Section 5 Times of year when wild deer can be killed lawfully
1 A basic public interest requirement is that, independent of who might have the legal right to kill wild deer on particular land, there should be adequate statutory provisions in place to ensure that the killing is carried out to appropriately high standards of animal welfare and public safety.
2 The previous Section reviewed how wild deer in Scotland can be killed lawfully under the current provisions of the Deer (Scotland) Act 1996 and related legislation. This Section reviews the times of year when deer can be killed lawfully under the legislation, while the following Section reviews the times of day when deer can be killed lawfully.
5.1 Close Seasons 1959-1996
3 Statutory close seasons restricting the right to shoot male and female red deer at specified times of year, were first introduced by the Deer (Scotland) Act 1959. While the purpose of the Act was to improve the protection of agriculture and forestry from damage by marauding red deer, the inclusion of close seasons was a key demand of sporting estate interests and the main contested issue in the protracted negotiations leading to the 1959 Act.
4 The Government Committee appointed in the early 1950s to consider close seasons had failed to reach agreement and the eventual compromise was to delay the introduction of close seasons for three years after the 1959 Act was passed. This was on the basis “that during that time substantial progress would be made towards getting marauding under control”. However, as the Red Deer Commission (RDC) reported in 1962, when the close seasons came into effect, “it cannot be claimed that this desirable objective has been achieved”.
5 The specific dates for the close seasons for female and male red deer were included in the 1959 Act itself, while the Act also enabled statutory close seasons to be set for other species of wild deer by statutory instrument. This was first done for roe, fallow and sika deer by The Deer (Close Seasons) (Scotland) Order 1966. This Order was then replaced by The Deer (Close Seasons) (Scotland) Order 1984 to include close seasons for red/sika hybrids following the Deer (Amendment) (Scotland) Act 1982.
6 The introduction of the close seasons from 1962 did not affect the right of occupiers under s.33(3) of the 1959 Act, to kill deer on enclosed agricultural land and in enclosed woodland at any time of year. However, the close seasons meant that the only way that land owners could cull deer out of season on unenclosed land prior to the Deer (Scotland) Act 1996, was to apply for an authorisation from the RDC under the measures in s.6 of the 1959 Act for dealing with marauding red deer, and from 1982, red or sika deer. During the period 1963-1996, the number of authorisations issued each year was generally around 50-70 and the numbers of deer shot under them generally around 300-500 annually.
5.2 Close Seasons 1996-Present
7 During the debate leading to the 1996 Act, a range of interests questioned the need to continue to have close seasons for male deer. As a result, while the 1996 Act required that the Secretary of State “shall” set a close season for female deer of each species, the Act only states that he “may” set close seasons for male deer.
8 The 1996 Act also enabled the dates for the close seasons for red deer to be set by statutory instrument for the first time like the other species, and this change was subsequently consolidated by replacing the 1984 Order with The Deer (Close Seasons) (Scotland) Order 2011. The current close seasons under that Order are shown in Figure 15.
|Fallow deer (Dama dama)||16th February – 20th October||1st May – 31st July|
|Red deer (Cervus elaphus)||16th February – 20th October||21st October – 30th June|
|Red/Sika deer hybrid||16th February – 20th October||21st October – 30th June|
|Roe deer (Capreolus capreolus)||1st April – 20th October||21st October – 31st March|
|Sika deer (Cervus Nippon)||16th February – 20th October||21st October – 30th June|
Source: The Deer (Close Seasons) (Scotland) Order 2011
9 Two other significant changes were made to close seasons by the 1996 Act. Public safety and the natural heritage were added to the interests that could be protected by an out of season authorisation, while the authorising of out of season culling was separated from the provisions for dealing with marauding deer. Following the 1996 Act, the number of out of season authorisations under s.5(6) initially continued at a similar level as before, but the number of deer killed under the authorisations started to increase. Within 10 years, over 2,000 deer a year, very largely red deer, were being culled under s.5(6) authorisations, with much of the increase due to the new scope under the 1996 Act to protect natural heritage interests.
10 By the time Scottish Natural Heritage (SNH) replaced the Deer Commission Scotland (DCS) in 2010, the number of s.5(6) authorisations issued annually was around 70-80 a year and the number of deer shot was still just over 2,000 a year, the majority of them red deer. The out of season totals under s.5(6), however, did not include deer killed out of season on enclosed agricultural land and in enclosed woodland, as that did not require authorisation to prevent damage until 2011.
