Information and Advsiory Note Number 94, June 1997
1.1 The Deer (Scotland) Act 1996 came into force on 18 November 1996. It succeeds the original Deer (Scotland) Act 1959, which, with various amendments, provided the basic framework for the management of wild red deer in Scotland.
1.2 The new Act marks an important milestone in the development of deer legislation. Between 1872 and 1954 seven government-appointed enquiries were established to address deer issues in Scotland. Early debate focused on the relationship between agriculture and the management of red deer for sport. Later, conflicts with forestry became prominent. The more recent history of developments has been marked by the establishment of the Red Deer Commission (RDC) in 1959, and the emergence of (non-statutory) Deer Management Groups, particularly over the last 10 years. (The first of the 55 groups in existence today was formed in 1963).
1.3 This Note provides guidance on relevant natural heritage sections in the Deer
(Scotland) Act 1996. It should not be read as a legal interpretation of the Act.
The Red Deer Commission is succeeded by the Deer Commission for Scotland (DCS). It has primary responsibilities to:
The DCS has balancing duties to take account of the size and density of the deer population and its impact on the natural heritage; the needs of agriculture and forestry; and the interests of owners and occupiers of land. Reference to the sustainable management of deer and to the natural heritage are new responsibilities for the Commission. The present RDC working definition on sustainable management of deer is:
“the maintenance of healthy deer populations in balance with their natural habitat and with other land uses”.
The DCS will consist of a Chairman and up to 12 other members, appointed by the Secretary of State for Scotland. Members of the Commission will have knowledge or experience of one or more of the following matters: deer management; agriculture (including crofting); forestry and woodland management; and the natural heritage. A third of the Commission will represent the interests of “Deer Managers”, notably those concerned with deer as a sporting resource.
The DCS will have responsibility for all species of wild deer commonly found in Scotland (red, roe, fallow, muntjac and sika deer).
The DCS will advise the Secretary of State on any matter relating to the purposes of the Act.
The DCS can issue guidance or advice to any person or organisation. It can conduct or collaborate with any person/organisation which is conducting any research into questions of practical or scientific importance relating to the conservation, control or sustainable management of deer, or to any other aspect of its functions.
This increases to 9 the maximum size of people on local panels. The DCS can appoint these to advise it on the exercise of its powers in specific localities. It also enables the DCS to seek suggestions for appointments to such panels if they choose to do so.
During “Close seasons” the shooting of any species of deer is prohibited. The hind close season, for example, is designed to cover periods when hinds are heavy in calf or have very young calves dependent on them. The Secretary of State has the power to fix the period of close seasons, and may consult persons/organisations, or direct the DCS to carry out such a consultation on his/her behalf.
The DCS may authorise the owner or occupier of any land, or any person nominated in writing by either of these, to take or kill deer during the close season where the DCS is satisfied that:
This section therefore provides the DCS with an important means of controlling deer if damage to the natural heritage is likely to occur.
A control area is the area in which a control agreement or control scheme relates. A control agreement is an agreement to control deer numbers agreed between the DCS and owners/occupiers of land. A control scheme, on the other hand, comes into force when it is not possible to secure a control agreement, or the control agreement is not being carried out by the owner/occupier.
Control agreements are drawn up where the DCS is satisfied that, on any land, deer have caused, are causing, or are likely to cause:
The DCS would consult with owners or occupiers “as the Commission considered to be substantially interested” to secure the control agreement.
Under Section 7(2) the natural heritage is deemed to include:
“any alteration or enhancement of the natural heritage which is taking place, or is proposed to take place, either naturally or as a result of a change of use determined by the owner or occupier of the land in question; and “damage” shall be construed accordingly”.
The control agreement should specify:
(a) the control area by reference to a map;
(b) the measures which are to be taken in relation to the deer in that part;
(c) where deer are to be reduced in number (possibly in relation to sex or age class);
(d) measures which are to be taken by the owners/occupiers for the time being, and
(e) the time limits within which the owners/occupiers are to take any measures to reduce/remove deer.
Where it is not possible to secure a voluntary control agreement, or the control agreement is not being carried out, and deer have caused and are causing “serious damage” to the natural heritage or the other features named above, and action is necessary to prevent such serious damage, then a voluntary control scheme shall be drawn up. This would require confirmation by the Secretary of State before coming into operation, and may be carried out by the DCS. However, control schemes would not apply in relation to any control agreement, proposed or entered into, to alter or enhance the natural heritage.
Where the DCS is satisfied that (a) deer are causing damage to woodland, agriculture production, injury to livestock or constituting a potential danger to the public, (b) none of their powers is adequate to deal with this situation, (c) the killing of deer is necessary to prevent further such damage or to remove the danger, and (d) DCS is satisfied that the deer mentioned come from particular land (and any person having the right to kill deer on that land will undertake the killing of deer), then it will make a request in writing to that person, or if necessary to another competent person, to follow and kill deer on that land. Section 15 grants power for any authorised person to enter land to exercise these functions.
Section 10, above, “applies in relation to the natural heritage as it applies to woodland”, where the DCS is satisfied that deer:
“are causing serious damage to the natural heritage -
(a) on enclosed land; or
(b) on unenclosed land, but only if the Commission are also satisfied that the damage is being caused by reasons of the presence on the landing question of a significantly higher density of deer population than is usual in all the circumstances”
Therefore, it is likely that the emergency measures under Section 10 would only come into force if there was an abnormally high number of deer in a particular area causing damage to the natural heritage (e.g. where large numbers of deer have broken through a fence into regenerating woodland within a NNR or other designated area).
The other sections include Section 9 (recovery of expenses incurred in fulfilment of control scheme) and 36 other sections.
3.1 The above distillation of the sections indicates that there are distinctions between damage and serious damage to the natural heritage. Essentially, this may be countered by:
3.2 Guidance will be issued shortly by SNH on definitions of ‘damage’ and ‘serious damage’ to the natural heritage.
4.1 The following provides guidance on how referrals will be dealt with:
(a) The DCS receives all referrals about alleged deer damage to the natural heritage. Any referred to SNH should be passed on to the DCS.
(b) The DCS makes an initial judgement on whether or not to follow-up action as required. DCS staff will visit the site.
(c) Where action is needed, the relevant SNH Area Office is contacted by the DCS for advice.
(d) The SNH Area Office will advise on whether or not it considers there is any damage or serious damage to the natural heritage. SNH staff will probably need to visit the site to make such an assessment.
(e) If the SNH Area Office is unclear about the extent or nature of damage, having consulted other colleagues elsewhere in SNH, the DCS will need to commission an assessment (with guidance from SNH).
(f) The DCS will notify the individual/owner/occupier who raised the matter, of the action it has taken.
(g) Once that assessment has been made, and action has been taken to eliminate the damage, the case will be closed.
We are grateful to the following for comments:
Dick Youngson (DCS), Angela Neish, Roddy Fairley, Roger Burton, Duncan Stone, Michael B Usher, Dave Horsfield, Helen Armstrong (SNH), Brian Staines (ITE), Alistair Strathnaver and Kenneth W Dunbar of Archibald Campbell & Harley, WS.
Deer (Scotland) Act 1959. Chapter 40. HMSO: London.
Deer (Amendment) Scotland Act 1996. Chapter 43. HMSO: London.
Deer (Scotland) Act 1996. Chapter 58 HMSO: London.
See paragraph 9 for the address of the DCS.
Des Thompson
- see paragraph 9 for contact address.