Publication - Independent report

The management of wild deer in Scotland: Deer Working Group report

The final report of the Deer Working Group.

374 page PDF

7.4 MB

374 page PDF

7.4 MB

Contents
The management of wild deer in Scotland: Deer Working Group report
Section 1 Legal Status, Hunting Rights and Regulatory Framework

374 page PDF

7.4 MB

Section 1 Legal Status, Hunting Rights and Regulatory Framework

1.1 Legal Status of Wild Deer

3 In Scotland, wild deer are considered to be ferae naturae in the traditional Latin phrase for animals which are wild by their nature and classified in Scots property law as res nullius. This means that a wild deer is something that is owned by no-one until it is rendered into possession by being killed or captured.

4 In the rest of Europe, while wild deer are res nullius in some countries, there are also countries where the legal status of wild deer is res communis. This means that the deer are owned by the entire community, which in practice is the population of the country involved. There is no country in Europe where wild deer are owned by the owner of the land where they may occur.[26]

5 The concepts of res nullius and res communis date from Roman times, when the distinction was based on res nullius being ‘ownerless property’ that could become owned as property and res communis being something that could not become property, such as air, rivers and seas.[27] However, individual animal species can also be classified as res communis. Figure 2 lists countries in Europe where the legal status of wild deer is res communis and res nullius respectively.

6 The distinction between the deer being ‘owned’ by everyone or no-one can, as Putman has commented, be considered “subtle”.[28] It might be expected, for example, that in countries or legal jurisdictions with a history of res communis, the state may have developed a more direct role in regulating the management of wild deer as the deer are more explicitly seen as a resource to be managed for the benefit of all. However, in res

Figure 2 The legal status of wild deer in some European countries
Wild deer – res communis
Croatia

Finland

Hungary

Italy

Lithuania

Netherland
Poland

Portugal

Romania

Slovenia

Switzerland
Wild deer – res nullus
Austria

Belgium

Czech Republic

England & Wales

Estonia
Germany

Latvia

Norway

Scotland

Sweden
Information collated from: Putman (2011)

nullius jurisdictions where wild deer belong to no-one, the deer are similarly considered to be a national common property resource and the state responsible for ensuring the resource is managed in the public interest.

7 In Scotland, where all wild animals have long been considered res nullius, it is well established that wild deer are “a shared resource for the people of Scotland” and that the Scottish Government and Scottish Parliament have a responsibility for ensuring that wild deer are managed in ways that are in the public interest.[29],

8 Thus, while it might be considered that the Scottish Parliament could legislate to convert wild deer to res communis to assert the public interest in their management, the Group considers that the status of wild deer as res nullius is not an obstacle to achieving the effective deer management required by the Group’s remit.

1.2 Deer Hunting Rights

9 The right to hunt wild deer in some res communis countries is not related to the ownership of land, but is allocated by the state to hunting associations or groups. However, in most European countries, whether the deer are res communis or res nullius, there is some degree of relationship between deer hunting rights and the ownership of land.[31]

10 The nature of that relationship varies in different countries under their respective statutory frameworks governing the use of the hunting rights. In some, while the hunting rights go with the ownership of land, the state sets minimum areas over which deer hunting requires to be managed and owners have to cooperate over the hunting in these ‘game management districts’. In others, the state controls the use of the hunting rights by land owners by setting the culls to be achieved by owners.

11 In Scotland, it had been established by the 18th century that no-one could hunt wild deer over any land without the permission of the owner of the land. This remains the position and deer hunting rights and sporting rights generally go with the ownership of land.[32] The owner’s right is based on the ability to exclude others and is an ancillary benefit of land ownership, often referred to as either a pertinent, incident or privilege of land ownership.The hunting rights are not a distinct property right that can be acquired and disposed of separately from the land, subject to the exceptions discussed below.

12 The limited exceptions in Scotland to sporting rights going with the ownership of land appear to be of two types, both of which derive from Scotland’s history of feudal land tenure. Firstly, there are rare cases where it may have been established in the past through the Courts that the hunting rights over an area of land are held by a different party from the ownership of the land. Secondly, there are situations where this separation has been established through a provision in the Abolition of Feudal Tenure etc. (Scotland) Act 2000.

13 The 2000 Act was amended by the Title Conditions (Scotland) Act 2003, which introduced a new section 65A. This section allowed feudal superiors in certain restricted circumstances to register an appropriate notice before the date for the abolition of feudal tenure (28 November 2004), to establish that they held the sporting rights over land for which they were the superior.[33] If the notice was successfully registered, this created the sporting rights as a separate tenement or property right distinct from the ownership of the land.

