The Wildlife and Natural Environment (Scotland) Bill (“the Bill”) passed Stage 3 of the Scottish parliamentary process on 2 March 2011. Assuming that the Bill receives Royal Assent, it will shortly become an Act and pass into the statute books. In this edition of our e-bulletin, we consider the key provisions of the Bill as passed.

The Bill comprises six parts, with parts 1 and 6 dealing with interpretation and Crown application respectively. Therefore, in this summary, we consider the main “meat” of the Bill - parts 2 to 5.

Part 2 – Wildlife under the WCA

This part of the Bill affects five main areas: Game Law (and in particular the new “Vicarious Liability” offences); Areas of Special Protection; Snares; Non-Native Species; and Species Licensing.

In addition, an obligation to produce a report on wildlife crime is imposed on the Scottish Ministers. Such a report is to be laid before the Scottish Parliament at the end of each calendar year, and will include - amongst other things - information on the incidence and prosecution of wildlife crime.

Game Law

The Bill would repeal the existing Game Acts (all of which date from pre-1900) and consolidate new provisions relating to game in the WCA.

The main points to note are:

  • The requirements for a licence to kill game and a licence to deal in game are abolished;
  • The restriction on selling game outwith the season is removed and replaced with new offences of (a) selling game that has been killed outwith the season and (b) selling game that has been poached;
  • Game birds which are bred in captivity and then released are now classed as game;
  • Game birds’ eggs can now be sold;
  • The existing close seasons, during which game birds cannot be hunted as game, are preserved and reproduced;
  • Outwith the close seasons game birds, hares and rabbits can be killed or taken under the proviso that only those with the legal right, or the permission of someone who has such legal right to kill or take, can do so. Poaching is therefore defined as the killing or the taking of game birds, hares or rabbits without right or permission to do so;
  • A new offence of selling or possessing hares or rabbits taken illegally (that is to say, poached) is created;
  • New close seasons for mountain hares (1 March to 31 July) and brown hares (1 February to 30 September) are created;
  • The distinctions between different poaching offences depending on whether the offence took place during the day or at night, or depending on how many people were involved, are removed;
  • Poaching would now be punishable by imprisonment of up to six months and/or a fine of up to level five on the standard scale, which is currently £5,000;
  • Landowners’ powers to apprehend persons suspected of poaching are repealed, with provision instead being made for standard police enforcement powers to apply to poaching offences; and
  • The prosecution of poaching offences on single witness evidence is preserved.

Vicarious Liability

In addition to the changes to Game Law detailed above, provisions relating to vicarious criminal liability for wild bird (and related) offences are to be introduced. These provisions on vicarious liability have provoked the greatest controversy of all the Bill’s provisions.

In essence, where, on or in relation to any land, a person (A) commits a relevant offence while acting as the employee or agent of a person (B), (B being a person who has a legal right to kill or take a wild bird on the land or who manages or controls the exercise of any such right), B is also guilty of the offence and liable to be proceeded against and punished accordingly.

Liability can also arise in situations where A is providing “relevant services” for B. Relevant services are defined as the management or control of (a) the operation or activity of killing or taking any wild birds; (b) the habitat of any such birds; (c) the presence of predators of any such birds; or (d) the release of birds from captivity for the purpose of their being killed or taken. This is enforceable whether A is providing the services by arrangement between A and B or by arrangement with or as an employee of any other person who is providing or securing the provision of relevant services for B.

In both instances, it will be a defence for B to show that they did not know the offence was being committed by A and that they took all reasonable steps and exercised all due diligence to prevent the offence being committed.

Areas of Special Protection

The Bill abolishes Areas of Special Protection on the basis that the protective provisions afforded by designation as an Area of Special Protection are duplicated in other legislation.

Snares

Legislation related to snaring is presently spread over the WCA, the Nature Conservation (Scotland) Act 2004 and the Snares (Scotland) Order 2010. The aim of the Bill is to bring together this legislation under the ambit of the WCA.

