CONSULTATION ON DRAFT REGULATIONS
TO RESTRICT THE USE OF LEAD SHOT OVER WETLAND AREAS IN SCOTLAND
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The Scottish Executive is undertaking a consultation on draft Regulations to restrict the use of lead shot over wetland areas in Scotland. This follows the UK Government's ratification of the African-Eurasian Waterbird Agreement (AEWA) in 1999 which included an obligation to phase out the use of lead shot over wetlands and also follows the introduction of regulations in England and Wales.
The Scottish Statutory Instrument has been informed by the parallel English and Welsh legislation and the responses to the earlier, general Scottish consultation, Restriction on Use of Lead Shot in Scotland - A Consultation Paper, which was undertaken in 2001. This consultation paper can be viewed at http://www.scotland.gov.uk/consultations/environment/lscp-00.asp.
Views are sought on the attached Statutory Instrument which is accompanied by a Regulatory Impact Assessment (RIA) which more fully describes the approach taken, by Friday 21 May 2004.
Please send your response to: firstname.lastname@example.org
Scottish Executive Environment & Rural Affairs Department
Area 1-H South Victoria Quay
If you have any queries contact Angela McTeir on 0131 244 4415.
We would be grateful if you could clearly indicate in your response which questions or parts of the consultation paper you are responding to (using the consultation questionnaire if appropriate) as this will aid our analysis of the responses received. Please also complete and return the attached Respondee Information Form.
This consultation, and all other SE consultation exercises, can be viewed online at http://www.scotland.gov.uk/consultations. You can telephone Freephone 0800 77 1234 to find out where your nearest public internet access point is.
The Scottish Executive now has an email alert system for SE consultations ( SEconsult). This system allows stakeholder individuals and organisations to register and receive a weekly email containing details of all new SE consultations (including web links). SEconsult complements, but in no way replaces SE distribution lists, and is designed to allow stakeholders to keep up to date with all SE consultations activity, and therefore be alerted at the earliest opportunity to those of most interest. We would encourage you to register.
Access to consultation responses
We will make all responses available to the public in the Scottish Executive Library by 10 June unless confidentiality is requested. All responses not marked confidential will be checked for any potentially defamatory material before being logged in the library or placed on the website.
Wildlife & Habitats
(Protected Species and Wildlife Crime)
B. RESPONDEE INFORMATION FORM
SCOTTISH STATUTORY INSTRUMENTS
2004 No. [ ]
The Environmental Protection (Restriction on Use of Lead Shot) (Scotland) Regulations 2004
Made [ ]
Laid before the Scottish Parliament [ ]
Coming into force [ ]
The Scottish Ministers in exercise of the powers conferred by section 140 of the Environmental Protection Act 1990( 1) and of all other powers enabling them in that behalf, having consulted the committee established under section 140(5) of the Environmental Protection Act 1990 ( 2) in accordance with section 140(6)(a) of that Act, having published a notice in the Edinburgh Gazette and any other publication which they consider appropriate in accordance with section 140(6)(b) of that Act and having considered the representations made to them in respect of that notice in accordance with section 140(6)(c) of that Act; considering it appropriate to make these Regulations for the purpose of preventing the substance or articles specified in them from causing pollution of the environment and harm to the health of animals; hereby make the following Regulations:
Citation, commencement and extent
1.-(1) These Regulations may be cited as the Environmental Protection (Restriction on Use of Lead Shot) (Scotland) Regulations 2004 and shall come into force on [ ].
(2) These Regulations extend to Scotland only.
2. In these Regulations-
"lead shot" means any shot made of-
(a) lead, or
(b) any alloy or compound of lead where lead comprises more than 1% of that alloy or compound;
"the Ramsar Convention" means the Convention of Wetlands of International Importance especially as Waterfowl Habitat signed at Ramsar on 2 nd February 1971( 3);
"shot gun" means a smooth-bore gun but does not include any shot gun chambered for 9 millimetre or smaller rim-fire cartridges;
"wetlands" has the meaning given by Article 1.1 of the Ramsar Convention.
Prohibition on use of cartridges containing lead shot
3. No person shall use lead shot for the purpose of shooting with a shot gun on or over wetlands.
Powers of investigation etc: police
4.-(1) A constable who suspects with reasonable cause that any person is committing or has committed an offence under these Regulations may without warrant -
(a) stop and search that person if the constable suspects with reasonable cause that evidence of the commission of the offence is to be found on that person,
(b) search for, search or examine any thing which that person may then be using or may have used, or may have or have had in the person's possession, if the constable suspects with reasonable cause that evidence of the commission of the offence is to be found in or on that thing,
(c) seize and detain for the purposes of proceedings under these Regulations any thing which may be evidence of the commission of the offence.