11 The Wildlife and Natural Environment (Scotland) Act 2011 (‘the WANE(S) Act’) also made significant changes to the arrangements in the 1996 Act governing close seasons on deer welfare grounds. Firstly, it ended the right of occupiers to cull out of season on enclosed land. Secondly, it enabled SNH to issue either General or Specific Authorisations for out of season shooting. SNH has since issued General Authorisations annually for each year from 2012. While General Authorisations are taken by SNH as covering both owners and occupiers, the legislation only refers to occupiers. The reason for this anomaly is explained below.
12 These General Authorisations allow the occupiers of enclosed land to kill male deer throughout the close seasons for male deer to protect the agricultural and woodland interests described in s.5(6)(a). They also allow those occupiers to kill female deer during part of their close seasons, but not from 1st April to 31st August, during which period a Specific Authorisation is required to kill female deer.
13 Thus, while the WANE(S) Act 2011 amendments removed the statutory right of occupiers to shoot deer at any time of year to prevent damage on their enclosed land, that scope was given back through the General Authorisations, subject to not shooting females during a more restricted female close season.
14 However, as General Authorisations have not covered the interests in s.5(6)(b), owners and occupiers wanting to shoot deer out of season to protect unenclosed woodland, the natural heritage or public safety still have to apply for Specific Authorisations during the full extent of both male and female close seasons. The reason that s.5(6)(b) interests have been excluded from the General Authorisations appears to be a concern that this would be seen as an indirect approach to removing close seasons for male deer.
15 The number of Specific Authorisations issued by SNH in each of the five years 2012/13-2017/18 is shown in Figure 16, which also shows the total number of deer of each species
Source: SNH Information Response 25
reported as killed out of season each year. The total includes the deer shot out of season under both Specific and General Authorisations, as the cull return form required by SNH from owners and occupiers simply asks for the cull figures to be divided between in-season and out of season.
16 The number of deer shot out of season is a significant component of the total annual culls, at around 15% each year. The proportion is broadly similar to that for the numbers of deer shot under authorisations for night shooting each year, as has appears to have generally been the case since authorisations for night shooting were introduced from 1982.
17 The distribution of out of season and night shooting authorisations by Local Authority area in 2016/17 are given in Figure 17. This shows that, while both are widely distributed across Scotland, both are also mainly concentrated in particular Local Authority areas. This also reflects in part that many properties that have a Specific Authorisation for out of season shooting, also have a night shooting authorisation. Over the two years 2015/16 and 2016/17, for example, this was the case with 89% of the properties with a Specific Authorisation.
18 During the last 60 years, while there have been several changes in the arrangements governing close seasons, there have only been two changes to the dates of the close seasons since they were first set in the 1959 Act and 1966 Order. These changes were made in the 1984 Order.
19 The changes were, firstly, that the close season for male sika deer which had been the same three months as for fallow, was made the same as the eight month close season for male red deer due to hybridisation. The female red/sika seasons were already the same. The other change was that roe deer seasons were adjusted, with the start of the female close season moved back from 1st March to 1st April and the end of the male close season moved forward from 30th April to 31st March.
20 The purpose of statutory close seasons for deer is to restrict the scope for land owners and occupiers to shoot them at certain times of year, on the basis that this restriction is justified to protect public interests. However, the current dates and arrangements for close seasons in Scotland can be considered to owe more to history than a rational assessment of current needs.
21 The current dates for the close seasons reflect the traditional red deer stag stalking seasons maintained on many Highland sporting estates over 60 years ago. During the passage of the 1959 Act at Westminster, the end of the stag season in Scotland was debated given the varying circumstances across the Highlands, and the date chosen (20th October) “was a compromise for those deer forests that did not get sufficient stags until the rut was well underway because the original dates proposed were much earlier”. With the end of the stag stalking season on 20th October until the following July, the hind stalking season was then set to start on 21st October until the traditional end of the hind season on 15th February.
|Local Authority||No. of out of season authorisations, s.5(6)||No. of night shooting authorisations, s.18(2)|
|Argyll & Bute||47||38|
|Dumfries & Galloway||24||21|
|Perth & Kinross||18||21|
22 The 16th February - 20th October dates set for the close season for red deer hinds in the 1959 Act were then used for female fallow, roe and sika in the 1966 Order, except for the start of the female roe close season two weeks later on 1st March (and subsequently adjusted to 1st April in 1984). The start of the close season for red deer stags set in 1959 is also the start of the male close season for sika and roe. The lengths of the male close seasons therefore vary from eight months for red and sika and five months for roe to three months for fallow.
