SACS RESPONCE

[wireviz 8]

Wildlife and Natural Environment Bill

Consultation 2009

 

 

DRAFT

 

 

 

This document is the formal response of the

 

Scottish Association for Country Sports

 

 

 

 

 

 

 

 

 

Scottish Association for Country Sports

Netherholm

Netherburn

Larkhall

August 2009 ML9 3DG

 

 

Introduction

 

In our view, the Bill which may follow from this consultation is the most significant opportunity for over a century to amend the laws which regulate country sports in particular, but also the legislation on many other aspects of the way we regard and use our environment for the future.

 

It is therefore essential to ensure that the Bill, when laid before the Scottish Parliament, reflects fairly and reasonably the views of those who will be affected by all proposed changes, and has the broad agreement of all.

 

In the circumstances, it was judged to be sufficiently important that, rather than simply making a response by the Association as an organisation, we chose to engage with our membership and a wide range of other groups and individuals, to establish the real opinions and views held by those we felt would be affected.

 

As a result, this submission is made rather later in the consultation period than we would have wished, but it reflects the views of an extremely broad selection of individuals and groups who have contributed their views to us to allow our response to be as accurate and informed as possible.

 

It has also allowed us, in making the submission, to take into account that the original paper submitted by the Deer Commission (Scotland) (DCS), on which much of the consultation on deer issues is based, has been demonstrated to be fatally flawed in almost every respect, and has no credibility among the consultees.

 

In fact, it would not be unreasonable to say that, as will be set out in detail later in this document, the consultation has been widely seen as having been used as a vehicle to try to achieve particular ends by a number of organisations for their own benefit, and this is widely deplored.

 

In the circumstances, it has not been possible to restrict our response to the fixed questions set out in the consultation, as these do not easily permit expression of some of the strong views we have been asked to make known.

 

To make the response reasonably understandable, therefore, the response follows the layout of the consultation document throughout, with comments on the various matters made in the order in which they occur in the document.

 

Where we have not responded to a particular question or part of the consultation, it may be taken that we have no strong views on that topic or that we feel that it has no relevance to those on behalf of whom we respond.

 

Formal response

Section 1 - Introduction

Page 5

1) Having examined the provisions of the Environmental Assessment (Scotland) Act 2005, we are of the firm view that this matter falls clearly within the terms of Schedule 2 of the Act, and that a full environmental assessment is required. The wide-ranging effects of the proposals are such that the Bill would be flagged for compulsory formal assessment by virtually every sub-section of the schedule.

 

We therefore formally request that such an assessment be carried out before any Bill is prepared, and that there should be a full consultation on that assessment with all interested parties.

 

2) In our view, the views of the Stakeholders who took part in the discussions earlier this year have not been reflected in the Consultation to any substantive extent. This has caused a degree of discontent among the Stakeholders, and has led to a lack of confidence in the consultation process as a whole.

 

This situation will only be improved if genuine regard is had to the views which will be expressed in the formal consultation now taking place and demonstrably reflected in the Draft Bill when propounded.

 

Section 2 – Deer

 

Page 9

The proposals for reform submitted by DCS in January 2009 have come under close scrutiny from many interested parties, and it has been established beyond doubt that the proposals are based on completely erroneous information and cannot be relied on in any way to inform the progress of this consultation.

 

From our discussions with members and others, the DCS document is now the subject of widespread ridicule, and is seen entirely as an attempt by DCS to enhance its own position. Whether this is true or not is outwith the remit of this document, but it is clear that very few, if any, of the DCS proposals have any support by those concerned in deer management, and we suggest that this should be given due regard when reviewing the responses.

 

In fact, we feel that we should go further and state that almost all of the DCS proposals are strongly rejected by all of the individuals with whom we have discussed the consultation, as will be set out in some detail later in this document.

 

Page 12

In respect of the creation of a statutory responsibility on landowners to manage deer sustainably, it is simply not acceptable to suggest that this could be implemented now, without full discussion and agreement on the code of practice beforehand. There is no public confidence that their views and wishes would be reasonably reflected in any such code when produced, and there would be no sense of ‘ownership’ of the legislation by those affected.

 

Question 1A

In one view, existing legislation and current practice are generally sufficient to provide the desired effect. The actual instances where problems occur are relatively few, and it is unreasonable and disproportionate to place a further burden on all landowners to deal with a problem which only relates to an extremely small number of situations.

 

Further, a credible and acceptable definition of ‘sustainably’ is unlikely to be found, since the reasons for managing deer on each particular area of land vary so widely.

 

The interests of those who own land which provides substantial stalking income (perhaps the only income which keeps the land economically viable) would be to have the high number of deer appropriate to enable them to provide the quality of stalking which their customers have come to expect – and even at this level that quality will vary from location to location.

 

At the opposite end of the spectrum, land which is managed principally for forestry and has little commercial stalking value would be best served by having no deer at all, in the narrow economic view.

 

There will of course be countless variations between these two extremes, and no single definition of ‘sustainable’ could hope to encompass the full range of management requirements, save perhaps the simple Oxford dictionary definition of ‘ able to be sustained, avoiding depletion of natural resources.’ Since even this can only be relative to changes from a selected fixed point in time, the whole concept of ‘sustainable’ will always be subject to widely differing views.

 

Even at this early stage in this response, we would express our deep concern at any attempt to further formalise or make compulsory deer management groups. The immense variation in the types of land involved over the whole of Scotland, from the large unfenced hill areas in the north and extreme south of the country to the entirely different smaller agricultural landholdings in much of central and south Scotland almost preclude any formalised and predetermined policy.

