Section 23 Emergency Control Measures
1 Statutory powers to kill wild deer on an owner’s land were first introduced in Scotland as war time measures during the First and Second World Wars. Fuller powers were subsequently included in the Agriculture (Scotland) Act 1948. These included the power of the Secretary of State for Scotland to respond to complaints of damage by deer by authorising reductions in deer numbers “on the land of any owner who has failed to take reasonable steps to control the number of deer on his land”.
2 The Secretary of State’s compulsory control power under the 1948 Act was then replaced by the Deer (Scotland) Act 1959, which gave the Red Deer Commission (RDC) two types of control powers. One of these powers, s.6 ‘Power of Commission to deal with marauding deer’, was a short term measure to reduce deer numbers on “particular” land in response to damage. The other power, s.7 ‘Control Schemes’, was a wider measure to reduce deer numbers at a “locality” scale to reduce damage.
3 These two types of powers were continued in the Deer (Scotland) Act 1996. Thus, s.6 was succeeded by s.10 ‘Emergency Measures to prevent damage by deer’ and its associated s.11 ‘Application of section 10 in relation to the natural heritage’, while s.7 was succeeded by s.8 ‘Control Schemes’ and its necessary precursor, s.7 ‘Control Agreements’.
4 These two control powers in the 1996 Act, s.10 and s.8, remain the current legislation. This Section considers the history and development of the terms of s.10 and the extent to which the power has been used. Section 24 then considers s.8.
23.1 Section 6 of the Deer (Scotland) Act 1959
23.1.1 Legislative History of s.6
5 In the 1959 Act, s.6 ‘Power of Commission to deal with marauding deer’ provided in s.6(1) that, subject to its other provisions: “where the Commission are satisfied that red deer are coming on to any agricultural land or woodland or garden ground and are causing substantial damage to crops, pasture or animal or human foodstuffs, or trees on that land, and that the killing of the deer is necessary for the prevention of further damage as aforesaid, they shall authorise...any person who in their opinion is competent to do so to follow and kill on any land mentioned in the authorisation such red deer as appear to that person to be causing the damage”.
6 Amongst the other provisions, s.6(2) required that the RDC must first consult the person with the right to kill deer on the particular land involved and not issue an authorisation if that person agreed to carry out the necessary culling. In s.6(4), any authorisation that was issued was limited to a period “not exceeding 14 days”.
7 The only amendments to s.6 before the 1959 Act was replaced, were through the Deer (Amendment) (Scotland) Act 1982. It substituted s.6(1) with a revised s.6(1) that covered both red deer and sika deer, and re-structured the provisions into sub-paragraphs. The only other change by the 1982 Act to s.6 was to increase the period of the authorisation to “not exceeding 28 days”.
8 The 1982 Act also, however, introduced a new s.6A ‘Further power of Commission to deal with marauding deer’. This gave powers to the RDC in much more succinct terms than s.6, to control deer species other than red or sika deer causing damage to agricultural land or woodland. There is no record available of whether s.6A was ever used by the RDC, but the Group considers it unlikely. The section was repealed when s.6 was replaced by s.10 in the Deer (Scotland) Act 1996, which covers all species of deer.
23.1.2 Use of s.6 of 1959 Act
9 At the time of the 1959 Act, there was relatively widespread marauding by red deer in the Highlands and the RDC immediately started to make relatively extensive use of s.6 authorisations in response to complaints of marauding.
10 Figure 50 shows the number of cases where s.6 authorisations were used to control marauding red deer in each year during the 30 year period 1960 to 1989. The second column in the table shows the number of reported cases where the RDC used its own staff to carry out an authorisation under s.6. The third column shows the number of s.6 authorisations issued to estates and farms to control marauding deer out of season on unenclosed land.
11 The third column does not start until 1962/63 as the new close seasons for red deer introduced by s.21 of the 1959 Act, did not come into effect for three years. At that point, while s.33(3) of the 1959 Act retained the 1948 Act right of occupiers of enclosed agricultural land and woodland to kill red deer on that land at any time of year, the introduction of the close season meant no-one could kill red deer on unenclosed land during the close season without an authorisation. A s.6 authorisation to control marauding red deer was therefore the only way that red deer could be shot out of season on unenclosed land.