14 There were 65 notices successfully registered under s.65A of the 2000 Act.[34] However, there appears no readily accessible information on the extent of land they might cover.[35] It is also not clear if that information will become more transparent when the process of land registration is completed in Scotland in 2024. The Group considers that this separation of the ownership of the deer hunting rights from the ownership of the land could lead to conflicting objectives and work against effective deer management.

15 In the rest of this Report, sporting rights including deer hunting rights are treated as going with the ownership of land. The distribution of deer hunting rights therefore reflects the pattern of land ownership, including the pattern of relatively large scale private land ownership in parts of Scotland.[36]

16 The land owner who holds the deer hunting rights can be considered to be the person who holds the title to the land as recorded in the Register of Sasines or registered in the Land Register.[37] However, statutory definitions of the owner of land in Scots law are usually more complex and, while current, can appear archaic as illustrated by s.45(1) of the Deer (Scotland) Act 1996.[38]

17 While the owners of land have a monopoly over deer hunting rights on their land in Scots property law, the statutory framework regulating the use of deer hunting rights has also given the authority to shoot deer to others without the permission of the land owner. These others are occupiers of land, such as agricultural tenants, and Scottish Natural Heritage (SNH) as the public body responsible for implementing the Deer (Scotland) Act 1996 and associated secondary legislation.

18 In the 1996 Act, many of the provisions refer to land owners and occupiers together.[39] The definition of an occupier in the Act states that ‘“occupier” in relation to any land includes any tenant or sub-tenant, whether in actual occupation of the land or not’.[40] Whether a person is a tenant or not can be established through whether they have a valid lease, for example, for agricultural, forestry or conservation purposes. However, while tenants are clearly included, the definition is unrestrictive because others might count as occupiers in particular circumstances.[41]

19 Land owners can also lease out their deer hunting rights separately to another person as a sporting lease. Historically, until the 19th century, the nature of a land owner’s sporting rights as an incident or privilege of owning the land, meant that the Courts considered that deer hunting rights could not be formally leased under Scots law. However, a case in 1839 started to change this and through other cases it became clearly established that deer hunting rights and sporting rights more generally could be leased.[42]

20 A key test as to whether an arrangement amounts to a sporting lease is whether the lease provides the degree of ‘occupation’ of the land and control over it required to constitute a lease of land.[43] It appears that many arrangements which people refer to as ‘sporting leases’ do not actually constitute a formal lease due to the lack of adequate occupation. These sporting lets or agreements are generally contractual arrangements between parties outwith the scope of the law of landlord and tenant.

21 The Group considers that the longstanding position in Scotland and many other European countries where deer hunting rights, other ‘sporting rights’ and the right to manage wild animals generally go with the ownership of land, is a sound principle on which to base the management of deer and other wild animals. The question with wild deer is the extent to which the right to kill and capture wild deer needs to be regulated to ensure that public interests are adequately safeguarded from damage by deer.

1.3 Regulatory Framework

1.3.1 Background

22 In Scotland at the beginning of the 20th century, there was essentially no statutory regulation of deer hunting rights or the management of wild deer more generally other than having offences for poaching to protect land owners’ property rights. However, as the century progressed, there was an increasing volume of legislation to protect public interests from damage by wild deer.

23 The initial concern was protecting agriculture from damage by marauding red deer in the Highlands. The longstanding issues over this in the 19th century continued into the 20th century, and during the First World War, Parliament passed the Killing Deer (Scotland) Order 1917. This temporary measure gave agricultural occupiers the right for the first time to kill deer on their grazings or on their cropland, subject only to the occupier having a

gun licence.[44] Similarly, during the Second World War, the killing of deer by contractors organised by Agricultural Executive Committees was carried out compulsorily over land under war time measures to produce food and protect agriculture.[45]

24 After the war, the Agriculture (Scotland) Act 1948 included measures related to the protection of agriculture and forestry from damage by wild deer of any species. In the Act, under the cross-heading ‘Prevention of Damage by Deer’, the main sections dealing with deer (ss.43-47) gave the occupiers of agricultural holdings and enclosed woodland the right to kill deer on their enclosed ground at any time of year, and also empowered the Secretary of State for Scotland to reduce deer numbers “on the land of any owner who has failed to take reasonable steps to control the number of deer on his land”.[46]

25 Those powers and other measures in the 1948 Act were the precursors of the modern statutory framework for deer management in Scotland, first through the Deer (Scotland) Act 1959 and then its successor, the current Deer (Scotland) Act 1996.[47] Thus, when the 1959 Act established the Red Deer Commission (RDC): “the main powers and duties already existed under Sections 39-54 of the Agricultural Holdings (Scotland) Act 1948 and had previously been delegated by the Secretary of State to eleven Agricultural Executive Committees. The RDC was therefore essentially a new vehicle for these duties and powers and for the introduction of close seasons”.[48]

26 The 1959 Act set the template for Scotland’s current deer legislation under the 1996 Act, and the evolution of the statutory framework over the last 60 years is briefly outlined below. Annex 3 lists the two principal Acts (1959, 1996), the main amending Acts and the most directly relevant secondary legislation during that 60 year period.