 

Deer management groups certainly work in some areas, but would be virtually unworkable in others, and in our view, they will occur naturally and voluntarily where they work. There is therefore no reason to make them compulsory, and any move towards this should be rejected. That said, the encouragement and facilitation of voluntary DMG is widely agreed to be useful in the management of the national herd at local level.

 

In general terms, landowners currently manage their land in a way which is a workable compromise between the two extremes – which we think is as it should be.

 

Question 1B

The concept of sustainable management must be used with care – and in the context of the national deer herd, rather than in relation to each and every individual area of land, where the owner must have the discretion to vary his management practice from time to time and for whatever reason he feels is necessary.

 

Following from the above, it seems reasonable to consider legislation which could be used to deal with the cases where the deer are not being managed in an ‘acceptable’, rather than sustainable, way.

 

It may be helpful to codify this general responsibility of a landowner in a clear and easily understandable way, but in our view, the duties imposed by this statute should be restricted to the welfare of the deer on that holding and perhaps public safety. We feel that such considerations as environmental issues should not be dealt with under this legislation, since the matters to be considered in such cases are not concerned with deer per se – rather with the effect they are having on the environment.

 

Question 2

We are firmly of the view that Deer Management Groups should continue to be voluntary, in every instance. The whole concept of such a group relies on co-operation between members of the group for the furtherance of their common interests. This cannot be imposed, and in fact, any legal sanction or attempt to compel members of a DMG to act in a particular way would ultimately require to be targeted at the individual members rather than the group.

 

If there were a situation where deer management was felt to be sufficiently bad that statutory intervention was justified, we have no difficulty with the concept that intervention by the relevant Authority should be permitted by law, and if the required action is not taken by the landowner, or if this is not practicable for some reason, that Authority should have the power to carry out whatever actions are required.

 

The question of when these powers would be used will always be contentious, and careful consideration will require to be given to the framing of any legislation to ensure adequate safeguards to both the landowner and the Authority, balancing the rights of the individual against the public benefit.

 

It will be important to ensure that any Authority which is empowered to intervene in this way is compelled to act in a transparent and open manner to allay the public concerns which will inevitably result from an intervention. The view that the DCS as currently constituted is not the appropriate ‘authority’ is widespread and consistent across the full range of those we have consulted before preparing this response.

 

Question 3

We do not think that there is a need for greater community involvement than at present. In our view, where a local community has involvement, it is because they wish to have it – and the converse applies. Moreover, there is a danger that the ‘community’ will not have proper awareness of the issues involved in deer management, and while this could no doubt be enhanced by education and publicity, this would be an expensive and time-consuming process – to no particular advantage.

 

Question 4

In our view, this proposal is entirely bureaucratic and unnecessary.

 

No credible evidence whatsoever has been produced to suggest that there is any need for this.

 

There is always immense difficulty in determining what the ‘public interest’ is, and the definition of this term would fall to public bodies such as the DCS, which has already demonstrated that it cannot be relied on to make decisions which are in keeping with the informed thinking of the majority of deer managers.

 

There is currently no mechanism for establishing where such a situation would even arise, other than in the exceptional examples which would already be covered by the general duty to manage the deer responsibly, and there is nothing in the consultation to suggest that the legitimate interests of the landowner could be appropriately balanced against the so-called ‘public interest’

 

Question 5

Following from the above, there should be no statutory duty, and therefore no offence to require legislation.

 

Page 13

On the subject of deer management on a very local basis, such as on urban fringes, we think that the suggested mechanisms are entirely wrong. The whole concept of a DMG in such instances is simply unworkable.

 

There is a known and widely accepted issue in respect of deer, normally roe, which have made their way into urban areas and which cause problems – notably public and road safety. There is also genuine public concern over instances where criminals hunt these deer with dogs, crossbows and other weapons in public parks and amenity areas, causing strong emotional reactions in the urban public as well as being unlawful actions.

 

In our view, this issue should be tackled completely separately from normal deer management, as the reason for management is completely different. In simple terms, deer cannot live in close proximity with people for a number of reasons, all of which are from the perspective of the people rather than the deer.

 

The answer is simple, although perhaps rather less simple to implement. All Local Authorities should be empowered and compelled to ensure that any deer which appears in an urban environment should be removed as soon as is reasonably practicable. The method of removal and the ultimate fate of the deer thus removed should of course be the subject of discussion with appropriate bodies, but since the actual numbers of these deer are small, there should be no marked financial burden imposed on Local Authorities by this duty.

 

Question 6

We are of the view that no additional powers of any kind should be conferred on the DCS as it presently exists.

 

We have become aware of a substantial groundswell of opinion among deer managers that the DCS as it is currently constituted is simply not fit for purpose, and that a full review of its functions should be carried out as soon as is practicable. The timing of this is perhaps fortuitous, in view of its recent incorporation within Scottish Natural Heritage (SNH).

 

Question 7

As above, we are of the view that no additional powers of any kind should be conferred on the DCS as it presently exists.

 

Page 14

The ‘current position’ as stated here is presumably based on the information supplied by the DCS in its paper.

 

It is now common knowledge that the facts presented are largely erroneous, and highly misleading – that being the case, the whole of the deer section of this consultation must be regarded with some scepticism.

 

It is, however in this section of the consultation that the misleading information is most disturbing and most likely to mislead Ministers in due course.