(2) A constable who suspects with reasonable cause that any person is committing or has committed an offence under these Regulations may, for the purpose of exercising the powers conferred by paragraph (1), enter any land other than a dwelling or lockfast premises.
(3) If a sheriff or justice of the peace is satisfied, by evidence on oath, that there are reasonable grounds for suspecting that an offence under these Regulations has been committed and that evidence of the offence may be found on any premises other than a dwelling, the sheriff or justice may grant a warrant authorising a constable to enter those premises, if necessary using reasonable force, and search them for the purposes of obtaining that evidence.
(4) A warrant under paragraph (3) continues in force until the purpose for which the entry is required has been satisfied, or, if earlier, the expiry of such period as the warrant may specify.
(5) A constable who enters any land in the exercise of a power conferred by this regulation
(a) may -
(i) be accompanied by any other persons, and
(ii) take any machinery, other equipment or materials on to the land,
for the purpose of assisting the constable in the exercise of that power, and
(b) may take samples of any articles or substances found there and remove the samples from the land.
(6) A power specified in paragraph 5(a) or (b) which is exercisable under a warrant is subject to the terms of the warrant.
Duty to secure land
5. A constable on leaving any land which has been entered in exercise of a power conferred by regulation 4(2) or (3), as the case may be, which is either unoccupied or whose occupier is temporarily absent, shall leave the land as effectually secured against unauthorised entry as the constable found it.
6. Any person who contravenes regulation 3 above or causes or permits another person to contravene that regulation shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Offences by bodies corporate etc.
7. - (1) Where an offence under regulation 3 committed -
(a) by a body corporate, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who -
(i) is a director, manager or secretary of the body corporate, or
(ii) purports to act in any such capacity,
(b) by a Scottish partnership, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who -
(i) is a partner, or
(ii) purports to act in that capacity,
(c) by an unincorporated association other than a Scottish partnership, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who -
(i) is concerned in the management or control of the association, or
(ii) purports to act in the capacity of a person so concerned,
the individual (as well as the body corporate, Scottish partnership or, as the case may be, unincorporated association) is guilty of the offence and is liable to be proceeded against and punished accordingly.
(2) Where the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts and defaults of a member in connection with the member's functions of management as if the member were a director of the body corporate.
(3) Any penalty imposed on a body corporate, Scottish partnership or, as the case may be, unincorporated association on conviction of an offence under this Part is to be recovered by civil diligence in accordance with section 221 of the Criminal Procedure (Scotland) Act 1995 (c.46).
Authorised to sign by the Scottish Ministers
St Andrew's House,
[ ] 2004
( This note is not part of the Regulations)
These Regulations ("the Regulations"), which apply to Scotland only, prohibit the use of lead shot for shooting with a shot gun on or over wetlands (regulation 3).
Regulation 2 contains definitions of terms used. "Wetlands" is described by reference to Article 1.1 of the Convention of Wetlands of International Importance especially as Waterfowl Habitat signed at Ramsar on 2 nd February 1971 as amended from time to time.
Article 1.1 states: "For the purpose of this convention wetlands are areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas or marine water the depth of which at low tide does not exceed six metres" (4)
Regulation 4 sets out powers to enable a constable to ascertain whether an offence has been committed under the Regulations where the constable has reasonable suspicion that an offence has been committed. It sets out powers of search, seizure and entry into any land without a warrant, except for dwellings and lockfast premises. The police are able to obtain a warrant to enter any premises except for dwellings if necessary using reasonable force. There is also a power to enable samples or any articles or substances to be taken. In carrying out powers under this regulation a constable may be accompanied by any other person to assist and may take necessary equipment or materials.
Regulation 5 places a duty on a constable to ensure, when leaving unoccupied land or land of which the owner is temporarily absent, which the constable has entered in exercise of the powers under regulation 4, that the land is effectively secured against unauthorised entry as the constable found it.
Regulation 6 creates the offence of contravention, or causing or permitting the contravention of regulation 3. It makes that offence punishable summarily with a fine not exceeding level 3 on the standard scale.
Regulation 7 provides for offences which are committed by bodies corporate, partnerships and unincorporated associations.