1.3.2 Deer (Scotland) Act 1959

27 The longstanding nature of the issues over the management of wild red deer in Scotland by the time of the 1959 Act, is reflected in the fact that there had been seven government appointed inquiries into red deer between 1872-1954.[49] It was also only protracted negotiations after the last inquiry that led to the 1959 Act, because of the conflicting interests of agriculture and forestry and those of Highland sporting estates.

28 The 1959 Act established the RDC and its general function in the Act of “furthering the conservation and control of red deer” reflected the tensions underlying its creation. [50]

29 The 1959 Act set a number of basic standards including that red deer could only be killed with a firearm, and introduced close seasons for red deer with the power to introduce them for other species of wild deer. The Act also carried forward from the Agriculture (Scotland) Act 1948 the rights of the occupiers of enclosed agricultural land and enclosed woodland to shoot deer at any time of year to prevent damage, while giving the RDC a number of powers. These included the power to require returns from land owners recording the deer they had killed and also the authority to carry out compulsory control measures over an owner’s land to prevent damage or further damage to agriculture or forestry. These control powers covered both short term measures for marauding red deer and wider control schemes where the numbers of red deer in a locality needed to be reduced.

30 In the period of over 35 years before the 1959 Act was replaced by the 1996 Act, the Deer (Amendment) (Scotland) Act 1982 can be considered the only legislation to make significant changes to the 1959 Act. This Act resulted from a Private Member’s Bill introduced through the House of Lords, because of the difficulty of finding government time at Westminster for Scottish deer legislation compared to other priorities.

31 An important part of the impetus for the 1982 Act was to clarify the legal position following recognition that red deer and sika deer were interbreeding to produce hybrids. The Act amended the 1959 Act to expand the RDC’s role to cover all wild deer species, including red/sika hybrids, while also introducing a definition of farmed deer to distinguish them from wild deer. Many of the other amendments made by the Act to the 1959 Act were to refine or update existing provisions. However, new measures included arrangements for authorising night shooting and for licensing venison dealers, as well as the power through secondary legislation to specify the firearms and ammunition that could be used to shoot wild deer.

32 The 1982 Act was then followed shortly afterwards by three pieces of secondary legislation to implement some of its provisions. These were The Deer (Close Seasons) (Scotland) Order 1984, The Licensing Venison Dealers (Prescribed forms, etc) (Scotland) Order 1984 and The Deer (Firearms, etc) (Scotland) Order 1985. The last two of those Orders remain in force.

33 By the end of the 1980s, while the RDC had been advocating a reduction in the number of red deer for 30 years to reduce their impact, the population had doubled and significantly expanded its range by colonising the increasing area of forestry plantations.[51] In addition to continuing issues over damage by deer to agriculture and forestry, there were concerns that the RDC lacked powers to intervene to prevent damage to natural heritage interests and to protect public safety (for example, to deal with deer on airport runways or roads).

34 Following a report from the House of Commons Agriculture Select Committee in 1990, the UK Government agreed to review Scotland’s deer legislation.[52] The Government’s position, however, was that it would only take forward new legislation if the proposals were agreed by all key interests in Scotland. This led to protracted consultations and negotiations between 1991 and 1995. This process included the establishment of the current Deer Management Round Table as a forum involving all the main interest groups. In 1995, as a result of all the detailed discussions, sufficient consensus was reached for the Government to take forward its proposals for changes to the 1959 Act.

1.3.3 Deer (Scotland) Act 1996

35 The Government implemented its proposals through two pieces of legislation: an amending Act followed by a consolidating Act. In 1995, the Government introduced the Deer (Amendment) (Scotland) Bill into Parliament through the House of Lords. This Bill included all the proposed amendments to the 1959 Act and, notwithstanding the previous consensus in Scotland, was subject to a number of amendments of varying significance as a result of the debates in the House of Lords. This Bill subsequently became the Deer (Amendment) (Scotland) Act 1996.