 

In particular, there are three areas where we feel that we must formally record our disapproval. Firstly, on the subject of public safety, statistics are quoted on a number of incidents where individuals were alleged to have been injured or killed while taking part in deerstalking.

 

On close examination, and as a result of discussions with DCS, it is now known that in fact none of these quoted incidents involved deerstalking and public safety.

 

Secondly, much was made in the DCS submission of concerns by the deer sector, the public and the police on deer welfare. Once again, this information was entirely misleading, and we understand that the only genuine part of this information provided by DCS was in relation to the roe deer in urban areas. This is of course a genuine concern, but it can be dealt with as suggested above at Question 7, and once again the DCS submission certainly cannot be relied on to inform Ministers of the correct facts.

 

On the same topic, of deer welfare, the DCS has supplied what on first sight appears to be evidence that deer are not being shot humanely due to lack of competence by stalkers. Their submission suggests that 43% of deer were not shot accurately enough to ensure a humane kill, and that the imposition of a compulsory test of competence is the way to improve the situation.

 

In fact, the evidence they perhaps carefully selected to justify this hugely unpopular imposition on deer managers was taken from a scientific paper produced by K A Urquhart BVMS, MRCVS & I J McKendrick BSc, PhD, which actually says that 89% of the 943 carcasses they examined had been killed by a single shot, and that % of those shots were in the recommended thoracic target area. That of course does not include head and neck shots, which would also be immediately fatal, bringing the total of deer accurately and humanely shot to above 90%

 

In our view it is entirely reprehensible for a body such as DCS to mislead not only the public, but more importantly the MSP’s and civil servants in this way, and if it can be shown that their report was deliberately calculated to mislead, action should be taken against those concerned.

 

Finally, the DCS submission alleges concerns about food safety issues, arising from deer being shot by ‘unqualified’ stalkers. The implication is of course that deer managers who do not have the suggested qualification are causing a public health issue in some way.

 

Once again this is entirely misleading. DEFRA maintains a database, which is available to the public, and contains all of the recorded information on cases of food poisoning. This information is not restricted to the UK – it covers the whole world, and it records that the last recorded incident of food poisoning caused by venison was in 1994 – in America.

 

Since the section of the consultation relating to competence is based on this DCS paper, the whole section must be regarded as seriously flawed and unsafe. It may, however have served some useful purpose, in that it will have produced a substantial volume of sensible responses to the senseless proposals, and those responses will serve to inform the progress of the future Bill.

 

Question 8

There is no credible evidence to suggest that there is any need to improve the existing skills and competence used by deer managers. In fact, the correct interpretation of the scientific evidence quoted by the DCS confirms beyond all doubt that the current position is entirely satisfactory.

 

Question 9

We are strongly of the view that there is no justification whatsoever for considering imposing a compulsory assessment of competence for those who wish to shoot deer in Scotland.

 

In practice, the route to competence in deer shooting is generally by a private mentoring process, which has always been the case. The facts and statistics clearly demonstrate that there are no known problems arising from this traditional method of achieving competence. Competence courses are freely available to anyone who does not have this route available, but there is a very strong aversion among the shooting public to the concept of having any certificate of competence imposed for a number of reasons.

 

Firstly, the shooting population is becoming considerably more politically aware and, perhaps due to the internet, keep themselves informed of developments which might affect their sport to a much greater extent that was the case even twenty years ago.

 

They are aware of the potential lateral effects of legislative changes, and in this particular case are well aware of the link, or a potential link, between this proposed test of competence and the Firearms Legislation. Current practice by Chief Constables, although it is by guideline rather than enshrined in law, is to restrict a new certificate holder to a small calibre rifle for the duration of his first certificate. In practice this will be a .22 rimfire of some description, and will only be used for shooting small quarry such as rabbits.

 

After five years of demonstrating that he is competent and safe in the use of a firearm, his certificate may on application be extended to allow him to possess rifles of a calibre which will allow him to shoot deer. By that time he will have spent five years learning accuracy, public safety, shot placement and all the other skills he would use in shooting deer if he chooses to do so.

 

If he has demonstrated, by his behaviour, that he is not competent and safe in every respect, his certificate can be revoked at any time – this ensures that a substantial degree of competence is automatically achieved before anyone can shoot deer unsupervised, and it is perhaps this process which ensures that there are almost no recorded problems with the existing system and therefore no need to make competence testing compulsory.

 

Secondly, the particular circumstances of the suggested course and certificate, the Deer Management Qualification (DMQ) make it inappropriate for use as a compulsory qualification even if one were to be required.

 

This arises from the political background to the course rather than to anything contained in it. DMQ Ltd, the only provider of the course, is a private limited company – a consortium made up of the British Association for Shooting and Conservation (BASC), the British Deer Society (BDS) and a small number of colleges which provide agricultural or gamekeeping courses. In terms of numbers, it is believed that the great majority of the DMQ courses, in terms of numbers of participants, are provided by BASC. No doubt BASC or the other members of DMQ Ltd could provide this information if required – it will be a matter of record.

 

There is therefore direct commercial monopoly involved, and it is our view that it can never be appropriate to enshrine in legislation anything which so clearly gives commercial advantage to a monopolistic body.

 

Section 9, Para 210, page 61 of the European Commission’s DG Competition discussion paper on the application of Article 82 of the Treaty to exclusionary abuses (Brussels, December 2005) confirms this.

 

 

Moreover, since the shooting population is now more aware of developments which affect them, there is a growing tendency to have views on which country sports organisation best represents an individual’s views and interests. This inevitably means that while individual organisations will have their devotees, there will be sportsmen who are not well-disposed toward them for various reasons, and who will have strong views against being compelled to submit to an assessment process which only they provide.