12 Figure 50 shows that the number of reported cases dealt with by RDC staff under s.6 declined significantly over the 30 year period cover. There were an average of 66 cases per year during the 1960s, 24 cases per year during the 1970s and 6 cases per year during the 1980s. Correspondingly, the number of deer killed each year by the staff declined from several hundred a year to a few dozen.
13 The number of s.6 authorisations issued to owners and occupiers for out of season control of marauding deer on unenclosed land between 1960 and 1989 reduced after the first few years and then stayed relatively constant, before the start of an increase in the final years shown in the table. That increased continued with the number of these s.6 authorisation being 93, 95 and 183 in the final three full years of the 1959 Act to 1995/96.
14 This reduction in culls by RDC staff while the number of s.6 authorisations to estates increased, reflected a reduction in the number of complaints received by the RDC. This was considered to be because improved “venison prices have meant farmers, crofters and foresters have tended to kill the marauding deer themselves rather than seek RDC assistance”. The reduction in RDC staff carrying out s.6 authorisations did not reflect a reduction in serious damage by marauding red deer or in calls for action to tackle the problems. This is illustrated by the extract below from a House of Commons Select Committee report in 1990 on Land Use and Forestry:
197 ...More serious problems are associated with the open-hill [deer] population, with bad management practices resulting in over-population, damage to neighbouring properties and the environment. The expansion of this population is resulting in the necessity for expensive deer fencing to protect tree planting over an increasing area and the invasion and colonisation of existing plantations, with consequent problems.
198 The RDC’s evidence to the Committee clearly indicated that the present position is unacceptable. Their efforts over many years have produced little sign of any improvement and we endorse their conclusion that “a lack of statutory power to enforce cull levels is seen as a handicap in reducing overall numbers”.
|Year||RDC staff cull (no. of cases reported)||Out of season authorisations (no. of estates/farms)|
Source: Callander and MacKenzie (1991)
23.2 Sections 10 and 11 of the Deer (Scotland) Act 1996
23.2.1 Legislative History of ss.10 and 11
15 The 1959 Act was, as discussed previously, replaced through a two stage parliamentary process. The 1959 Act was first amended by the Deer (Amendment) (Scotland) Act 1996 and then a consolidation exercise was carried out to incorporate those and previous amendments to the 1959 Act, into a new principal Act - the Deer (Scotland) Act 1996.
16 Prominent changes made by the Amendment Act to the 1959 Act were modernising the RDC into the DCS and adding public safety and the natural heritage to the interests that could be protected under powers in the 1996 Act.
17 In the Amendment Act, s.4 amended s.6 of the 1959 Act, including changing the section’s name (‘side note’) to the current ‘Emergency measures...’ to avoid the use of ‘marauding’ in the Act. This was done on legal advice about the difficulty of defining marauding.
18 Section 4 of the Amendment Act also amended the provisions of s.6 by substituting s.6(1) with a new s.6(1) incorporating the following changes so that the text:
- Covered all species of deer;
- Included the protection of public safety;
- Removed the restriction in the 1959 Act so that it had only applied to deer “on any agricultural land, woodland or garden ground”, because public safety issues are not confined those types of land (nor natural heritage damage, as dealt with separately in s.5 of the Amendment Act as discussed below); 
- Changed ‘forestry’ to ‘woodland’ to reflect the fact that government forestry policy was encouraging multi-purpose woodlands rather than simply commercial forest. A definition of woodland was also added to the Interpretation section.
- Added the requirement that s.6 could only be used by the RDC/DCS if “none of their other powers is adequate to deal with the situation”. The justification for this was explained in terms of the “new greatly strengthened powers for control agreements being introduced by the Act, together with greater flexibility for authorising out of season shooting”.