36 The Government also incorporated the agreed Amendment Bill changes to the 1959 Act and all the previous amendments to that Act, into a Deer (Scotland) Bill 1996. This process did not involve making any significant changes to the terms of the legislation. It was an exercise in parliamentary drafting to consolidate all the changes into one Act and replace the 1959 Act with a new un-amended Act for clarity and ease of use.[53]

37 Both Bills received Royal Assent in July 1996. The Deer (Amendment) (Scotland) Act 1996 came into force three months after Royal Assent (i.e. in October), while the Deer (Scotland) Act 1996 came into force one month after the Amendment Act came into force (i.e. in November). At that point in November 1996, the Amendment Act was repealed and the Deer (Scotland) Act 1996 became Scotland’s new primary deer legislation.

38 While the 1996 Act ‘replaced’ the 1959 Act, the changes were simply amendments to the 1959 Act. This approach introduced significant changes, but it was an evolutionary process. The basic structure and composition of the legislation remained the same. Main changes involved the RDC becoming the Deer Commission for Scotland (DCS) with modernised arrangements for the appointment of the Commissioners, and the addition of deer welfare, the natural heritage and public safety to the interests covered by the DCS’s powers. There were also a wide range of other changes of varying significance, from a new arrangement for authorising out of season culling and an expansion of the provisions for voluntary control agreements, down to changes that were simply the result of changes between 1959 and 1996 in the styles for drafting legislation.

39 Since that time, the 1996 Act has been amended by the legislation listed in Annex 3. Some of the changes have been minor consequential amendments (for example, resulting from the Crofting Reform etc. Act 2007 and The Crown Estate Transfer Scheme 2017).[54] Some of the other changes have been significant, but with limited direct impact on deer management (for example, The Electronic Communications (Scotland) Order 2006). Three of the Acts have, however, been more important.

40 The first of those Acts was the Public Services Reform (Scotland) Act 2010, which replaced the DCS with SNH in the 1996 Act. While this was essentially the only change made to the 1996 Act by the 2010 Act, it might be considered to have been a very significant change for deer management in Scotland. The move from having a standalone Commission to the deer legislation being part of the wider wildlife responsibilities held by SNH has inevitably meant some differences in approach, as discussed later in this Report.[55]

41 The other two important Acts were the Wildlife and Natural Environment (Scotland) Act 2011 (‘the WANE(S) Act’) and the Land Reform (Scotland) Act 2016 (‘the LR(S) Act’). These Acts each had seven sections amending the 1996 Act. The changes to the 1996 Act by these two Acts are briefly summarised in Annex 5.

42 The WANE(S) Act further expanded the interests covered in the 1996 Act, including the need to manage deer in urban and peri-urban areas and the inclusive scope for SNH to use its control powers to protect “public interests of a social, economic and environmental nature”.[56] The Act also amended the provisions related to close seasons and made some significant changes affecting the implementation of compulsory control schemes. In addition, new sections were added to provide for a voluntary Code of Practice for Deer Management and enable the establishment of a register of people competent to shoot deer.

43 While the amendments through the LR(S) Act were less extensive than under the WANE(S) Act, they included creating two new powers - the authority in s.40A for SNH to require a return from an owner or occupier of the number of deer they plan to cull and, in s.6A, the authority for SNH to require owners and occupiers to produce a Deer Management Plan for SNH’s approval.

44 As outlined above, the Deer (Scotland) Act 1996 has been modified by relatively numerous amendments since it became law. These amendments are all shown on the only publicly available version of the Act as it currently stands, which is on the legislation.gov.uk website maintained by the National Archives at Kew. While the annotations on the 1996 Act to record the amendments are very valuable for showing when and how changes were made, the extent of the annotations for the Act can be unhelpful in places in trying to follow and understand the actual terms of the current Act.

45 The Group asked the National Archives whether it was possible to ‘switch off’ the annotations on legislation.gov.uk, so that the Group could have a version of the Act that just showed the current terms of the Act. The National Archives, while confirming that this was not an option on the website, agreed that this would be a useful functionality to have and that they would include it in their development plan.[57] The Group therefore produced its own ‘clean’ copy of the Act for its own use. However, at a wider level, it seems surprising as a matter of principle and good practice that those affected by the Act and members of the public more generally are not able to read a version of an Act as it stands online without the technical annotations of all past amendments.

46 The Group considers that the Scottish Parliament should encourage the National Archives to introduce for Acts which the Parliament passes, the functionality of being able to read an Act online without the annotations of past amendments.