 

In addition, there is evidence that at least one of the DMQ consortium has insisted that individuals join them as a member, as a pre-requisite of being allowed to attend their DMQ training courses. This is simply abusing the DMQ system as a membership trap and is completely unacceptable.

 

For the above reasons, even if it had been thought desirable to make a degree of formally accredited competence necessary, it could never have been appropriate to use the DMQ as it currently exists.

 

Question 9A

There is absolutely no credible evidence to suggest that any such system is required. To attempt to impose such a requirement is hugely offensive to the great majority of people who shoot deer and would be strongly and almost universally resisted if any suggestion of this were to appear in a Bill.

 

The imposition of such a system would be hugely bureaucratic, and there are serious concerns about the implications for data protection and firearm security which would result from the possession of such a register by any organisation. Further, it would have a substantial adverse effect on the inward spending in Scottish rural areas which derives from tourists coming to Scotland to shoot deer.

 

In this respect, it should be particularly noted that this ‘tourism income’ does not derive only from foreign visitors, who would clearly be seriously inconvenienced by the proposals. A substantial part of this income is derived from visiting sportsmen from other parts of the UK, and it is wholly unreasonable (and we believe unlawful) to discriminate against those other UK residents who wish to shoot deer in Scotland.

 

In all of the research we have done before preparing this response, with the sole exception of those who provide the DMQ qualification and the DCS, whose report has already been demonstrated to be deeply flawed, we have not found a single individual or organisation who would agree with the proposal to make formal assessment compulsory.

 

That said, it is clear that there is broad support for the concept of having various forms of training courses available for those who feel that they need this type of instruction as a way to achieve low-level entry to country sports of the various kinds. This type of entry-level training can be supplied by any organisation with an interest in such matters, and voluntary uptake will dictate the demand and hence the supply for such courses.

 

Question 9B

It has been clearly established that there are no genuine reasons for concern in respect of deer welfare which can be attributed to individual deer managers or current practices by these managers.

 

In fact, such public concern as we have been able to find is clearly targeted around the ‘bulk management’ of deer carried out by institutions or on institutional advice. The concept of a mass cull, or slaughter, as the public see it, is absolutely abhorrent to the ordinary public, and this has been clearly demonstrated by the widespread public backlash against such actions – such as the Glen Feshie cull and the proposed mass cull on the Island of Rum, which appears to have been aborted due to public reaction.

 

Question 10

The creation of such an offence should not be necessary since the qualification system cannot safely be imposed.

 

Question 11

In our view, there is no need for formal demonstration of skills as suggested. In practice, those who choose to shoot deer always learn as they do so, by taking only easy and safe shots until they feel competent to extend the range at which they are confident of achieving a clean and humane kill. There is no evidence whatsoever to suggest that the existing system needs to be amended in any way.

 

Question 12

The concept of ‘grandfather rights’ in respect of this consultation is widely seen as a clear attempt to ‘buy off’ those who would be in a position, or otherwise inclined for altruistic or practical reasons, to object to the imposition of compulsory assessment. In fact, the imposition of any such scheme could only ever be applied to newcomers to deer shooting without infringing on the existing legal rights of anyone who currently has a deer rifle, and this would raise serious legal issues.

 

In any event, the proposal to introduce compulsory assessment is so deeply flawed that the question should not arise. If it did, the only possible safe option would be to exempt every individual who already has the legal right to shoot deer – whether or not he currently has a firearm certificate.

 

Question 13A

In our view, the creation of such a register, even had it been a realistic option, would have been fraught with legal, political and practical difficulties and would not have served any practical purpose.

 

There was never any genuine need for such a register in any event – this was simply an expensive and time consuming additional layer of bureaucracy which would have no public benefit.

 

Question 13B

There is no need for a register. Even if some form of compulsory assessment had been workable and acceptable, the fact that an individual had a certificate of whatever competence was required would have been sufficient. If a situation arose where there was suspicion that an individual was committing an offence by doing something that a certificate was required to do lawfully, production of the actual certificate or confirmation by the issuing organisation that a certificate had been issued to the individual would always have been required for any legal action – there mere fact that his name appeared on a register would never have been sufficient in law for a prosecution.

 

Page 15

As a preface to our comments on the specific questions regarding close seasons, we wish to draw attention to the fact that the occupier of land has always had the right to protect his crops and livestock from marauding creatures of any kind as basic and accepted legal right. In fact, the full concept is that a man has the absolute right to protect himself, his home and his family against anyone or anything which would be a threat, and this is enshrined so deeply in our legal system that any attempt to restrict this right by removing an occupier’s right to kill or otherwise protect his crops from deer would be likely to prove hugely contentious.

 

We suspect that there would be a strong likelihood that this argument would inevitably lead into the area of human rights legislation, and to prolonged legal battles in the UK and ultimately the European courts. Accordingly, we recommend that no amendment to the law which would affect this occupier’s right should be considered.

 

In our view, the concept was ill-conceived and not properly thought through – it should have been seen for what it was and dismissed as unsound at the stakeholder discussions.

 

We also wish to draw attention to one of the broadest concept of deer management as it currently exists in Scotland, which we feel should be constantly borne in mind when considering the proposals in this document.

 

It is understood that the Scottish national deer herd is currently estimated at around 450,000, and that the suggested sustainable figure should be around 200,000. This appears to be based on advice from DCS, and it is not known what the confidence factor is in these figures.

