of SNH, had placed a great deal of pressure on the DMGs—
568. It was noted that where DMGs gathered those with common objectives, they tended to work very productively. However, DMGs which had members representing conflicting objectives, sometime including conflicting private interests, struggled to reconcile that difference. This highlighted their lack of enforcement powers.
“When putting together the advice that it submitted to ministers, the Deer Commission for Scotland recognised that voluntary deer management must be at the heart of deer management. However, the expectations on voluntary deer management groups to deliver a host of public benefits are probably greater now than they have been at any time since the groups were first put together 30 years ago.”196
569. Professor John Milne, the ex-Chairman of the DCS, argued that DMGs were the right structure and that the concept of local decision making by local people with expertise was sound, but that DMGs were not currently working as well as they ought to because they did not have adequate powers and could not compel all relevant landowners to be involved—
570. Professor Milne also noted that DMGs lacked a shared understanding of what public objectives were and had no effective mechanism for resolving disputes He was of the view that DMGs were becoming poorer at tackling deer management issues, rather than showing signs of improvement.
“[…] nothing in law says that individuals have to take part in a group. If they do take part, they do not have to follow anything that the group agrees. The group itself has no teeth. Many chairmen have approached me and told me that they cannot get the group to work because one landowner will not do one thing and another will not do something else.”197