1.3.4 Current Framework

47 The two main elements of the current regulatory framework for deer management are:

  • The deer legislation concerned directly with deer as outlined above and consisting of the Deer (Scotland) Act 1996 as amended and the three statutory instruments under its authority: The Licensing Venison Dealers (Prescribed forms etc.) (Scotland) Order1984; The Deer (Firearms etc.) (Scotland) Order 1985: and The Deer (Close Seasons) (Scotland) Order 2011. Responsibility for this deer legislation is devolved to the Scottish Parliament.
  • The wide range of other statutory measures with which deer management interacts, including legislation on animal health and welfare, firearms and food safety. The responsibility for the legislation involved varies from devolved and partially devolved to reserved and also includes European Union regulations in UK law (for example, on game meat).

48 This Report is focused on reviewing the deer legislation, while references will be made to other legislation when appropriate. The Report also reviews the non-statutory arrangements to support the use of the legislation and tailor its implementation to the many different circumstances in which wild deer occur in Scotland.[58]

49 The extent of Scotland’s regulatory framework for deer management is considered relatively limited compared to many other countries. In Putman’s review of the legal and administrative systems governing the management of wild deer and other large herbivores in Europe, he classified the countries he considered into five groups according to their level of government regulation. The UK and Ireland are in the least regulated group.[59] The only other country in that group is Sweden with its long and different hunting traditions.

50 Scotland does have, as Putman recognised, a significantly greater regulatory framework for deer management than in the law of England and Wales. It might also be considered that Scotland’s system to ensure wild deer are managed in the public interest shares many elements with the equivalent frameworks in other European countries, even though it does not have some specific measures that are common to many European countries.[60]

51 The starting point in Scotland’s system based on wild deer as res nullius and hunting rights going with the land, is that an owner of land does not by virtue of being the holder of the deer hunting rights over that land, have any legal duty to manage or control wild deer that may occur on that land.[61] The owner’s only legal requirement is to conform to the statutory regulations governing the management of wild deer.

52 At the time of the WANE(S) Bill, the Scottish Government consulted on a proposal that the owners of land should be given a general statutory duty of ‘sustainable deer management’. However, the Government did not take the proposal further as it recognised that such a duty would be too “unreasonably vague” to be enforceable as an offence and would therefore not meet the standards required by Article 7 of the European Convention on Human Rights.[62] The Government therefore developed a voluntary Code of Practice for Deer Management instead.[63]

53 The proposed statutory duty and the Code of Practice, together with a range of statements and other non-statutory initiatives, all reflect the longstanding concern of government and others to encourage land owners to take a socially responsible approach to managing the wild deer that may occur on their land. The other initiatives are also supported by wider policy statements, such as the Scottish Government’s ‘Land Rights and Responsibilities Statement’.[64]

54 However, as land owners in Scotland only require to conform to the regulatory framework for deer management, it is also the responsibility of Scottish Parliament and Scottish Government to have in place an appropriate regulatory framework and non-statutory arrangements to ensure that there is effective deer management that safeguards public interests and promotes the sustainable management of wild deer.

55 The purpose of the regulatory framework in Scotland has always been to protect public interests. While this has involved setting legal standards for how and when wild deer can be killed to protect the public interest in deer welfare, there have always also been statutory powers to intervene over the level of the culls in particular situations to protect public interests from damage by deer.

56 The scope of those public interests in the legislation has expanded over the decades from the interests of agriculture and forestry to the inclusiveness of “public interests of a social, economic or environmental nature”.[65] However, the approach of the regulatory framework in Scotland continues to be based on only intervening in the culls required on any land where there is evidence of either damage or the risk of damage to public interests.

57 The use of the powers of intervention held by the public authority has always been intended to protect the interests of land owners and occupiers from damage where those interests are considered to be in the public interest, as well as to protect any public interests that are considered to be wholly or largely in the wider public interest.[66] The approach is also intended to avoid placing undue restrictions on the scope for land owners and occupiers to be able to protect their interests themselves, for example, with the powers of the public authority to grant authorisations to land owners and occupiers to cull deer out of season or at night to prevent damage in appropriate situations.

58 In Scotland, a land owner decides how many deer they shoot on their land and the public authority only intervenes in an owner’s cull if there is a need to protect public interests from damage. This approach contrasts with that in some other European countries, where land owners are required to combine in deer management areas and a public authority sets the cull to be taken by an owner each year.[67]

59 The approach in Scotland where a land owner decides how many deer they shoot and the public authority only intervenes to protect public interests from damage is referred to in this Report as the ‘voluntary principle’. This label is an often used but seldom defined term in debates about deer management in Scotland. While Scotland has a wide range of statutory provisions relating to deer management, the key attribute of the ‘voluntary

principle’ is that land owners decide in the first instance how many deer they shoot. This contrasts with ‘statutory deer management’ where the public authority sets the culls that owners should take each year.