 

In the situation where we appear to wish to cull around 200,000 deer in the short to medium term, and then maintain the national herd at that level for environmental reasons, any proposal which would restrict the number of people who are able to shoot deer, or the methods by which they may legally do so, is almost certainly illogical.

 

As a simple example, the existing legislation on shooting deer at night was originally designed entirely to deter poachers, and make them easier to apprehend. The weapons used by these historical poachers would almost inevitably been shotguns, snares, dogs or perhaps a combination of these. Today, there would inevitably be deer welfare concerns if those practices were made legal.

 

We have, however moved on over the last century, and now the shooting of mammals of all kinds at night, using rifles and lamps, is a perfectly lawful, socially acceptable and entirely humane method of culling animals. Since there is no credible evidence – in fact no evidence at all – to suggest that there are any public safety or deer welfare issues involved in permitting night shooting of deer, as witnessed by the fact that a substantial number of individuals are actually licensed to do it, there is a compelling practical argument for considering abolishing the current restrictions on this activity, rather than further restricting it.

 

Question 14

Irrespective of any deer management structure or policy, in the current circumstances we do not see any negative side to reducing the season during which female deer may be lawfully culled, subject only to the caveat that for deer welfare reasons, female deer should not be shot when they have wholly dependent young unless there are compelling and over-riding public safety reasons for doing so.

 

Question 15

Irrespective of any deer management structure or policy, in the current circumstances we do not see any practical or scientific reason for maintaining a close season for male deer.

 

There will no doubt be circumstances where particular landowners will chose to restrict the shooting of male deer to certain periods, perhaps for commercial reasons such as the appearance or condition of the deer, or for the additional income which would be generated from waiting until the deer heads are in a suitable state to provide trophies.

 

This can be left to the judgement or choice of the individuals without causing and welfare or safety issues, and the absence of a legal time restriction on shooting male deer would permit a much more substantial cull of unwanted males by extending the currently limited period during which they may be shot.

 

In general terms, any method of increasing the numbers of deer culled which does not compromise deer welfare or public sensibilities should be preferred to the ill-considered and treacherous suggestions that further restrictions be imposed on deer managers which have been proposed in this consultation.

 

Question 16

If it is accepted that we are genuinely working towards a sensible and pragmatic national deer management strategy, the question of whether male deer in any area are shot, and when they are shot, can simply be decided by those who have the right to do so – the occupiers. If particular occupiers manage their deer in a way which is unacceptable in terms of deer welfare or public safety, the remedy for the very few cases where this would occur lies in imposing a pragmatic management plan, decided by a competent deer manager and imposed by a statutory body with the authority to carry out any actions required which the occupier refuses or is unable to do.

 

We note in particular, to emphasise the fact that the number of cases in which any such imposition would require to be made is likely to be insignificant, the comments made at the foot of page 11 of this consultation to the effect that although there is currently authority for DCS to impose a management scheme, (subject to ratification by Scottish ministers, which is as it should be) no such control scheme has ever been imposed.

 

In these circumstances, it appears to be completely disproportionate to attempt to change legislation which would potentially adversely affect thousands of people in a move to prevent something which has never in fact happened and may never happen.

 

Question 17

Our response to this question should be looked at together with our introductory remarks on page 15 of this submission. It is legally unsound and entirely counter-productive to consider trying to remove the current rights of occupiers to shoot deer which are damaging their crops. In fact, a strong argument can be made for removing the current licensing system, which is needed to permit out of season shooting, entirely. In our view, the only circumstances under which a license should perhaps be required would be where there is a need to shoot female deer with dependent young.

 

Moreover, there is now no credible reason for continuing to impose restrictions on who may shoot at night, or in maintaining a register of those who may do so. Even the concept that particular additional skills should be required does not stand up to close examination – these skills are common throughout the shooting population, who already safely and regularly shoot foxes and other animals at night using lamps, and are, in any event, easily and quickly learned if required.

 

Question 18

There is no longer any logical or practical reason for any restriction on who may shoot at night, no need for formal assessment of competence, and consequently no need for a register of competence.

 

Question 19

In our view, the concept of driving deer using vehicles, and in particular airborne vehicles, for any purpose is likely to create welfare issues to some extent. Even if the deer were being moved for reasons which the public would see as being for the direct benefit of the deer, such as to medicate them, or to provide supplementary feeding, there will be stress on the deer to a greater or lesser degree.

 

We think that the public would accept that, on balance, deer being moved by such means, for those reasons, was the lesser of two evils. The concept of ‘driving deer with helicopters to slaughter them in bulk’, as they would see it, is completely abhorrent to the public, and any proposals which would ‘enable’ this action will immediately provoke a public outcry, and it would be a courageous Minister indeed who grasped this particular nettle.

 

That said, if there are genuine and compelling reasons to do this, it would be unreasonable to dismiss them out of hand. Regrettably, there is nothing in either the DCS paper or this consultation which informs us of any such reasons, and in our view it is unsafe to ask for views on this matter without providing the information to permit informed responses from stakeholders.

 

In our view, the concept of such a mechanised cull should only ever be considered as a last resort – serious consideration should be given to increasing the availability of deerstalking to the shooting public, which would actually provide income to the occupiers and the local economy, rather that spending substantial amounts, almost invariably of taxpayers’ money, on immense mechanised culls which are carried out for ideological reasons.

 

Question 20

In our view, this proposal is entirely the wrong way to approach the collection of the requisite data. It creates yet another layer of bureaucracy, and presupposes the creation of a register of competence, which would be likely to meet with huge resistance from all affected.