19 The last addition above was a concession to pressure in the House of Lords during the passage of the Amendment Bill. The change was seen as clarifying, given the new provisions for separate out of season authorisations in particular, that s.6 powers would be “powers of last resort (in keeping with their emergency nature)”.
20 The only other change made to s.6 was to add a new sub-section (now s.10(5) in the 1996 Act) to allow deer to be taken or removed from land (rather than shot), when that is the most appropriate means of protecting public safety.
21 The Government had also intended to add the protection of the natural heritage to s.6, but there was opposition in the Lords to that approach. This resulted in the use of s.6 powers to protect the natural heritage being treated separately in s.5 of the Amendment Act. As a result, ss.4 and 5 of that Act then became ss.10 and 11 in the Deer (Scotland) Act 1996.
22 The opposition was from peers, who nearly all declared their interest as owner of a deer forest in Scotland. They were concerned that including the protection of the natural heritage in s.6 of the 1959 Act and thus the 1996 Act, would allow those powers to be used to carry out drastic reductions in red deer numbers in deer forests. A particular concern was the way that the natural heritage and new definition of ‘woodland’ in the Act might be used to regenerate native woodlands.
23 The Government amendment to address this concern of the peers created a new s.5 in the Amendment Bill that would then become s.11 in the 1996 Act. The Government’s amendment was passed on 2nd April 1996 and the parliamentary record of the amendments passed that day includes a note on each amendment, with the background to the new s.5 summarised as:
“On agricultural, forestry and enclosed natural heritage land it is not acceptable that deer should be causing damage on land where they have no right to be or are not the primary land use. But unenclosed natural heritage land may form part of the deer range where deer may be a primary land use and damage is likely to be habitual, long-term and predictable. The use of emergency powers to tackle this would be inappropriate.”
24 Since the 1996 Act was passed, there have been limited amendments to ss.10 and 11. Two of these changes were the addition of new sub-sections (4A) and (4B) to s.10 in 2006 to allow for electronic communication and the replacement of the DCS by SNH in 2010 in ss.10 and 11 (and the Act generally). The only other changes to date were through the Wildlife and Natural Environment (Scotland) Act 2011 (‘the WANE(S) Act’). It removed “serious” from in front of “damage” in both sections (and the Act generally) and added deer welfare to the interests in s.10(1) that can be protected.
25 The removal of ‘serious’ by the WANE(S) Act 2011 was intended to remove the inconsistencies in the 1996 Act over the use of ‘damage’ and ‘serious damage’ and end the ambiguity of the distinction between serious damage and damage. In particular, the intention was to avoid the risk of a challenge over the distinction if SNH was to implement a s.8 control scheme.
26 The Group considers that the need to add ‘deer welfare’ to the interests that can be protected under s.10 and the terms in which the addition was expressed, strengthen the case discussed earlier in the Report for a consistent, inclusive statement of the interests that can be protected under each of SNH’s regulatory powers (ss.5, 6A, 7, 8, 10, 11, 18), to remove the current inconsistencies and anomalies.
27 However, the Group considers that the treatment of the natural heritage in ss.10 and 11 is a particular issue that needs to be addressed. As it stands, s.11 ‘Application of section 10 in relation to the natural heritage’ provides that:
“Section 10 of this Act shall apply in relation to the natural heritage as it applies to woodland, where SNH is satisfied that deer are causing damage to the natural heritage -
(a) on enclosed land; or
(b) on unenclosed land, but only if SNH is also satisfied that the damage is being caused by reason of the presence on the land in question of a significantly higher density of deer population than is usual in all the circumstances.”
28 The Group considers that the ‘higher density’ requirement in s.11(b), while its meaning in practice would be unclear, is an inappropriate threshold to set for the protection of the natural heritage on unenclosed ground. The case made for the inclusion of this threshold in the House of Lords is based on a number of incorrect presumptions illustrated by the description of its origins above.
29 The Group considers that the questions in any situation involving the natural heritage should not be about the density of deer and whether it is higher than normal. The questions should be whether there is evidence of damage to the natural heritage and whether that damage is judged sufficient in terms of the value of the particular aspects of the natural heritage involved to warrant the use of s.10 powers, all factors considered.
