Tag: scottish parliament

Last month I raised concerns about NatureScot’s proposed framework that it will use when making decisions about whether to modify, suspend or revoke the new grouse shoot licences that form part of the Wildlife Management and Muirburn (Scotland) Act 2024 (that blog can be read here).

For new readers, this Act was introduced as the Scottish Government’s response to the continued widespread illegal killing of birds of prey on grouse moors. It will work on the basis that all red grouse shooting must now be licensed in Scotland under a section 16AA licence and if, on the civil burden of proof (i.e. the balance of probability) sufficient evidence is found that the licence has been breached (including evidence of illegal raptor persecution), the licence can be withdrawn as a sanction, preventing the shooting of red grouse on a particular estate for a period of up to five years.

NatureScot published its proposed decision-making framework in July 2024, as follows:

My biggest concern about the framework was that NatureScot was proposing that a licence might not be suspended / revoked if “corrective action could effectively be taken to bring the licence holder in line with relevant licensing conditions, within a timeframe usually not exceeding 12 months“:

NatureScot didn’t define “corrective action” and I argued that the removal and replacement of a gamekeeper could be considered to be “corrective action”, in which case NatureScot would effectively be providing estates with a massive loophole to be be exploited because the estate could simply perpetually replace ‘dodgy’ gamekeepers that fell under suspicion and thus never suffer the consequences of a licence suspension/revocation for wildlife offences.

I’ve since written to NatureScot to ask for clarification on that issue and a few other concerns about the proposed framework. I’m grateful to Robbie Kernahan from NatureScot’s senior leadership team for his responses, as follows:

1. Please can you explain whether evidence provided by the Scottish SPCA will be accepted in NatureScot’s decision making? And if it won’t be accepted, what the rationale is for that?

NatureScot can consider evidence gathered through SSPCA in line with the arrangements they are developing with Police Scotland.

2. How will NatureSot define ‘minor’ and ‘of a serious nature’ when considering the level of non-compliance?

We recognise there will be a spectrum of potential issues which may arise associated from non-compliance of conditions of licence, through to offences under the relevant legislation. For instance, returns not being made within the defined period – would be a compliance issue, but one which could be rectified without necessarily recourse to suspension or revocation, and may therefore be considered to be ‘minor’. NatureScot being satisfied that a relevant offence has been committed on the land by the licence holder or a person involved in managing the land to which the licence relates, is likely to be considered to be ‘of a serious nature’.

3. How will NatureScot determine whether a relevant offence has been committed by ‘the licence holder or a person managing the land’? It seems to me that this difficulty is precisely why the licensing scheme has been introduced, because it’s often not possible to identify the individual responsible for an offence.

NatureScot will consider such evidence as is made available to us.  We anticipate that the primary source of evidence will be provided by Police Scotland, supplemented by any additional intelligence available to us. This will be on a similar basis to the evidence provided to us in considering the restriction on use of General licences. There may be cases in which NS will be satisfied, based on the evidence available, that a relevant offence has been committed on the land by the licence holder or a person involved in managing the land to which the licence relates, and as you note, where that evidence would not necessarily satisfy the standard of proof required for a criminal conviction of the relevant offence.

4. How will NatureScot define ‘corrective action’ when considering a decision to suspend/revoke a licence? Will that include the removal (by the estate) of an individual gamekeeper? If so, what are the implications for a prosecution (of that gamekeeper) or for vicarious liability (of the licence holder)? And why would the removal of one gamekeeper, presumably to be replaced by another one, solve the problem? How many times can an estate remove and replace a gamekeeper, without the estate being sanctioned?

The corrective action we envisage in this is likely to be around administrative issues (supply of returns)  or other minor breaches which could be rectified quickly – not for wildlife crime.

These responses provide some reassurance but not all are as convincing as they might have been.