23 In addition, the way that the current arrangements over close seasons in the 1996 Act apply to different extents depending on the types of land and interests involved, is also still a reflection of the original tension over close seasons between sporting estate interests and those of agriculture and forestry. The Group considers that, as discussed below, both the dates for close seasons and the arrangements governing them should be revised so that they are fit for purpose in contemporary circumstances.
5.3 Female Close Seasons
24 There is general recognition that there should be a close season for female deer to avoid orphaning dependent juveniles on animal welfare grounds. The period of the close season should therefore be defined by the risk of that occurring.
25 The date of the current start of the female close seasons reflects the traditional dislike of many deer hunters of gralloching (disembowelling) increasingly pregnant females. However, there is no direct animal welfare issue involved as the foetus dies at the same time as its mother. The date of the end of the current female close seasons is also not based on welfare concerns, but the traditional start of the red deer hind stalking season to follow the end of the stag season as described above.
26 SNH based the dates of 1st April - 31st August used for the more restricted female close seasons in the General Authorisations, on the research and other information available into the times for each deer species when there may be a risk of the orphaning of dependent calves (known as kids in roe deer). While setting dates for the start and end of the female close season involves making balanced judgement of the level of risk of orphaning, SNH remain of the view that the dates represent a suitably sound basis for the period of the restricted close season.
27 SNH also linked the introduction of the dates to setting a higher threshold for granting an authorisation for killing female deer out of season during the restricted period. This threshold should include, amongst other factors, the significance of the damage being caused or likely to be caused, the scope for other means of addressing the issue, the risk of orphaning during culling in the particular circumstances and the experience of the person who would carry out the culling.
28 The Authorisations Review Panel set up by SNH at the end of 2015 considered the dates for the restricted close season as part of its work. In the Panel’s final report, it endorsed the dates as covering the period of greatest welfare concern for dependent juveniles. However, the Panel also noted that the submissions which it had received contained a range of views, and it therefore recommended that “SNH should review the demand for, and the likely welfare implications of, April and September shooting of females”.
29 SNH’s response to the recommendation was to include a question on cull return forms for 2017/18. Those completing the forms were asked if they have a need to control female deer in the months of April or September, with yes/no boxes for each month. On the form, no context was given to the voluntary question. SNH received a total of 233 responses on the 2017/18 forms, amongst which 56 responses said ‘no’ to both April and September. The remaining responses included 120 responding ‘yes’ to April and 163 responding ‘yes’ to September, with 103 of these ‘yes’ responses saying ‘yes’ to both months. The question is also on the current 2018/19 form and the results to date show a similar pattern.
30 Those receiving cull return forms are an obvious constituency to survey on the need to shoot females in April and September, although the limited extent of the coverage of landholdings in Scotland by cull return forms and the strong bias in the current distribution towards the Highlands and open hill red deer range need to be recognised. The results do indicate a need to shoot female deer in both months. However, the Group considers that SNH’s inclusion of the question on the cull return form, was a very limited approach to following up the Panel’s recommendation and that the results give little helpful information by themselves.
31 The Panel’s recommendation asked about the month after the start of the restricted close season and the month after its end. The implication with the other comments in the Panel’s report, is that the Panel considered that there are still questions over whether the restricted close season should start and end later.
32 The Group considers that the need to shoot female deer in April and September to protect public interests from damage, is an important factor to be weighted against the risk that some calves might be orphaned and possibly not survive depending on the stage of their development at the time. As discussed below, the Group considers there is a greater risk of orphaning and therefore welfare issues, at the end of the current restricted close season than at the start.
5.3.1 Start of Female Close Season
33 The risk of orphaning starts with the beginning of calving amongst Scotland’s four species of wild deer. The pattern of the births with each species is a general distribution curve starting with few births before the rate rises steeply to a main calving period and then tails off steeply. The main calving period is regarded as the period within which 80% of the births have occurred and this is also used to give a median calving date.
34 The main calving period for wild red deer is very similar across Europe and is considered to be mid-May to late June in Scotland. There is very little data on the main periods in Scotland for sika and fallow deer. However, sika are considered to be the same as red deer, while the main calving period for fallow is viewed as mid-June to mid-July. The main period for roe deer in Scotland is considered to mid-May to mid-June, with some studies suggesting a 20-30 day calving period.