30 The Group considers that s.11(b) and thus s.11 should be repealed and the natural heritage incorporated with all the other interests in s.10(1). This could be done by inserting a new sub-paragraph in s.10(1) using the same terms for the natural heritage as elsewhere in the Act (e.g. s.5(6)). For example:
10(1)(a)(iia) are causing damage, directly or indirectly, to the natural heritage generally.
31 The Working Group recommends that section 10(1) of the Deer (Scotland) Act 1996 Act should be amended to include damage, directly or indirectly, to the natural heritage and that section 11 of the Act should be repealed.
32 The other provision that was also included by the Government to further reassure those peers opposed to revised powers in the Deer (Amendment) (Scotland) Bill during its passage through House of Lords, became in the 1996 Act s.10(1)(b) “that none of their other powers is adequate to deal with the situation ”.
33 As noted above, the justification for this was explained in terms of the “new greatly strengthened powers for control agreements being introduced by the Act, together with greater flexibility for authorising out of season shooting”. However, that might only be considered the case to a limited extent. For example:
- The development of voluntary control agreements from a paragraph in the 1959 Act to a section in the 1996 Act, was an elaboration not a strengthening of the provisions. The two measures, s.7 and s.10, are also of a very different character. The short term nature of s.10 powers on particular land contrast with the longer term, voluntary nature of s.7 agreements that may involve more than one owner or occupier. As described below, s.10 powers may also be used within the area covered by a s.7 agreement.
- The new arrangements introduced for out of season authorisations in the 1996 Act replaced the use previously made by land owners of s.6 of the 1959 Act as the only means of shooting deer on unenclosed land out of season. However, that does not replace the need for a short term control power to tackle damage where needed.
34 The Group considers that the ambiguity and restriction of s.10(1)(b) should be removed by being repealed. The question with s.10 should not be whether it is the only power that is sufficient, but whether it is the most appropriate power in the circumstances.
35 While the use of s.10 can result in direct intervention on an owner’s land, the person with the right to kill deer on the particular land involved is given the opportunity through s.10(2) to address the issue themself. In addition, as illustrated below, the use of s.10 powers can be part of a collaborative approach to addressing an issue over damage by deer.
36 The Working Group recommends that section 10(1)(b) of the Deer (Scotland) Act 1996 should be repealed.
23.2.2 Use of ss.10 and 11
37 The Deer Commission for Scotland (DCS) was established by the 1996 Act and used s.10 in the majority of the 14 years before it was replaced by SNH in 2010. During the first half of that period to 2002/03, the DCS appears to have used s.10 on 16 occasions with all the uses involving the control of red deer. The uses were mainly to protect agriculture, but also included the protection of woodland.
38 The thirteen locations where the DCS used ss.10 and 11 during the second half of that 14 year period are shown in Figure 49. The number of times that s.10 was used was greater than the number of locations. This was because repeated use was made of s.10 at Caenlochan over the winter in 2006/07, to extend the period of control for several of the s.10 authorisations there beyond the 28 day limit on each use. As shown in Figure 51, the Caenlochan area was also already covered by a s.7 agreement.
39 In 2003/04, the DCS made the only apparent use to date of s.11 to protect the natural heritage. While the reason for that use at Glenfeshie is described in Figure 51 as woodland, the protection of the natural heritage is also listed as part of the purpose at the Caenlochan sites.
40 All the uses of ss.10 and 11 shown in Figure 51 involved the control of red deer, except the uses for public safety in 2004/05 and 2008/09 which involved controlling fallow and roe deer. Both those cases involved night shooting and s.10 was only used because it was not possible to authorise night shooting under s.18(2) for public safety until that was changed by the WANE(S) Act 2011.