60 The approach in Scotland’s regulatory framework of only directly intervening in response to damage or the threat of damage might be considered, as with res nullius and hunting rights going with the ownership of land, to be a basic characteristic of Scotland’s system of deer management.

61 The alternative approaches found in Europe, such as those described above where the public authority sets every land owner’s cull or owners are compelled to group together in deer management areas and the public authority set the culls at that level, would be a profound and disruptive change of approach in Scotland. As a result, their introduction might be considered unworkable. On the other hand, the Group also considers that there is no inherent flaw in having an approach like that in Scotland where there is only direct intervention to prevent damage to public interests.

62 The nature of the approach in Scotland might be considered to owe much to the longstanding political influence of the owners of Scotland’s pattern of large scale private estates, both directly and through the House of Lords on Scotland’s deer legislation prior to devolution. However, the approach is predicated on the view that, with large mobile species like deer whose presence and impacts can vary over short distances relatively quickly, those on the ground should be well positioned to decide the deer that could and should be culled to protect their welfare or prevent damage.

63 With Scotland’s regulatory approach, the carrying capacity of an owner’s land can be considered to be determined by the public interests involved or linked to that land.[68] If the owner’s deer management is avoiding damage or the risk of damage to those interests by wild deer, the owner can be viewed as carrying out socially responsible culls and there will be no direct intervention by the public authority.[69] This reflects that the regulatory framework is not concerned in the first instance with the numbers of deer, but their impacts and whether these might be judged to constitute damage to one or more public interests.

64 The approach in Scotland is thus focused on the individual owners of land as the owners of the deer hunting rights, both in the scope they have to decide the management of the deer that may occur on their land, and as the subject of the regulatory powers if they do not do that in ways that adequately protect public interests.

65 The challenge in Scotland with its approach is, however, to have a statutory framework and associated non-statutory arrangements that actually deliver deer management that adequately protects public interests. The appointment of the Group and its remit reflect that the Government and others do not consider that to be the case at present.

1.3.5 The Primary Legislation

66 Scotland has had a statutory framework governing deer management for 60 years, initially with the 1959 Act and now with the 1996 Act as amended. While the 1959 Act was designed to regulate the damaging impacts of the populations of red deer on the open hills in the Highlands, the substantial increases since then in the numbers and distributions of Scotland’s four species of wild deer have created a very different context.

67 While the provisions of the deer legislation have been amended over the years to try to adapt them to the changing context, there has also been a high degree of continuity in the structure, components and provisions of the 1959 and 1996 Acts during this evolution. As a result and as reflected in parts of this Report, the Group found it very helpful and fairly essential in trying to understand the terms of some of the current sections in the 1996 Act to trace the previous legislative histories of those sections.

68 More generally, the Group does not consider the 1996 Act to be a straightforward piece of legislation to understand. Its origins in the 1959 Act and the extent of amendments since 1996 have created anomalies and inconsistencies in the Act which the Group comments on later in appropriate parts of this Report, and there appears limited logic to the order and distribution of some of the Act’s provisions. There is no official guide to the Act available. While the DCS published a guide to the 1996 Act in 1997, that largely focused on explaining the changes being introduced with the new Act. The guide is no longer available and is out of date due to the amendments to the Act since then.

69 The Group supports the general legal principle that people should be able to understand the laws that affect them, as reflected in the aim of the Parliamentary Counsel Office’s guidelines for drafting Scottish legislation: “to draft clear, effective, accessible law which can be easily understood by everyone affected by it.”[70] Deer management should be a relative straightforward topic on which to achieve those aims compared to many subjects. The Group’s view, however, is that the 1996 Act fails those tests and as discussed later in the Report, should be considered as due to be replaced.

70 A simple, albeit minor, improvement to the 1996 Act in this context would be to replace the references to three redundant identities that still occur in the Act. These redundant identities are: (a) the Deer Commission for Scotland; (b) the Secretary of State; and (c) the Houses of Parliament. These are explained in the following sub-paragraphs:

(a) Deer Commission for Scotland: Despite the Public Services Reform (Scotland) Act 2010 replacing the DCS with SNH, the Commission still appears in three section titles in the 1996 Act (s.1 The Deer Commission for Scotland; s.12 Power of Commission to...; s.40 Power of Commission to...). This results from shortcomings in the drafting of the 2010 Act. In amending the 1996 Act, Schedule 1 paragraph 6 of the 2010 Act states “For “the Commission” and “the Commission’s” ...substitute respectively “SNH” and “SNH’s”.” However, this did not cover the wording in the three titles quoted above with the DCS in full and “of Commission”. The titles therefore remained part of the current law.