Main points:

  • Snares which cause “unnecessary suffering” are outlawed. To guard against such unnecessary suffering, snares must (a) be fitted with satisfactory stops to prevent nooses from closing too far; (b) be checked at the time of setting them and thereafter at least once every 24 hours; (c) be anchored in place to prevent them from being dragged; and (d) never be set on or near features which could result in animals becoming fully or partially suspended or drowned;
  • Snares will require to be fitted with an ID tag which will contain the identification number of the snare operator, and also a confirmation of the type of animal for which the snare is intended;
  • Snare identification numbers will be available from the Chief Constable, once they are satisfied that the applicant has been trained;
  • Holders of snare identification numbers are obliged to keep extensive records of the locations of all snares set within the last two years, including the dates they were set and, if not still set, the date they were removed and details of all animals caught;
  • It will be an offence to be in possession of a snare or set any snare on land without having the authorisation of the owner or occupier of the land; and
  • A review of the new snaring provisions must be carried out by the Scottish Ministers by 31 December 2016. Thereafter, reviews are to be carried out on a five-yearly basis.

Non-Native Species

This part of the Bill aims to provide new machinery to control invasive non-native species (“INNS”).

The main points are:

  • An “invasive” animal or plant is one which would be likely to have a significant adverse impact on: (a) biodiversity; (b) other environmental interests; or (c) social or economic interests;
  • It will be an offence to release or allow any animal to escape from captivity to a place outwith its native range. This can be contrasted with the previous legislation which prohibited the release or escape into the wild of an animal which is of a kind not ordinarily resident in and is not a regular visitor to Great Britain in a wild state;
  • It will be an offence to release or to allow to escape from captivity any “other animal” that may be specified in an order by the Scottish Ministers;
  • It will be an offence to cause any animal outwith the control of any person to be at a place outwith its native range;
  • It will be an offence to plant or otherwise cause to grow any plant in the wild outwith its native range;
  • The keeping of certain INNS will be prohibited by order;
  • Species control orders are introduced. Such orders may be made by any “relevant body” (Scottish Ministers, Scottish Natural Heritage, Scottish Environmental Protection Agency and Forestry Commission) and should identify the presence of a named invasive animal or plant at a particular location. They may also specify actions that are to be taken by certain individuals to control the problem species. The relevant body must give the owner or occupier identified at least 42 days in which to enter into a voluntary agreement (known as a “species control agreement”) before a compulsory species control order is made; and
  • A wildlife inspector can be appointed by the Scottish Ministers and will be charged with the keeping and notification of orders and the policing of the special control order offences created by the Bill. They will also enjoy powers to enter premises and take blood samples consistent with the new provisions under the Bill.

Species Licensing

Species licensing, that is to say the granting of a licence allowing the taking, killing or disturbance of a protected species, is allowed in certain circumstances. It is thought that the current legislation is complex, with confusion over which licence to obtain being a prevalent issue.

The main points are:

  • A new category allowing the grant of a licence for “any other social, economic or environmental purpose” has been added, broadening the range of activities for which a licence can be granted;
  • A licence must not be granted unless doing so will contribute to the achievement of a significant social, economic or environmental benefit;
  • Power is given to the Scottish Ministers to delegate the licensing functions to Scottish Natural Heritage or to local authorities; and
  • Ten species are removed from Schedule 6 of the WCA, thus removing a duplication of protection contained in other Acts.

Part 3 – Deer

Whilst the Deer (Scotland) Act 1996 (“DSA”) will remain the principal statute relating to the control of deer in Scotland, a number of amendments to that Act are introduced by the Bill.

The main points are:

  • Scottish Natural Heritage (“SNH”) will be obliged to draw up a Code of Practice for deer management. This Code of Practice must be laid before Parliament;
  • SNH will be given the function of furthering urban deer management, with public authorities being obliged to have regard to SNH’s advice on this matter;
  • SNH’s powers to intervene in order to ensure effective deer management through both control agreements and control schemes are amended. SNH will have to have regard to the Code of Practice when considering whether to seek a control agreement, and will also be allowed to include time limits for actions to be taken by owners or occupiers;
  • SNH’s ability to seek control agreements would be amended to include the deer damaging their own welfare and on public interests of a “social, economic or environmental nature”. This extends the current criteria, which takes into account the impact of deer on forestry, farming, natural heritage or public safety;
  • References to “serious damage” by deer as a reason for SNH intervention will be replaced by “damage” by deer;
  • The industry is given the opportunity to self-regulate and develop a voluntary training scheme for those tasked with shooting deer unsupervised. If this fails, the Bill allows for the introduction of a mandatory competence requirement through subsequent subordinate legislation, which would include a register of fit and competent persons who had demonstrated their ability to SNH;
  • The right of owner-occupiers to shoot, out of season, deer that are causing serious damage to crops, agricultural land or enclosed woodland will be removed. Instead, authorisation would be required to allow this. The authorisation may be subject to conditions that fetter the right to shoot; for example the shooting of doe at the time when their young are most dependent;
  • The provisions of the DSA are extended to cover partnerships and unincorporated associations. Thus, for example, actions by individual partners can result in punishment of both the individual and the partnership; and
  • The grounds for authorisation of the taking or killing of deer at night are extended to allow such actions if they are necessary in the interests of public safety.