RESTRICTIONS ON THE USE OF LEAD SHOT IN SCOTLAND
REGULATORY IMPACT ASSESSMENT
1. Attached are draft regulations to restrict the use of lead shot on or over all wetland areas in Scotland. This paper looks at the implications for different sections of the community.
2. Lead has been identified as posing a particular threat to waterbirds through lead poisoning and the UK has an international commitment under the African-Eurasian Migratory Waterbird Agreement (AEWA) to endeavour to phase out the use of lead shot over wetlands. The regulations are intended to reduce the threat of lead poisoning to waterbirds and help Scotland meet its international commitment.
Assessment of Risk
3. Lead is universally recognised as a poison. Decades of research into its toxic effects have shown that lead can affect the development, reproduction and survival of animals and humans. This has led to stricter controls on the introduction of lead into the environment by a reduction in its use in paints, petrol and angling and shooting sports. Lead shot has been identified as posing a particular threat to waterfowl from lead poisoning. Waterbirds take in grit to aid their digestion and where spent lead shot is deposited over wetlands, they can take in shot with the grit. The lead in the spent shot remains in the affected bird's gut slowly poisoning it and if enough lead is swallowed the bird will die from lead poisoning.
4. Although less research has been undertaken in Scotland than, for example, North America, a UK study 'The Incidence and Significance of Ingested Lead Pellet Poisoning in British Wildfowl' (G. P. Mudge, 1983), estimated that about 2.3% of the British population of wild mallard might die each winter as a direct result of lead pellet ingestion. In 1983 this represented about 8000 birds. The areas where samples were collected for the study included the Solway Firth, Islay, South Tayside and Fife, North East Grampian and the Moray Firth.
5. A voluntary phase-out of the use of lead shot over wetlands in the UK was adopted in 1995. This initiative was recommended by the then Department for the Environment, Transport and the Regions (DETR)-led Lead Poisoning in Waterfowl Working Group. However, The UK Government felt that the voluntary approach was not sufficient to ensure the protection of waterfowl.
Regulation in England and Wales
6. As part of the commitment set out at paragraph 2 above, the DETR undertook a GB-wide consultation early in 1999 on possible regulations prohibiting the use of lead shot over certain wetland areas in Great Britain. Regulations were subsequently introduced in England only, on 1 September 1999, prohibiting the use of lead shot (defined in the regulations as any shot with more than 1% lead content):
- on or over specified Sites of Special Scientific Interest (SSSI) identified as important to waterfowl;
- on or over all areas below the high watermark; and
- for shooting certain species of waterfowl anywhere in England.
7. The Environmental Protection (Restriction on Use of Lead Shot) (England) Regulations (SI 1999 No 2170) have since been amended by a further set of regulations. In 2002 the Welsh Assembly Government introduced legislation for Wales similar to that adopted in England.
8. The approach adopted in England and Wales is perceived by many organisations to offer appropriate protection to waterbirds from lead poisoning without being unduly restrictive on shooters. It also targets those Sites of Special Scientific Interest important to waterfowl. Reports from England (where this approach has been adopted) indicate a high level of compliance with the regulations, with only a very small number of potential offences reported to the police and no court action taken, and gunshot manufacturers report a 20-fold increase in non-toxic shot sales.
9. There is an argument in favour of having consistent provisions with England and Wales, particularly with England as there are cross-border areas where the restrictions will apply (e.g. the Solway Firth and River Tweed). However, many individual shooters and those organisations that represent them point out that Scotland is different to England and Wales as the proportion of shooting taking place outside of wetlands is higher and additional species restrictions will impose unnecessary burdens on those shooting in such areas. Many are concerned that they may be prosecuted for shooting mallard with lead shot as part of a mixed bag in an upland moorland when waterbirds are unlikely to ingest spent shot in such areas. Others who would be inconvenienced are those shooting geese over farmland, both as sport and for culling. For this reason, while many support restrictions in wetland areas important to waterbirds they do not support additional species-based restrictions.
Approach in Scotland
10. A general Scottish consultation exercise was undertaken in July 2001 eliciting over 60 responses from a wide range of individuals and organisations with an interest in the subject. The draft regulations have been informed by the responses to the consultation. The proposed approach to restrict the use of lead shot over wetland areas in Scotland is outlined below:
Prohibition on the use of lead shot for the purpose of shooting with a shot gun on or over all wetlands in Scotland. "Wetland" has the meaning given by Article 1.1 of the Ramsar Convention:
"Areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres".