35 Within the overall pattern of the main calving periods, studies of red and roe deer show that the median calving date in Scotland can vary due to environmental factors. Open hill red deer tend to calve later than those living in forests, with the earlier calving reflecting the more favourable forest environment. Similarly, deer at lower densities tend to calve earlier than deer at high densities due to improved body condition from less competition for food. The median date for roe can also vary markedly between locations, while wider weather patterns can influence the dates for red and roe year to year. There is already evidence that climate change is having an effect.
36 The general distribution of the pattern of calving in each species means that instances of early and late outlying calving dates are sometimes reported. However, even allowing for variation in median calving dates, the available evidence indicates that red and sika births before the 1st April start of the restricted close season are very uncommon, while calving by fallow then might be considered rare. The indications are that there will be more instances of roe deer calving before the 1st April, but they might still be considered generally uncommon.
37 On the basis of the very small number of calves that might have been born by 1st April, the risk of orphaning through a mother being shot in particularly limited. The Group therefore considers that there is not a justifiable case for starting the close season earlier. However, the Group also considers that the case for delaying the start of the closed season into April should be examined.
38 As April progresses, the number of births starts to increase and with it, the possibility of orphaning. However, the level of calving in the first half of April is well ahead of the main calving period and still low. Mid-April is also in advance of the 10 days that have been suggested before the main calving period for red deer, as the time to use “as a buffer zone to minimising the risk of shooting a female which may have a hidden dependent calf”.
39 Another factor affecting the risk of orphaning from shooting female deer in the first half of April, is that not all the females in a population will be giving birth in a particular year. The calving rates in local populations vary. There are, firstly, yeld hinds or does that are not calving that year. Secondly, there are the female calves or kids from the previous season that have become yearlings.
40 The proportion of yeld females is generally determined by the two environmental factors of habitat quality and deer density. The proportion of red deer yeld hinds can be relatively high on open hill range, but low in more productive forest environments. Roe deer can have calving rates over 100% in woodland habitats due to twins. However, high deer densities relative to the food resources reduce the fecundity of populations in all environments and thus the proportion of breeding females in the population. While yeld females are generally not distinguishable in the field from other adult females, their presence to whatever degree dilutes the risk of orphaning from shooting a female deer.
41 The proportion of yearlings or juveniles in a population varies due to the same environmental factors as fecundity. Also, as with the level of deer density, the proportion of yearlings may be significantly altered by the culling regime in any particular situation. The control of juveniles is a key component of managing deer populations and densities, especially the number of female juveniles before they reach reproductive age. In the context of the risk of orphaning, yearlings are not adding to the risk and are generally identifiable in the field.
42 Thus, in the first half of April, a proportion of the female deer population will not be pregnant and the level of births by those that are, will still be low. A proportion of those calves are also likely to die due to natural mortality during their first year, though there is little data on juvenile mortality rates other than for open hill red deer. Early red deer calves appear to survive less well than later calves and juvenile mortality rates can be high in some years amongst open hill red deer.
43 Delaying the start of the close season over the first two weeks of April, would not require land owners and occupiers to shoot female deer on their land during that period unless they chose to do so. However, if shooting took place, the risk of one of the few females to have calved by that stage being shot, may be further reduced by shooter competence. There is a strong ethos against orphaning calves amongst the deer sector in Scotland and this is reflected, for example, in Wild Deer Best Practice (WDBP) guidance and Deer Stalking Certificate qualifications.
44 While there is a risk of orphaning in the first half of April, the Group considers that the risk of it actually happening is very low and the actual number of individual cases that might be involved would be even smaller. Those few orphaned deer will die, but the weight to be put on their suffering has to be considered in context.
45 The first half of April can be an important period for deer control with, for example, the possibility of hinds marauding onto the new growth of grass on agricultural land and yearling roe dispersing in woodlands as they become independent of their mothers. There is also the wider context described in the following Parts of the Report, of the general need to reduce the current levels of damaging impacts by wild deer in Scotland.
46 Given the very low risk of orphaning occurring in the first two weeks of April and the freedom of owners and occupiers to decide whether they shoot female deer during that time, the Group’s view is that the start of the restricted close season for female deer should be delayed to 15th April. The Group considers that restricting the right of owners and occupiers to shoot female deer before then is not warranted by the available evidence. Thus, while the Group agrees with SNH that the restricted close season does not need to start before 1st April, the Group considers the start should be delayed to the 15th April.