(b) Secretary of State for Scotland: In the 1996 Act, the Secretary of State and Scottish Ministers are each mentioned many times in a wide range of sections in the Act, including in the same sections (for example, ss.4 and 40). This has resulted from the Scottish Parliament using Scottish Ministers in its amendments to the Act since devolution, but not replacing any of the other references to the Secretary of State. There is no legislative or parliamentary reason why this could not have been done. It could be done by the simple type of amendment used in 2010 to replace the DCS (for example, ‘For “Secretary of State”...substitute “Scottish Ministers”’).

(c) Houses of Parliament: The two references to the Houses of Parliament in the 1996 Act quoted below could also be straightforwardly replaced with “the Scottish Parliament”:

s.21 ‘Firearms and Ammunition’ in (4) “...approved by a resolution of each House of Parliament.”

s.47 ‘Orders, regulations etc.’ in (1) “...a resolution by either House of Parliament.”

71 Parliamentarians, solicitors, government officials and a range of others may read the Act knowing the correct identities. However, the correct position may not be so apparent to others with an interest in the deer legislation. For example, with s.21 and its title of ‘Firearms and Ammunition’, someone might consider that the references to the Secretary of State and Houses of Parliament are still accurate as firearms legislation is still reserved to Westminster, when in fact the powers in the section are devolved to the Scottish Parliament with the rest of the 1996 Act.[71]

72 The Working Group recommends that the Scottish Parliament should amend the Deer (Scotland) Act 1996 to replace the references in the Act to the Deer Commission for Scotland, Secretary of State and the Houses of Parliament with Scottish Natural Heritage, Scottish Ministers and the Scottish Parliament respectively.

73 In the rest of this Report, many of the sections of the 1996 Act are discussed and a copy of the Table of Contents from the Act is included in Annex 4 for ease of reference. While the Act originally had 48 sections, three have been repealed and seven have been added to give 52 current sections.[72]

74 The most recent section to be repealed was s.28 ‘Power of Arrest’ in January 2018. While the terms of that section had remained very largely unchanged since 1959, the current power of arrest in Scots law is now defined in the Criminal Justice (Scotland) Act 2016. Section 28 is or was one of 10 sections in the Act concerned with criminal justice considerations, most of them under an ‘Enforcement’ cross-heading in the Act.[73] The Group did not consider the terms of the remaining nine criminal justice sections in detail as part of its review of the legislation.

Footnotes

1 Putman, R. (2011). A review of the various legal and administrative systems governing management of large herbivores in Europe. In: R. Putman, M. Apollonio and R. Andersen (Eds.), Ungulate Management in Europe: Problems and Practices. Cambridge University Press, Cambridge, pp. 54-79.

2 In modern times, for example, the use of res communis has become associated with global commons such as the oceans.

3 Putman (2011) Op cit, p.55.

4 Gordon, W. and Wortley, S. (2009). Scottish Land Law Volume 1 (Third Edition). W. Green, UK.

5 SNH (2011). Code of Practice on Deer Management, p. 9.

6 Putman (2011) Op cit.

7 ‘Sporting rights’, in s.65A of the Abolition of Feudal Tenure etc. (Scotland) Act 2000, means “a right of fishing or game”.

8 Reid, K. (2003). The Abolition of Feudal Tenure in Scotland. Bloomsbury Professional, UK.

9 Reid, K. and Gretton, G. (2005). Conveyancing 2004. Avizandum Publishing Ltd., Edinburgh.

10 Registers of Scotland were unable to readily provide this information to the DWG .

11 Glass, J., Mc Morran, R. and Thomson, S. (2019). The effects associated with concentrated and large-scale land ownership in Scotland: a research review. Scottish Land Commission, Inverness.

12 Person in the sense of a legal person, whether people or a body with legal identity.

13 s.45(1) of the 1996 Act includes the same interpretation of ‘owner’ as it predecessor, the Deer (Scotland) Act 1959 - “”owner” in relation to any land includes any person who under the Land Clauses Acts would be enabled to sell and convey the land to promoters of an undertaking”. If one then refers to the Interpretation Act 1978, it clarifies that ‘Land Clauses Acts’ mean “in relation to Scotland, the Land Clauses Consolidation (Scotland) Act 1845 and the Land Clauses Consolidations Acts Amendment Act 1860 and any Acts for the time being in force amending those Acts”.