 

In fact, every landholding is already known and registered with the Department of Agriculture & Fisheries.. Each landholding receives a detailed enquiry form every year, and it is compulsory for the occupier to provide the requested information.

 

It is perfectly simple and entirely practical for a request for the information required on deer to be added to the existing questionnaire, and there would be no extra cost or administration involved.

 

The accuracy of the information received in this way is likely to be at least as high, and may well be considerably higher, than information received from individual stalkers, who could well have private reasons for exaggerating or understating their cull figures.

 

Section 3 – Game Law

 

Question 21

In our view, both options ( and © could serve the purpose sought by this consultation to some extent.

 

We feel, however, that option (, that is to repeal all of the old statutes and consolidate them into a new single game law statute, is the better option of the two, for the following reasons:

 

The stated purposes of the Wildlife and Countryside Act 1981 were principally to repeal and replace the Protection of Birds Act 1954 and various other legislative matters in connection with the protection of various species of birds, animals and plants. The emphasis of the whole Act is to protect species and to restrict, prevent and make unlawful various actions which might adversely affect a wide range of living creatures and plants.

 

In this consultation, while there are matters which to some extent relate to the welfare of various birds and animals, we are concerned with a completely different matter – the regulation and more importantly the enabling of a wide rage of legitimate and widely accepted sporting pursuits.

 

These sporting pursuits currently produce an income to our Scottish rural economy of around £250 million per year. They generally involve the killing or taking of a sustainable harvest of wild creatures of various kinds, and the practical public benefits of these sports cannot be overstated.

 

They are almost entirely responsible for the appearance and relatively good condition of much of Scotland’s rural environment, and all of this is provided entirely by private finance – there is no cost to the public purse. This benefit could not be produced in any other way.

 

In conservation terms, these sports are universally agreed to be vitally important to our wildlife and environment in general, in that the habitat created and maintained benefits all species, not merely the creatures we classify as ‘game’. The management of species which have an adverse effect on the populations of other birds and animals, which is carried out to maintain a sustainable harvest, is of immense benefit to these species.

 

For many years, almost all field sports have come under attack from groups who disapprove of killing for what could perhaps be broadly classified as moral reasons. While they are of course entitled to their views, care must be taken to resist any suggestion, however small or subtle, that the concept of ‘game’ and the harvesting thereof, is in any way unacceptable in law.

 

Accordingly, we recommend that any changes made to the existing game laws should be kept entirely separate from the clear protectionist intentions of the Wildlife and Countryside legislation and enacted by means of a specific game law statute, thus preserving the legal principle of ‘game’ and avoiding any move towards the concept that the harvesting of game is somehow unlawful or unacceptable except as narrowly permitted by minor exemptions in legislation designed to do quite the opposite.

 

Question 22

In our view, the current game license system should simply be abolished, as it already has in England and Wales. We have not been able to establish a shred of evidence that there is any support for the current licensing system, and it is clearly illogical and unacceptable to retain these licenses in Scotland when they have been dispensed with elsewhere in the UK.

 

Question 23

We feel that there would be no benefit of any kind in pursuing either of the suggested alternatives. Once again, it would be illogical and unacceptable to do this in Scotland when the remainder of the UK has already decided that there is no benefit to be gained in either of them.

 

Question 24

Given that the purposes of the original legislation are no longer relevant, and bearing in mind that current technology, even domestic technology, commonly provides the means to freeze meat and store it for a considerable time, there does not appear to be any benefit from retaining either the licenses currently required to deal in game, or indeed any restriction on the buying or selling of game.

 

There are no known incidents of public health issues associated with the eating of game, and in principle, we feel that we should avoid any proposed legislation which would create additional and unnecessary bureaucracy. We recommend that no legislation of any kind be proposed which cannot be shown beyond reasonable doubt to be necessary to deal with a known and substantial problem, and since there are no known problems in this area, no legislation is required.

 

On the subject of dealing in game, there are currently two classes of licensed game dealers – ordinary licensed dealers and Approved game Handling Establishments (AGHE).

 

AGHE by their very nature operate to a much higher professional standard, and have staff who are more highly qualified and trained to inspect game meat and to recognise and reject any meat which could cause a potential problem if it entered the human food chain. They are closely supervised by a qualified veterinary expert from the Food Standards Agency, and are therefore extremely well placed to ensure that game meat is safe for human consumption.

 

There is currently an illogical position in respect of these AGHE, whereby in terms of the current legislation any non-approved GHE is able to accept game from an individual who does not have a ‘trained hunter’ qualification, whereas an Approved GHE, which would be far more likely to have the qualified staff necessary to detect potential problems in game carcasses can only accept game from those with the ‘trained hunter’ qualification.

 

In our view this is entirely wrong, and is likely to be counter-productive in ensuring the safety of game meat entering the human food chain, since a large proportion of game meat in Scotland is processed by these AGHE.

 

We therefore recommend that the legislation be amended to remove this illogical and counter-productive restriction, thereby potentially contributing to public health and safety.

 

Question 25

In our view, there should be a general pre-supposition that no new legislation be created unless absolutely necessary. In this particular case, game which has been killed technically becomes an ‘article’, although it may also still be game.

 

Current legislation deals adequately with unlawful actions in respect of any article, in the sense that it is already unlawful to steal, sell, buy or otherwise handle any article which has been unlawfully obtained in any way, by classifying it as theft, reset, receiving stolen good and in many other ways.