5.3.2 End of Female Close Season
47 The calves of the four deer species are considered to be nutritionally dependent on their mother’s milk for three to five months after birth, with the period generally described as four months. Therefore, by around four months after the mean calving date, the proportion of calves that are weaned is increasing rapidly. While this is reflected in the decline in the number of females lactating, lactating and suckling by calves can continue for some months after calves are no longer reliant on milk as part of their diet.
48 Calves that are orphaned during their transition from suckling to relying on grazing, may survive depending on the stage of their development. However, they survive less well than non-orphaned calves. Weaned calves still have a degree of social dependence on their mother, for example, in learning grazing behaviour and the quality of habitat that a calf may have access to through the hierarchical status of its mother. Research on Rum showed that the effects of orphaning on red deer within their first two years of life could be measured in the subsequent performance of the deer.
49 The indications from the dates of calving periods and the duration of nutritional dependence are that, during August, a high and quickly increasing proportion of calves will be weaned and others close to that stage. Fallow will be behind the other species with its later calving period. There will still be a declining number of nutritionally dependent calves during the weeks of September, and also beyond that with the general distribution of calving dates. However, with the late births, factors other than orphaning can become more important in determining calf survival.
50 There can be some local variation within this overall pattern due to the types of factors discussed above that can affect the timing of calving periods. These include habitat type, population density and geographic location, for example, between the south and north of Scotland. As also described above, it was geographic variation in the timing of the red deer rut that resulted in the compromise date in 1959 for the stag seasons that still dominate the current pattern of close seasons.
51 There is limited data on which to base discussions about an end date for the female close seasons and selecting a date also involves balancing a range of factors. SNH has adopted 31st August as the end of the restricted close season on the basis of the information available to it. This avoids the period when there are high levels of vulnerable calves and when shooting might also have a disturbance effect on mothers and young. The Group endorses SNH’s position that the close season should not end before 31st August.
52 The end of the season draws a line before which it is judged people should not have the discretion to shoot female deer, and before which any shooting would require to satisfy the strict requirements of a Specific Authorisation. There is no requirement on owners and occupiers to start shooting female deer after the date, but the current date allows that discretion in September without the high threshold of a Specific Authorisation.
53 In September, only a proportion of female deer have calves due to yeld females and juveniles. In some cases, females may have lost calves due to natural mortality. Amongst the other breeding females, the proportion of calves for which orphaning might prove fatal in the early months of their lives has already reduced substantially and is continuing to fall as the month progresses.
54 There will still be a significant number of calves in September for which orphaning would prove fatal sooner or later after they are orphaned. The Group’s experience is that some people chose not to shoot females in September for that reason, when there was already discretion prior to 2011 to shoot female deer on enclosed land. However, there can be a need to control female deer in September to protect crops and other interests. In situations where female deer are shot in September, calves may be visible with their mothers and following the WDBP guidance always to shoot the calf before the mother, avoids orphaning.
55 While there is clearly a risk of fatal orphaning during September, the risk of this actually happening in practice might be considered significantly lower. The regrettable fate of those orphans has to be weighed against a prohibition on anyone shooting any female deer outwith the strict requirements of a Specific Authorisation.
56 The Group’s view is that SNH has adopted a reasonable balance setting 31st August as the end of the restricted female close season. The Group is therefore not arguing against that date. However, the Group recognises that a case can be made for setting a later date. While the Group does not consider that imposing the high threshold for Specific Authorisations to 30th September is a warranted restriction, delaying the end of the close season to mid September would significantly reduce welfare concerns.
57 In reviewing the dates for the restricted close season for female deer, the Group’s view is that the season should not start before the current date of 1st April and should not end before the current date 31st August. The Group also considers that those dates strike reasonable balances for the period of the restricted season. However, the Group also considers there is a case for the delaying the start of the close season to 15th April and a case for delaying the end of the season to 15th September.
58 The Group’s view is that the case for delaying the start date is stronger than for delaying the end date, even though there are clearly welfare concerns at that time. The Group sees merit in moving both the start and end of the current five month length of the close season two weeks later in the year.
59 The wider issue is that the dates for the restricted close season for female deer only operate in the areas covered by the current General Authorisations (i.e. areas of enclosed agricultural land and enclosed woodland). The Group considers that there is no public interest case for requiring the rights of the owners and occupiers of other types of land and those seeking to protect other types of public interests, to comply with the full eight month female close seasons as currently set out in the 2011 Order.