11. The purpose of introducing regulations in Scotland is to meet the commitment under the AEWA, to protect waterbirds from the threat of lead poisoning. The all wetland ban approach would ensure that lead shot is not deposited in any wetland area and would completely fulfil Scotland's obligations under the Agreement, removing the need for any species based restrictions. Additionally, this approach would not inconvenience those shooting away from wetland areas.
12. There are of course some difficulties in pursuing this option. The lead shot ban will be different from other parts of Great Britain, both because there are cross-border areas where different restrictions will apply and second as individual shooters may shoot in different parts of the UK. There are also potential difficulties in ensuring shooters are aware that they are shooting in or over a wetland area. However, these will be overcome through accompanying advisory material such as best practice guidelines which the Executive will develop with key interests.
13. We believe that this approach will fully meet Scotland's obligations under AEWA, is proportionate and will not unnecessarily restrict those shooting outwith wetland areas.
Costs for shooters
14. A typical lead shotgun cartridge for duck shooting costs approximately 11p. Steel, the cheapest alternative, costs 12-16p; and Bismuth or Tungsten cartridges around 50p.
15. There are two situations in which steel shot cannot be used:
- with older firearms as the barrels may not be able to stand the harder steel shot; and
- in wooded areas as the shot may ricochet off trees and injure people, or bury itself in a trunk, causing a risk to the operator of any chainsaw coming into contact with it.
16. Most shooters would be able to switch to steel shot and the increase in cost would not be significant. For those who cannot or prefer not to switch, the cost of the bismuth/tungsten/Hevi-shot alternatives would be considerably more expensive, although there may be some reduction in the cost of non-lead alternatives with an increased market and savings through mass production. However, the cost of such shot will still represent a very small part of the total costs incurred by most shooters. Overall, individual shooters are unlikely to undertake fewer shooting trips.
17. It is not possible to quantify the percentage of shooting affected by this change, but the approximate area of Scotland covered by wetlands (as defined at paragraph 10 above), is 5% of the surface of Scotland. A previous UK estimate (Pain 1992) suggests that 8% of shot is fired into wetlands.
18. A voluntary agreement not to use lead over wetland areas has operated since 1995. The 'Code of Good Shooting Practice' (produced jointly by the British Association for Shooting and Conservation, Countryside Alliance, Game Conservancy Trust, Scottish Landowners Federation and Scottish Gamekeepers' Association) urges shooters to use non-toxic shot over wetlands of importance to feeding waterfowl in order to avoid contamination by lead where game and pests are being shot.
19. As responsible shooters will already be using non-lead shot in wetland areas, it is not considered that the regulations will impose a significant additional burden.
Costs for business
20. The proposals aim to prohibit shooting with lead cartridges only in specified circumstances and it is not considered that there will be a significant effect for either manufacturers or retailers who trade in shotgun cartridges. Those who choose not to manufacture or sell alternatives to lead shot will continue to have a significant trade in lead shot for the many types of shooting which will not be affected by the legislation. Those who choose to manufacture or sell alternative shot will have a guaranteed market.
21. The proposed legislation is not expected to have a significant impact on other businesses in Scotland that rely directly or indirectly on shooting.
22. Manufacturers and retailers of shotguns will continue to have a market in the same way as shotgun cartridge manufacturers and retailers above.
23. Clay target shooting ranges would only be affected if the range was within or immediately adjacent to a wetland area. A small number of infrequently used ranges in Scotland may fall into this category.
24. Shooting sports contribute to the wider rural economy of Scotland, with shooting enthusiasts travelling across Scotland and indeed from outside Scotland to pursue their hobby. As the legislation will only affect those areas where responsible shooters use non-toxic shot anyway, it is not expected that there will be any reduction in the number of shooters participating in Scotland and therefore no effect on the rural economy.
25. It is considered that there will be marginally increased costs for the enforcement agencies and the courts. There are 93 (incl. MOD Police) Wildlife Crime Officers (WCOs) who are responsible for co-ordinating enforcement of wildlife legislation. Reports from England following legislation to restrict the use of lead shot indicate a high level of compliance with the regulations, with few potential offences reported to the police and no court action taken. The Government therefore considers that the enforcement of these regulations will not add significantly to the work of WCOs so no additional staff costs for enforcement will be necessary.
26. Research has shown that wild birds die in Scotland as a direct result of lead pellet ingestion. Such findings are consistent with international research into the same problem. Wildfowl are at particular risk from lead poisoning as they take in grit to aid their digestion and where spent lead shot is deposited on wetlands, they can ingest shot with the grit. The lead in the spent shot remains in the affected bird's gut slowly poisoning it and if enough lead is swallowed the bird will die from lead poisoning. Additionally, lead can be passed through the food chain, threatening other species which hunt and scavenge over wetlands.