41 Figure 51 shows that six of the twelve uses of s.10 were under s.10(2) and the other six under s.10(4). All uses of s.10 require the deer authority (DCS/SNH) to write under s.10(2) to the person with the right to kill on the land involved asking them to undertake the required cull. If that person is unable or unwilling to carry out the cull, s.10(4) is then used to authorise someone else to implement it.
|s.10(4)||Atholl (Dunkeld||2005||Public Safety|
|s.10(4)||Invercauld (Glenshee)||2007||Caenlochan s.7|
|s.10(4)||Invercauld (Glencallater)||2007||Caenlochan s.7|
|s.10(4)||MOD Machrihanish Airfield||2009||Public Safety|
Source: SNH Information Response 11
42 Under s.10, the owner of the land involved has no liability for the costs of a cull carried out under s.10(4). Instead, s.10(10) provides that the deer authority (DCS/SNH) can sell or otherwise dispose of any carcase killed or taken under a s.10(4) authorisation. This contrasts with a s.8 control scheme under which, if the deer authority has to carry out the measures required, it can charge a land owner for any net costs after the sale of any venison.
43 The Group’s view is that consideration should be given to amending s.10 to be the same as s.8, so that the deer authority can charge any net costs for carrying out s.10(4) measures. The Group considers that, if a land owner declines the option of carrying out the measures themselves after a request made under s.10(2), it would be reasonable that the owner should have a liability for any net public expenditure involved in implementing the measures.
44 The introduction of a liability for net costs might help incentivise owners to take action under s.10(2), rather than being able to leave SNH to cover the costs by using s.10(4). While the use of a s.10 is limited to 28 days and there may be no significant net costs in some situations, other situations can involve the repeated use of s.10(4) to address the issues involved. The Group considers that, if a liability for net costs is introduced, SNH should have the scope to waive the net costs. This might be, for example, because the net costs are too low to warrant charging or because the situation is one where it might not be clear which owner or owners should be liable for the net costs.
45 The Working Group recommends that the Scottish Government should consider amending Section 10 of the Deer (Scotland) Act 1996, so that the owners of land where Scottish Natural Heritage implements measures under section 10(4) have a liability for any net cost involved in carrying out the measures, subject to scope for Scottish Natural Heritage to waive any net cost in appropriate circumstances.
46 Assistance provided by SNH through s.12 already has to be charged for unless Scottish Ministers give consent for the charges to be waived. If the charges are waived, this can give rise to issues over European state aid rules. These issues do not arise where the assistance is provided as part of regulatory action under s.10. While the DCS did make some very limited use of s.12 to provide equipment, SNH has made no use of s.12.
47 The two ways that ss.10 or 11 are viewed are illustrated by a paper setting out SNH’s decision-making process if ss.10 or 11 are being considered. This includes two entries for ss.10 and 11. One describes ss.10 and 11 as a mechanism to allow a collaborative approach to damage by deer or a public safety issue, while the other entry refers to SNH staff taking regulatory action measures.
48 While the DCS did not use ss.10 or 11 in its final year before it was replaced by SNH in 2010, SNH had not used either section by the time of its report on deer management in Scotland to the Scottish Government in 2016. The use of ss.10 and 11 was also not identified amongst the possible actions that SNH planned to take as part of its “enhanced approach to deer management” following the Cabinet Secretary’s response to SNH’s 2016 report.
49 SNH’s first use of s.10 started in 2018 in part of the Carse of Stirling, where high numbers of red deer were causing increasing damage to agricultural crops, forestry and the natural heritage. The area involved includes SNH’s Flanders Moss National Nature Reserve covering over 800 hectares. The Moss is designated as an SSSI and Special Conservation Area, as one of the largest lowland raised bogs in Britain and one of the most intact raised bogs in Europe.
50 SNH’s recourse to s.10 in the Carse of Stirling followed three years during which an increased culling effort by local landowners and occupiers had failed to reduce the red deer population. SNH has used both s.10(2) and s.10(4) as part of facilitating cross-boundary, out of season and night shooting in the area, with the aim of achieving a significant increase in coordinated deer control across the area over three years to reduce the red deer numbers. With the 28 day limit on the use of s.10, SNH issued successive s.10 notices on a monthly basis from November 2018 to the end of March 2019.