60 The Group considers that the same close seasons for female deer should apply to all types of owners and occupiers and all types of land. The Group considers that the close season for each species of female deer should be set in replacement Close Seasons Order, to start on a date in the period 1st to 15th April (inclusive) and end on a date in the period 31st August to 15th September (inclusive). The Group recognises that climate change means that the close season period needs periodic review to allow for biological and temporal changes.
5.4 Male Close Seasons
61 The origins of the eight month close season for male red deer as the period between the end of one stag stalking season and the beginning of the next on traditional Highland sporting estates, has been described above. The subsequent influence of that close season on the close seasons for male deer of other species was also mentioned above. This includes having an eight month close season for male sika deer, even though public policy since the 1980s has been to try to limit the spread of sika deer.
62 There are no animal welfare or biological reasons to have close seasons for male deer of any species. It has also been lawful to shoot male deer all year round on enclosed agricultural land and in enclosed woodland throughout the last 60 years. The Group considers there is also no public interest case for restricting the right of the owners and occupiers of other land types from shooting male deer all year.
63 There have been proposals from time to time over the years to end close seasons for male deer, and each time they attract a strong reaction from particular interests mainly associated with open hill red deer stalking. When the DCS consulted on close seasons in 2004-05, for example, there were 1,193 responses, of which 1,001 were pre-printed responses organised by the Scottish Gamekeepers Association. As was observed in the 1990s, it can appear that those who are most against further statutory regulation of deer management, are also those most against removing statutory regulation when it involves the close seasons for male deer.
64 The argument is sometimes made that red deer stags require protection after the rut, due to the possible disturbance effect of shooting a stag on the other stags when “stags are usually well run after their exertions during the rutting season towards the end of October”. A possible disturbance effect has been noted as a potential welfare issue in other culling circumstances, most notably culling during the rut but it is the Group’s opinion that the effect is a minor one to be balanced against wider issues. However, while a hunter might decide not to shoot male deer in poor condition, there is no public interest justification to prevent other owners and occupiers from shooting male deer during that time if they decide to do that. With the General Authorisations, some owners and occupiers are unrestricted by close seasons and the Group considers that should apply to all owners and occupiers.
65 Scottish Forestry, SNH and others have long recognised that there are no welfare or biological reasons for male close seasons, and the change in the 1996 Act so that there is no requirement to set a close season for male deer reflected a move towards that. The Group considers that close seasons for male deer should be removed in an Order to replace the 2011 Order in which no close season is set for male deer of any species.
66 Ending male close seasons removes an unwarranted restriction on the scope of owners and occupiers to cull male deer. However, owners and occupiers can also choose if they want to maintain their own seasons for when they shoot stags and bucks. Whether or not removing the male close seasons would lead to any general increase in the numbers culled, it is likely that the cull of male deer would become more widely spread during the year. This would potentially benefit the supply of wild venison by reducing its seasonality, particularly during the close season for females over the summer months.
67 The Working Group recommends that The Deer (Close Seasons) (Scotland) Order 2011 should be replaced with a new Order in which the close season for females of each species is set to start on a date in the period 1st to 15th April (inclusive) and end on a date in the period 31st August to 15th September (inclusive), and in which no close seasons are set for males of each species.
68 Changing the close seasons for female deer and removing them for male deer does not require any amendment to the 1996 Act, only the replacement of the 2011 Close Seasons Order with a new Order. However, the Group considers that s.5 ‘Close Seasons’ in the 1996 Act should also be amended.
69 At present, out of season culling can only be authorised under s.5(6) to protect a restricted range of public interests. While public safety and the natural heritage were added by the 1996 Act, the protection of deer welfare might also have been added, for example, as under other SNH powers in the Act. However, as discussed previously in this Report, there are significant disadvantages to using an exclusive rather than inclusive approach to the definition of the public interests in the primary legislation that are protected by powers in the Act. The Group considers that the inclusive phrase “public interests of a social, economic and environmental nature” that already applies to some of SNH’s powers, should also apply to the interests that can be protected by authorising out of season culling under s.5 of the Act.
70 The Group also considers that the scope of owners and occupiers to cull deer out of season should apply in the same terms to all owners and land types. The question in each situation should be whether an authorisation is warranted in the particular circumstances. The Group considers that the current distinction in s.5(6) depending on whether or not land is enclosed “by a stock-proof fence or other barrier”, is a redundant legacy of previous times and should no longer be a determining factor in whether an owner or occupier needs to apply for an authorisation to shoot deer out of season.