27. The regulations will benefit those species most at risk from poisoning, such as swans, ducks and geese, by reducing the deposition of lead shot in the areas where such species occur. As lead both kills and adversely affects fertility, there is the possibility that reduced lead input into wetland areas could increase the population of waterfowl, thus increasing the sport available to shooters and the income to the businesses that rely on them.
28. The approach taken will fully meet Scotland's obligations under the African-Eurasian Waterbird Agreement (AEWA) by protecting all wetland areas but not unnecessarily restricting those shooting outwith these areas and will contribute to reducing the level of lead in the environment.
29. The Nature Conservation (Scotland) Bill will introduce a new duty for all public bodies, including the Scottish Executive, to further the conservation of biodiversity in carrying out their functions. Biodiversity is the variety of plants, animals and other living organisms that exist on Earth. The proposed regulations are consistent with this new duty.
30. The draft enforcement provisions were informed by the responses to the general consultation exercise in 2001. Accordingly, the draft regulations provide that only the police will have enforcement powers in Scotland, which is further substantiated by the fact that, to date, only the police have enforced the Regulations in England.
31. A Great Britain-wide consultation was undertaken on draft regulations, April-May 1999. A Scottish consultation exercise was undertaken on limiting lead shot deposition in wetlands between July and October 2001. Over 60 organisations and individuals responded to this exercise, and these responses have informed the Regulatory Appraisal and attached draft Scottish Statutory Instrument.
32. The Scottish Executive will consider the need for a formal review, following implementation, in due course.
33. The proposed approach is seen as the response most suited to Scotland on the issue of lead poisoning of waterfowl by spent lead gunshot. Scotland, as part of the UK, has an international commitment to endeavour to phase out the use of lead shot over wetlands and the Deputy Minister for the Environment and Rural Development has decided that regulations should be introduced to ensure the protection of waterfowl from lead poisoning.
I have read the Regulatory Impact Assessment and I am satisfied that the benefits justify the costs".
Signed by the responsible Minister
Contact Point. Angela McTeir. Wildlife & Habitats Division. SEERAD. Area 1-H South , Victoria Quay, Edinburgh. EH6 6QQ.
TEL: 0131 244 4415.
C. The Scottish Executive Consultation Process
Consultation is an essential and important aspect of Scottish Executive working methods. Given the wide-ranging areas of work of the Scottish Executive, there are many varied types of consultation. However, in general Scottish Executive consultation exercises aim to provide opportunities for all those who wish to express their opinions on a proposed area of work to do so in ways which will inform and enhance that work.
While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body. Consultation exercises may involve seeking views in a number of different ways, such as public meetings, focus groups or questionnaire exercises.
Typically, Scottish Executive consultations involve a written paper inviting answers to specific questions or more general views about the material presented. Written papers are distributed to organisations and individuals with an interest in the area of consultation, and they are also placed on the Scottish Executive web site enabling a wider audience to access the paper and submit their responses 5. Copies of all the responses received to consultation exercises (except those where the individual or organisation requested confidentiality) are placed in the Scottish Executive library at Saughton House, Edinburgh (K Spur, Saughton House, Broomhouse Drive, Edinburgh, EH11 3XD, telephone 0131 244 4552).
The views and suggestions detailed in consultation responses are analysed and used as part of the decision making process. Depending on the nature of the consultation exercise the responses received may:
indicate the need for policy development or review
inform the development of a particular policy
help decisions to be made between alternative policy proposals
be used to finalise legislation before it is implemented
If you have any comment about how this consultation exercise has been conducted, please send them to:
Miss Angela McTeir
Scottish Executive Environment & Rural Affairs Department
Area 1-H South, Victoria Quay
(1) 1990 c.43. Section 140(3)(c) was amended by S.I. 1999/1108. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c.46).
(2) The Advisory Committee on Hazardous Substances was established by S.I. 1991/1487.
(3) as amended by the Protocol known as the Paris Protocol done at Paris on 3rd December 1982 and the amendments known as the Regina Amendments adopted at the Extraordinary Conference of the Contracting Parties held at Regina, Saskatchewan, Canada, between 28th May and 3rd June 1987.
(4) The Ramsar Convention provides a detailed "Classification System for Wetland Types", which can be referred to for further guidance as to what constitutes a wetland.