51 The Group was surprised that SNH has not made more use of s.10 since it became the deer authority in 2010. The Group recognises the benefits of achieving reductions in deer damage without the use of regulatory powers. However, the Group considers that s.10 is an effective short term measure that can provide impetus to addressing issues by giving land owners the option of carrying out required culls under s.10(2) backed up by SNH’s potential use of s.10(4). The Group considers that SNH should be making fuller use of s.10 as part of improving deer management in Scotland.
52 There are only two control powers in the 1996 Deer Act, s.10 Emergency Measures and s.8 Control Schemes. The readiness with which s.10 can be used as a short-term power to tackle situations involving damage by deer, contrasts markedly with the protracted processes involved in a s.8 control scheme. The requirements of a control scheme make implementing one a power of last resort and there has not been a control scheme in the 60 years since the power was first introduced in 1959. Control schemes are discussed in the following Section, while the use of s.10 is discussed further in Part Six.
53 In contrast to s.8, s.10 is a versatile short-term power. The Group considers that s.10,amended as recommended above, is a valuable and essential regulatory power to have as part of Scotland’s deer legislation. The Group considers that it is no longer appropriate to label s.10 as ‘emergency measures’. That title might be seen as a legacy of the origin of the power to deal with marauding red deer. However, the current and potential use of s.10 is much broader than situations that might be reasonably regarded as actual emergencies.
54 The Group considers that, for accuracy and clarity, ‘Emergency Measures’ should be replaced as the tile of s.10. The s.10 power is about short term action and the Group considers that s.10 should be re-titled ‘Control Actions’, in comparison to s.8 ‘Control Schemes’.
55 The Working Group recommends that the title of section 10 of the Deer (Scotland) Act 1996 should be replaced with ‘Control Actions’ or a title similar to that and that the section should be amended to cover public interests of a social, economic or environmental nature.
1 See Section 3.
2 Agriculture (Scotland) Act 1948, s.44.
3 North of the Highland Boundary Fault and west of the eastern edge of the Grampians.
4 RDC Annual Reports.
5 Callander, R. and MacKenzie, N. (1991). The Management of Wild Red Deer in Scotland. Rural Forum, Scotland, p.40.
6 Agriculture Committee Report, ‘Land Use and Forestry’ (House of Commons, 29 September 1990).
7 See Section 3.
8 Deer (Amendment) (Scotland) Bill, Notes on Clauses (House of Commons, 1996).
9 Deer (Amendment) (Scotland) Bill, Notes on Clauses (House of Commons, 1996).
10 Deer (Amendment) (Scotland) Bill, Notes on Clauses (House of Commons, 1996).
11 Deer (Amendment) (Scotland) Bill, Amendments accepted in the House of Lords (House of Lords, 2 April 1996).
12 Lord Pearson of Rannoch illustrated his concern by noting that there were “large areas of deer forest and grouse moor where small trees, shrubs, rowan and birch two or three inches high are in among the heather”, Hansard, 6 March 1996, column CWH69.
13 Deer (Amendment) (Scotland) Bill, amendments accepted in the House of Lords (House of Lords, 2 April 1996).
14 Through the Electronic Communications (Scotland) Order 2006 and Public Services Reform (Scotland) Act 2010 respectively.
15 WANE Bill Committee Stage 1 Report, Summary of Conclusions and Recommendations, paragraph 99.
16 Agriculture Committee Report, ‘Land Use and Forestry’ (House of Commons, 29 September 1990).
17 See Section 3.
18 Deer (Amendment) (Scotland) Bill, Notes on Clauses (House of Commons, 1996).
19 DCS Annual Reports.
20 SNH Information Response 11.
21 Scottish Government website, ‘State aid: guidance’. Guidance to help public sector bodies understand and comply with state aid rules.
22 SNH Information Response 51.
24 For example, letter from SNH to DMGs on 30 August 2017 and update to SNH Board on 7 March 2018.
25 SNH correspondence with DWG (26 May 2019).
26 SNH website, ‘Flanders Moss National Nature Reserve’.
27 SNH correspondence with DWG (26 May 2019).
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