71 The Group considers that the presence or proximity of a stock fence, which is not a barrier to deer with its limited height, should not be used as the basis for distinguishing owners and occupiers who can protect their interests without authorisation or the types of public interests that can be protected.
72 The Group recognises that the introduction by the WANE(S) Act 2011 of the enclosed/unenclosed distinction in s.5(6)(a) and (b) was, with the addition of a new sub-section s.5(8), to create the scope for General Authorisations as the approach taken to ending the ability of owners and occupiers to shoot female deer on enclosed agricultural land and woodland without the need for out of season authorisation. The complexity of the approach appears to have been due to the aim of creating a mechanism that allowed the owners and occupiers of that land, to be able to shoot male deer all year without authorisation.
73 While the owners and occupiers of unenclosed agricultural land and unenclosed woodland as well as all other types of land, currently have to apply for authorisation to shoot male deer out of season, they also have to satisfy the requirement at the end of s.5(6) that “no other means of control which might reasonably be adopted in the circumstances would be adequate”.
74 The Group considers that this extra threshold of “no other means” should be regarded as an historic legacy and that it should no longer be applied to applications for authorisation to shoot male deer out of season (even if male close seasons were retained). However, if there were no male close seasons and a more limited close season for females as proposed above, the requirement that “no other means of control which might reasonably be adopted in the circumstances would be adequate”, would be an appropriate part of the threshold for authorising shooting females out of season.
75 In summary, the Group considers that having no close season set for male deer and the more focused close season for females through a new Close Seasons Order, should be linked to amending s.5(6) to remove the distinction between enclosed and unenclosed land and to have the inclusive approach to public interests represented in the 1996 Act by the phrase “public interests of a social, economic or environmental nature”.
76 These reforms would remove the need to produce General Authorisations each year, remove the need for Specific Authorisations to shoot male deer out of season and reduce the number of applications each year for Specific Authorisations to shoot females out of season.
77 As discussed above, the scope to have General Authorisations under s.5(8)(a) was invented primarily as a device as part of making the out of season shooting of female deer by occupiers of enclosed agricultural land and woodland subject to regulation. The reforms to the seasons proposed here would make General Authorisations redundant in that capacity. It might be considered that the retention of this power in s.5(8) would leave an unnecessary complication in the legislation under the proposed reforms, while the Group recognises there might be a reluctance to repeal the power in case it is ever useful again.
78 The Group considers that the unused power in s.5(8)(b) to grant authorisations “to a category of persons” should be repealed. The Group considers that its inclusion is a legacy of redundant DCS proposals put to government just prior to the replacement of the DCS by SNH in 2010. Those proposals are mentioned more fully later in the Report. The Group considers that authorisations should continue to be tied to land and issued to individual owners and occupiers as the holders of deer hunting rights and the units of regulation under SNH’s powers in the Act.
79 The Working Group recommends, firstly, that section 5(6) of the Deer (Scotland) Act 1996 should be amended to apply to any land and to cover public interests of a social, economic and environment nature; and, secondly, that s.5(8) should be repealed.
1 Report of the Committee on Close Seasons for Deer in Scotland (HMSO, 1954). The Committee concluded that the principle need for close seasons was as a “deterrent to poaching”. Animal welfare was seen as a “supplementary” consideration with others, as described in Callander, R. and MacKenzie, N. (1991), The Management of Wild Red Deer in Scotland, p.53. Also see SNH (1994), Red Deer and the Natural Heritage, p.18: “Close seasons were introduced... primarily as a deterrent to poaching, with welfare aspects as a secondary consideration”.
2 Red Deer Commission (1962) Annual Report, para. 3.
3 RDC (1962) Op cit.
4 Deer (Scotland) Act 1959, s.21(1) and (2) respectively.
5 Callander and MacKenzie (1991) Op cit, p.20; Red Deer Commission Annual Report, 1996-1997.
6 Callander and MacKenzie (1991) Op cit, p.53; SNH (1994) Op cit, p.18.
7 Deer (Scotland) Act 1996, s.5(1)(a) and (b) respectively.
8 This left close seasons at the start of the 1996 Act in s.5, as the powers to deal with marauding deer were moved from s.6 in the 1959 Act to s.10 in the 1996 Act as part of the consolidation process following the Deer (Amendment) (Scotland) Act 1996.