Part 4 – Other Wildlife, etc.

The main points in respect of badgers are:

  • The existing offences of knowingly (a) taking, injuring or killing a badger; (b) cruelly ill-treating a badger; (c) selling and being in possession of live badgers; and (d) marking and ringing a badger are added to by the creation of the new offences of knowingly causing or permitting any of (a), (b), (c) or (d) above to happen;
  • The licensing of acts which would otherwise be an offence under the Protection of Badgers Act 1992 (“PBA”) is changed, and the Scottish Ministers are allowed to delegate licensing functions to SNH or a local authority. This makes licensing of otherwise prohibited activities in relation to badgers consistent with those of other species; and
  • An existing anomaly in the PBA, being that the maximum penalty for killing a badger is currently less than for other offences such as digging, is rectified, allowing for the more severe offences to be prosecuted both summarily and on indictment.

The other main points are:

  • The muirburn season is standardised, removing the previous distinction based on altitude. It will therefore no longer be possible to make muirburn between 1 and 15 May above an altitude of 450m;
  • There is now a “standard muirburn season” of 1 October to 15 April, and an “extended muirburn season” of 16 April to 30 April;
  • Use of the extended muirburn season is confined to those who are proprietors of the land where muirburn is proposed, and those who have the authority of the proprietor in writing;
  • The Scottish Ministers’ powers to modify the muirburn seasons are extended to allow adjustments for different land, years and purposes if necessary or expedient to do so, and also for reasons of climate change, managing the natural environment or for public safety;
  • If the muirburn season is further extended by the Scottish Ministers, they are allowed to regulate such extension by modifying the notice period or applying extra conditions to the making of muirburn;
  • A licence for muirburn outwith both the standard and extended seasons can be granted by the Scottish Ministers for the purposes of managing the natural environment, research, or public safety. This can be delegated to SNH;
  • The notice provisions under the Hill Farming Act 1946 (“HFA”) are amended and now require that seven days’ notice is given, and that notice is given to not only the proprietor of the muirburn site and adjacent lands but also any occupier within 1km of the muirburn site. Where there are more than 10 such occupiers, notice may be given in a local newspaper; and
  • The provisions of the HFA are extended to cover partnerships and unincorporated associations. Thus, for example, actions by individual partners can result in punishment of both the individual and the partnership.

Part 5 – Sites of Special Scientific Interest (“SSSIs”)

The main points are:

  • SNH are given power to merge individual SSSIs, with the newly merged SSSI requiring a revised management statement. Any former notifications relating to the component parts will cease to have effect;
  • The denotification of SSSIs is streamlined in those circumstances where damage caused is a consequence of an authorised operation and where the public body or office holder had already consulted SNH prior to permitting that operation;
  • Provisions relating to operations carried out in SSSIs by public bodies themselves are extended to cover those operations which are caused or permitted by public bodies;
  • Restoration notices are introduced. As it presently stands, restoration can take place voluntarily or by way of a restoration order granted by a Court. These new notices are issued by SNH to the owner or person responsible for the SSSI and require that the SSSI be restored “so far as is reasonably practicable” to its former state, as if no damage had occurred; and
  • If these notices are not complied with, a fine of up to £40,000 on summary conviction (or on conviction on indictment to a fine without limitation) could be levied as currently drafted. SNH may also carry out the operations and recover reasonable expenses.

The Bill is expected to receive Royal Assent in the next month or so. Information about the dates on which the new provisions will be coming into force is not yet known, but you can expect to see an update on this in future editions of this e-bulletin.