The Rural Affairs and Environment Committee of the Scottish Parliament recently issued its Stage 1 Report on the Wildlife and Natural Environment (Scotland) Bill.

The Committee recognised the importance of the shooting industry both economically and culturally and in terms of bio-diversity. The Bill contains a number of measures which will affect the farming, conservation and shooting industries. The Stage 1 Report recommended that the Government reserved powers to itself to make the changes to the Bill at a later stage, in a number of areas by way of later secondary legislation.

The main points of the Report affecting the sporting industry in general and estates in particular are five-fold.

Wildlife Crime

The Committee was particularly concerned about the levels of wildlife crime concluding that there had been "no significant reduction in the level of persecution of raptors”. The Committee accepted that a principle of vicarious liability should apply to wildlife crime, under which estate owners and their factors face prosecution and penalties, including imprisonment, if their employees are caught killing birds of prey. The Committee commented that "law abiding landowners should have nothing to fear from vicarious liability". The principle that an employer can have vicarious liability for acts or omissions of his employees is not, of course, new in Scots Law, both criminal and civil, but, clearly, this particular measure will provide an even greater incentive to landowners to clamp down on suspected wildlife crime.

The Committee sought to make it an offence for a person to be "concerned" in the use of illegal poisons for the persecution of raptors and other birds.

The Committee noted a proposal that before an employer can be prosecuted for the possession of a regulated substance by an employee, the employer had knowingly to cause or permit the possession of such a substance.

The Committee took the view that the evidence of a single witness should be consistent as between poaching and other offences, eg. raptor poisoning.

The Committee recommended that the Government should consider an enabling power to allow possible extension of SSPCA's powers to investigate wildlife crime where a dead animal is involved.

Snaring

The Committee acknowledged that, if properly regulated and managed, limited and appropriate use of snares should continue to be permitted.

The Committee suggested that the Government should consider issuing a separate ID number for each individual snare tag, that such numbering should be sequential to allow for easy identification and that records are kept of which numbers have been issued to which operators. As an alternative the Committee asked the Government to consider fitting a bar code or similar to each tag. It did, on the other hand, suggest that the Government took note of concerns regarding the presumption that the ID number on a snare related directly to the person who set the snare.

The Committee invited the Government to consider reserving power to itself to ban snaring altogether if it became clear that the present system is not working and cannot be made to work.

Licensing

The question of whether or not sporting estates should be licensed has been in the air for some time. The Committee suggested that the Government might wish to consider whether it was appropriate to introduce an enabling power in the Bill permitting it to introduce a licensing scheme after consultation and scrutiny.

The Committee was content with the existing law on licensing to control protected species and asked the Government to clarify the point at which pheasants ceased to be deemed as livestock.

The Committee discussed licensing for the control of protected species but concentrated on reared birds only, apparently ignoring wild birds eg grouse.
Management of Game

The Committee recommended that a proposal that any species of game be removed from the list of birds which can be taken outwith the closed seasons should be dealt with affirmatively rather than by negative procedure.

It asked the Government to clarify whether or not the 14 day period for catching up could be extended, and if it might include black grouse.

It suggested that further consideration should be given to better record keeping and monitoring of the killing rates of certain species and bag counts with a view to reviewing the schedule of species which can be shot legally.

The Committee supported the general presumption against the release of non-native species. It suggested that the code on invasive non-natural species should be subject to parliamentary scrutiny through affirmative procedure. The Committee asked the Scottish Government to consider putting a reserve power in the Bill to allow it to restrict the release of pheasants and red leg partridges if they were ever to be released in such numbers as to cause significant damage to habitat and bio-diversity.

Deer Management

The Committee viewed the Bill as representing an acceptable compromise on deer competence, despite concerns raised at consultation and supported the provisions on competence through non-statutory regulations, albeit with a backstop for compulsory testing coupled with a register.

The Committee suggested a review of the operations of Deer Management Groups to encourage participation in them; it did not, however, recommend compulsory deer management.

It supported minor amendments to the Bill to the Control Agreement and Control Scheme provisions but did not call for the imposition of any wider "duty of sustainable deer management".

The Committee noted the British Deer Society's concerns about the 6 month timescales for the making of voluntary agreements and recommended that Scottish National Heritage (SNH) be given power to extend the period.

The Committee considered that the code on deer should also be subject to parliamentary scrutiny through affirmative procedure.

The Committee's Stage 1 Report was considered by the Scottish Parliament in a debate on 2 December 2010 when Parliament supported the general principles of the Bill. Helpfully, however, The Minister for the Environment softened the pill to some extent by declaring that the Government would not be seeking to reserve powers to make further changes in the future by secondary legislation to extend SNH's powers to investigate wildlife crime when a dead animal is involved to restrict the release of pheasants and partridges and (most importantly) to licence estates or ban snaring (although a review of snaring is to be undertaken in 5 years).

The Minister was anxious not "to create a policy and legal framework which discourages investment and erodes the ability for the shooting industry to operate cost effectively, the consequences of which are significant in terms of investment and employment in rural communities". These sentiments will be applauded by the industry.

The Bill now moves onto stage 2 – detailed scrutiny. The Committee suggested that parts of the legislation were unclear or vague and that this should be addressed. It also recommended that the Government should seriously consider consolidating the law in this area.

The Bill is at the stage where MSPs amendments have been published - http://www.scottish.parliament.uk/business/businessBulletin/bb-10/bb-12-16g.htm - and various bodies will now be responding on the proposed amendments.

Further Information

We shall, of course, continue to monitor the Bill as it passes through Parliament but in the meantime should clarification or guidance be required on any point, please refer to Jim Drysdale or John Mitchell or your usual Anderson Strathern contact.

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.