14 The main exceptions appear to be s.26 on specific rights of occupiers and ss.41(1) and 42 concerning aspects of the relationship between land owners and occupiers.

15 s.45(1) of the 1996 Act.

16 Rennie, R., Brymer, S., Mullen, T., Blair, M. and McCarthy, F. (2015). Leases. Scottish Universities Law Institute. W. Green, UK.

17 Callander, R. and MacKenzie, N. (1991). The Management of Wild Red Deer in Scotland. Rural Forum, Scotland.

18 In Scotland, while leases over 20 years have to be registered, the duration of leases can be up to 175 years. Long sporting leases for deer hunting can give rise to issues due to changing statutory requirements affecting deer management.

19 Callander and MacKenzie (1991) Op cit and also Ritchie, J. (1920), The influence of man on animal life in Scotland, Cambridge University Press, Cambridge.

20 Callander and MacKenzie (1991) Op cit.

21 Agriculture (Scotland) Act 1948, s.44(1)(b).

22 Other measures in addition to occupiers’ rights and Secretary of State’s control powers included: the right of the Secretary of State to recover expenses from control operations; the right of the Secretary of State to incur expenditure assisting culls to reduce numbers; statutory cull returns; a prohibition against night shooting; and a close season (10th Feb. to 16th Oct.), during which the Secretary of State could not authorise an occupier to cull deer on unenclosed land.

23 Callander and MacKenzie (1991) Op cit, p.39.

24 The inquiries and their main findings are listed in Callander and Mackenzie (1991) Op cit, Appendix A.

25 Deer (Scotland) Act 1959, s.1(1).

26 The RDC estimated at that time that 10% of the estimated 300,000 red deer in Scotland lived in forestry (Scottish Development Department, 1990, The Scottish Environment – Statistics, Government Statistical Service, Edinburgh).

27 House of Commons Select Committee on Agriculture (1990). Land Use and Forestry: HC16 (89-90). HMSO, London. Also in Callander and MacKenzie (1991) Op cit.

28 Hansard, House of Lords, 21 March 1996, col. 1412-1460, Earl of Lindsay.

29 The Crown Estate Transfer Scheme 2017 was a statutory instrument of the Westminster Parliament.

30 See Part Five.

31 Deer (Scotland) Act 1996, s.7(1)(a)(ia).

32 DWG correspondence with the National Archives, April 2018.

33 See Part Five.

34 Putman (2011) Op cit.

35 Examples of features shared with Scotland include permitted hunting methods, firearms and ammunition, close seasons, cull returns, and venison handling arrangements. Examples of other common features elsewhere include a formal qualification for hunters, the mandatory organisation of landholdings into ‘game management districts’ and either the setting of cull levels by a public authority or the formal approval of planned culls by a public authority. See Putman (2011) Op cit.

36 In theory, a land owner could potentially be subject in extreme circumstance to a private law action by a neighbour for the delict (or civil wrong) of nuisance (i.e. forcing them to put up with an activity that is beyond what they can reasonably be expected to tolerate).

37 Rural Affairs and Environment Committee (2010). Wildlife and Natural Environment (Scotland) Bill, Stage 1 Report, Paper RAE/S3/10/R8, para 559.

38 See Section 25.

39 Scottish Government (2017). Land Rights and Responsibilities Statement.

40 Deer (Scotland) Act 1996, s.7(1)(a)(ia).

41 These private interests include agricultural production, forestry management, enhancing the natural heritage and other interests. The direct public interests might include, for example, intervening to protect a site designated because of the national importance of its natural heritage. See also Part Three.

42 Putman (2011) Op cit.

43 Land Reform Review Group (2014). The Land of Scotland and the Common Good. Report to Scottish Ministers. Scottish Government, Edinburgh.

44 There may be a need to distinguish between the impacts of wild deer and other herbivores in some situations, most notably sheep.

45 Parliamentary Counsel Office (2016). Drafting Matters (Second Edition). Scottish Government, Edinburgh.

46 The Group notes in this context that a response that it received from a Scottish public authority to a question about firearms, referred to the Deer Act 1991. That Act only covers England and Wales. However, when the Group used the geographic indicator option on the legislation.gov.uk website, a wide range of sections including the one on firearms were shown as applying to Scotland. The Group therefore contacted the National Archives about this and the website has been corrected.

47 Repealed sections: 28, 38 and 46. Added sections: 5A, 5B, 6A, 17A, 17B, 29A and 40A.

48 Sections: 22, 23, 24, 27, 29, 29A, 30, 31, and 32.


Contact

Email: brodie.wilson@gov.scot