 

Accordingly, we suggest that there is no need to add to the statutory list of offences in this respect. We would also suggest that the existing laws used to deal with the offences mentioned above are already well-known to police and have the added benefit of having been tested in the courts for many years.

 

Question 26

We agree that poaching law could usefully be modernised and clarified. We recommend that the terminology used should be clear and easily understood, using modern language, and that all terms used in any proposed new laws should be carefully defined as part of the legislation to ensure that the legislation is easy to understand by police, the courts and of course those who will be bound by the legislation.

 

Further, we recommend that the wording used, and the general principles followed, be aligned as closely as possible with all current legislation for ease of use.

 

Question 27

We recommend that the definition of ‘game’ should be both modernised and standardised. We suggest that for the purposes of this part of the Bill it could be described as ‘any bird, animal or fish which may be lawfully killed or taken for sporting purposes’.

 

In suggesting this, we are aware that this definition would considerably extend the list currently in common use and that there are implications for other areas of law, which would require to be considered in detail before making such a change. These include, but would not be restricted to, coarse fish, non-native fish such as rainbow trout in a fishery, some species of birds such as woodpigeons (which may, despite being one of the most common and popular quarry species, currently be only lawfully shot under an unnecessarily convoluted process using the Public General Licenses) and various mammals, both native and non-native.

 

It would also, as an alternative, be possible to incorporate a list of exceptions to the definition of game in the Bill, which would remove the species such as coarse fish where to include them as game would hugely complicate other legislation and perhaps cause outcry among some sectors of the public about the potential restriction of their traditional pastimes.

 

It would also bring wildfowl under the definition of game for the purpose of this legislation in a simple and easily understood way, and it is sufficiently flexible to accommodate changes to species which may from time to time be added to or removed from the lawful quarry list by other statutes, and to avoid the need for having to amend this legislation if in future new species occur in the UK as a consequence of global warming or for any other reason.

 

Question 28

Since we are considering this from the simple point of view that poaching is merely theft, which happens to involve ‘items’ which for mere technical reasons do not fall under the definition of ‘property’, we cannot see any reason which would be relevant to differentiate between rabbits and hares, or indeed any other species, in respect of poaching legislation.

 

Question 29

Since we are trying to achieve modern and practical legislation which will deal effectively with what is merely a specific type of crime, we agree that police powers should be brought into line with the powers they have under the 1981 Act.

 

Question 30A

The existing special powers available to landowners and their servants were given in an age where there was no widespread police force, poor communication and little technology. In that period, the gamekeeper or one of the other ‘servants’ of a landowner were possibly the only people who would be able to apprehend a suspected poacher.

 

Since we now have police authorities which cover the whole of the UK and technology has advanced to the point that police (or perhaps special constables, in light of very recent changes) can be summoned using mobile telephones, and electronic surveillance and other technology has become readily available, in our view poaching crimes should be treated in exactly the same way as any other form of crime. Accordingly, there should now be no requirement for these additional powers which were formerly conferred on gamekeepers and other land managers.

 

The argument that poaching is a special case because it occurs in remote areas does not stand close scrutiny – if a criminal were to visit a remote dwelling or location and attempted to steal an ordinary article found there such as a vehicle, the offence would be dealt with by police. It is not logical to treat what is merely a different type of theft in a different way, and we feel that, with the development of specific wildlife crime specialists in each police authority there is no longer any justification for continuing a historic practice which actually puts individuals at risk of assault and other forms of retribution.

 

It would, however, be useful if the legislation, when framed, specifically permitted an authorised person to prevent a vehicle from leaving his land or the locality by obstructing or restricting its movement in some way, if he suspected that it was being used in connection with a poaching offence. This would help police considerably by giving them more time to attend the incident and improve the chances of a successful conviction if poaching had occurred.

 

In this respect, we suggest that a form of words such as ‘it shall not be unlawful for an authorised person to prevent, by reasonable and non-violent means, a vehicle from leaving its current location, where there is good reason to suspect that it has been, is being, or will be used in the commission of an offence under this Act’ If necessary, the courts would ultimately determine whether any means used were reasonable and non-violent.

 

 

Question 30B

We do not believe that these powers should be retained. If, however, they were to be retained, in our view they should be restricted to the absolute minimum required to apprehend and hold a suspected poacher and any associated equipment, including vehicles, until police can attend.

 

Question 31

In our view, in line with current practice in other areas of law, police should have the power to prevent an offence occurring, rather than being restricted to investigation of a crime once committed. There is no need to restrict what may be done to, or with, the eggs of game birds by the occupier or other authorised persons. They are commonly gathered for incubation for various reasons, and there is no known abuse of game bird eggs, and therefore no need to regulate what may be done with them by authorised persons.

 

If an unauthorised person were to do something unacceptable to game bird eggs, since they are ‘articles’, the law is already capable of dealing with this as theft or damage to property.

 

It may be that, if the selected new definition of the word ‘game’ does not include ducks and geese, provision may require to be made in the new legislation to include the eggs of these species.

 

Question 34

We agree that penalties should be harmonised.

 

Question 35

The reason for enabling ministers to vary the close season for species on the quarry list is that those species are strongly disadvantaged by adverse weather conditions. They are species which depend for their food supply on either aquatic plants and invertebrates or food items found by foraging in soft ground. In conditions where the surface of available water areas and/or soft areas suitable for feeding are frozen for a substantial time, these species are vulnerable and would lose condition very quickly by starvation.

 

This problem simply does not occur with the other game species, which can, and regularly do switch their food sources to a wide variety of alternatives as the availability of the different food sources changes naturally. It should also be noted that game birds commonly have supplementary food supplied in addition to their natural foraging diet.