9 For example, DCS Annual Report, 2003-04.
10 The number of s.5(6) authorisations issued in 2009-10 was 84, but the number of deer killed under them was not included in the DCS’s Annual Report of that year. In the DCS’s Annual Report 2008-09 , there were 71 authorisations and 2,146 deer shot under them, of which 1,502 were red deer.
11 By inserting s.26(1A) and amending s.5(6) to incorporate that enclosed land under 5(6)(a) with other interests under s.5(6)(b).
12 By introducing a new s.5(8)
13 DWG meeting with SNH, 13 March 2018.
14 SNH Information Response 47.
15 Staines, B (2000). Wild Deer: issues concerned with deer welfare and public safety. Deer Commission for Scotland.
16 For example, Staines (2000) Op cit.
17 For example, Irvine, J. (2004), Calving dates: literature review and data analyses, DCS.
18 DWG and SNH meeting, 13 March 2018.
19 Deer Panel – Review of Authorisations (2016). Report to Scottish Natural Heritage, September 2016.
20 Deer Panel – Review of Authorisations (2016) Op cit, Recommendation 12.
21 SNH correspondence with DWG, 16 July 2019.
22 SNH correspondence with DWG, 16 July 2019.
23 See Section 2.
24 Irvine (2004) Op cit.
25 Apollonio, M., Putman, R., Grignolio, S. and Bartos, L. (2011). Hunting seasons in relation to biological breeding seasons and the implications for the control or regulation of ungulate populations. In: Putman, R., Apollonio, M. and Andersen, R. (eds.) Ungulate Management in Europe: Problems and Practices. Cambridge University Press, Cambridge.
26 Irvine (2004) Op cit.
27 Apollonio et al. (2011) Op cit.
28 Irvine (2004) Op cit.
29 Irvine (2004) Op cit.
30 Irvine (2004) Op cit.
31 Recent research on Rum shows how red deer are responding to the changing climate: Bonnet, T., Morrissey, M.B., Clutton-Brock, T.H., Pemberton, J. and Kruuk, L.E.B. (2019), The role of selection and evolution in changing parturition date in a red deer population, draft paper shared with DWG.
32 Irvine (2004) Op cit, p.1.
33 Clutton- Brock, T. and Albon, S. (1989). Red Deer in the Highlands. BSP Professional Books.
34 Clutton-Brock and Albon (1989) Op cit.
35 Irvine (2004) Op cit.
36 For example, Clutton-Brock and Albon (1989) Op cit.
37 Except in situations involving compulsory regulation by SNH.
38 Wild Deer Best Practice guidance.
39 Irvine (2004) Op cit.
40 Irvine (2004) Op cit.
41 Pemberton, J.M. and Kruuk, L.E.B. (2015). Red deer research on the Isle of Rum NNR: management implications. SNH, Battleby.
42 Irvine (2004) Op cit.
43 Irvine (2004) Op cit.
44 See Section 17.
45 For example, Staines (2000) Op cit. While close seasons for species can be used for purposes other than welfare, such as restricting access to a scarce resource, these are not applicable in this context.
46 DCS Annual Report, 2004-05.
47 Callander and MacKenzie (1991) Op cit.
48 DCS (1997). Guide to the Deer (Scotland) Act 1996, p.4.
49 Apollonio, M., Putman, P., Grignolio, S. and Bartos, L. (2011). Hunting seasons in relation to biological breeding seasons and the implications for the control or regulation of ungulate populations. In: Putman, R., Apollonio, M. and Andersen, R. (eds.) Ungulate Management in Europe: Problems and Practices. Cambridge University Press, Cambridge.
50 If a land owner, for example, does not want stags that may move to other lands over winter shot there because of the potential value to the owner if they return for the next stalking season, then the owner would need to come to an arrangement with the other owner(s) involved. Such matters are a matter between neighbours, rather than measures in legislation. The owner may also have the scope to improve the winter holding capacity of their own land (e.g. by creating more woodland).
51 For example, Forestry Commission Scotland and SNH in DCS Annual Report, 2004-05 Op cit.
52 As with the voluntary seasons on some private estates before the 1959 Act.
53 Male deer shot during the summer months are also likely to be in better condition than some shot over the winter.
54 ss.6A and 10 of the 1996 Act.
55 See Section 1.
56 s.45(1) of the 1996 Act.
57 DCS letter and proposals relating to review of deer management legislation, sent to Minister for Environment, 13 January 2009.
58 See Section 8.
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