 

In these circumstances, there is no need for Ministers to have such powers, and in our view they should not be enabled to have them. Ultimately, individual Ministers are transient, and the immediate views of one person at a particular moment in time should not be permitted to affect environment-related matters, which must be considered over a considerable time period and with the benefit of scientific information to enable prudent, balanced and informed decision making to take place.

 

On seasons in the wider sense, there has been debate for some years that the various close seasons might perhaps be amended to reflect changing weather patterns and current scientific knowledge of the effects shooting has on the various species. In general terms, the environmental seasons appear to be occurring later than was normal when the close seasons for shooting were set out originally.

 

There have also been fairly dramatic changes in the numbers and migratory patterns of some of the migratory goose species, and they have become so numerous that they have become a serious and genuine problem for agriculture in particular areas. This has resulted in substantial sums being paid from the public purse as compensation to farmers, and there is quite simply no need for this situation.

 

In our view, a genuine and reasonable case can be made for extending the end of the shooting seasons for all species to the at least the end of February, and for migratory geese, there is almost no compelling and logical reason to have a formal close season at all – they do not arrive here until they have finished breeding, and they depart for their breeding grounds before their breeding cycle commences.

 

Bearing in mind that there are now resident breeding colonies of some species of geese in Scotland, in practical terms the close season for geese could perhaps be set from the end of March to the end of August as at present.

 

In respect of Canada geese, which are already accepted in England and Wales as an invasive non-native species (INNS), there should now be no close season. It may be thought simple and useful in this respect to add them to one of the public general licenses – perhaps that issued for protection of crops. We are fortunate that this is perhaps one of the few INNS which could actually be eradicated in practical terms, without and drain on the public purse, and this amendment would perhaps help to demonstrate the Scottish government’s intention and strength of purpose to actually take positive action in respect of INNS.

 

We also strongly recommend that the position in respect of Barnacle geese, which were removed from the quarry list over 30 years ago, be reconsidered as a matter of some urgency. When these geese were removed from the quarry list, the world population and their conservation status was causing concern.

 

Over the last thirty years, the population in Islay alone has grown to an estimated 62,000 (figures by SNH) and they are devastating large areas of farmland and costing the Scottish Executive and hence the Scottish public considerable sums every year in compensation.

 

We recommend that advice be sought from the British Trust for Ornithology, which should be emgaged to investigate the current conservation status of this species, and if it is in suitable conservation status, we recommend that it be returned to the quarry list.

 

This would provide a substantial cost saving to the Scottish Executive and generate substantial inward spending on Islay from visiting shooters during the winter months when other forms or tourism are at their lowest ebb and help to make the island’s economy more stable.

 

While we would be inclined to support the suggested changes to the close seasons mentioned above, if there was general concensus that changes were required, such a major change to law, custom and practice should be the subject of wide and genuine consultation among stakeholders, and is should perhaps be the subject of a separate detailed consultation before the Draft Bill is produced.

 

Question 37

We recommend that these provisions be extended to all game birds. In fact, we would support the concept that any creature may be ‘taken’ for the purposes of tending to it, or of humanely despatching it if it has no reasonable chance of recovery.

 

Question 38

We agree that it may be necessary to kill or take game birds during the close season for public health or air safety reasons.

 

There should, however, be no need for any authorised person to obtain a license to kill or take game birds or their eggs during the close season – there are many purposes for which game birds could reasonably be taken if required, generally in connection with breeding them in captivity for various reasons. The concept of the close season relates to periods during which they may not be killed for sport, and should not be thought of as a time during which they are specially protected in any way.

 

In practice, game birds in the UK are managed carefully and extensively by occupiers – the population is almost entirely artificially maintained at a high level for sporting purposes, and our whole modern rural environment reflects this. There are no reasons why these species, in general, should be given special protection – their existence in the numbers and locations where they occur is almost entirely due to artificial rearing or environmental enhancements made for sporting purposes, and they should be regarded and treated in the same way as livestock.

 

In our view, the proposals to some extent look at this in the wrong way, and from the wrong starting point.

 

In very simple terms, all that is required is specification of the period during which they may not be killed or taken for sporting purposes – to do this becomes is therefore an offence, which can be dealt with simply and effectively by the courts. To go further and introduce complicated and bureaucratic licensing schemes is unnecessary – these species are simply livestock, in the same sense that poultry is – they are produced by man for his own purposes, and should be regarded as such.

 

The purpose and concept of a close season should simply be on welfare grounds, to ensure that birds which have dependent young are not killed in the same way that deer with dependent young are not killed unless absolutely necessary.

 

Section 4 – Invasive non-native Species

 

From our consultations with our membership and other interested parties, we know that there is strong and widespread support for the concept of tackling the whole issue of invasive non-native species (INNS).

 

The general feeling is that the government and agencies such as SNH have not been sufficiently to do this very effectively, and any move to tackle the issues in a sensible and practical way will be widely welcomed by all.

 

The only negative views we have heard are to the effect that no decisive action has been taken, and that the public do not agree with the priorities which appear to have been chosen by SNH, as the agency most concerned with this matter.

 

In the public perception, to prioritise such tasks as the occurrence of rhododendron ponticus in specified locations such as the Scottish Islands when there are other INNS such as giant hogweed, which is an immediate health danger to the public and currently in such a restricted number of locations that it could actually be eradicated in Scotland is simply unacceptable, and we tend to agree with that view.