For example, on question 1, the arrangements between the SSPCA and Police Scotland for investigating and reporting suspected offences has not yet been made public (and may not become public) so the question of whether NatureScot will accept evidence provided by the SSPCA is still not clear. Remember, this arrangement between Police Scotland and the SSPCA relates only to the SSPCA’s increased investigatory powers for incidents where a live animal is not involved. The SSPCA is already a statutory reporting agency in its own right for offences under section 19 of the Animal Health and Welfare (Scotland) Act 2006, which is included in the ‘relevant list of offences’ [for which a licence may be suspended/revoked] under Naturescot’s proposed framework so it’s not clear to me why there’s so much opaqueness about whether evidence provided by the SSPCA will be accepted by NatureScot, especially in relation to offences under the Animal Health & Welfare Act.

On question 2, I think NatureScot’s explanation is clear and its rationale for distinguishing between ‘minor‘ non-compliance breaches and those ‘of a serious nature‘ seems sensible and fair.

On question 3, I think this is a reasonable response in as much as NatureScot can’t predict the type of evidence that will be available as each case (and thus available evidence) will be different. NatureScot has done a fairly good job so far of assessing evidence in relation to the General Licence restrictions it has imposed so we’ll have to wait and see whether that standard will be applicable for the suspension/revocation of section 16AA licences, which ultimately can be (and undoubtedly will be) challenged by the licence holder in a Sheriff Court.

On question 4, the definition of “corrective action“, I’m pleased to see the clarification from NatureScot that corrective action “is likely” to be associated with administrative breaches and not for wildlife crime, although I would have preferred to have seen this written as “will be” rather than “is likely” to be.

However, I’m still concerned that this “corrective action” loophole is included in the framework under the section headed ‘suspending or revoking a licence’. If NatureScot’s intention is to apply this measure for minor admin breaches only, why wasn’t it included in the section headed ‘modifying a licence’, which specifically deals with minor breaches, instead of the section headed ‘suspending and revoking a licence’, which deals with more serious breaches (i.e. criminal offences)?

Hmm. One to watch, I think.

The Wildlife Management & Muirburn (Scotland) Act 2024, passed by the Scottish Parliament in March 2024, introduces a grouse moor licensing scheme in Scotland which begins in August.

For new readers, this Act was introduced as the Scottish Government’s response to the continued widespread illegal killing of birds of prey on grouse moors. It will work on the basis that all red grouse shooting must now be licensed in Scotland under a section 16AA licence and if, on the civil burden of proof (i.e. the balance of probability) sufficient evidence is found that the licence has been breached (including evidence of illegal raptor persecution), the licence can be withdrawn as a sanction, preventing the shooting of red grouse on a particular estate for a period of up to five years.

This licensing scheme, although not without its flaws, has been generally welcomed by most in the conservation sector because, after decades of getting away with it, finally it looked like grouse moor owners would be held to account for the crimes committed by their employees (e.g. see here).

However, from what I’ve just read, I think the licensing authority, NatureScot, has just handed the grouse moor owners a massive ‘get out of jail free’ card.

NatureScot has recently published the framework it will use to outline its approach to modifying, suspending or revoking the section 16AA licence. We’re all familiar with the general principle of how NatureScot uses frameworks to implement decisions, e.g. see here for the framework it uses when deciding whether to impose a General Licence restriction on estates where there’s evidence of wildlife crime.

That decision framework has been fairly robust, resulting in a number of GL restrictions (including the latest one yesterday on Lochindorb Estate) and as far as I can tell, all the appeals sanctioned estates have made against their GL restriction have failed (e.g. see Leadhills Estate failed appeal here, Moy Estate failed appeal here, Invercauld Estate failed appeal here).

In fact the ‘ultimate’ appeal against NatureScot’s decision framework to impose a General Licence restriction, a judicial review brought by Raeshaw Estate, demonstrated that NatureScot’s framework was based on solid principles (see here) although I’d still argue that the GL restriction is only useful as a reputational driver, not as a serious sanction because sanctioned estates can simply apply to NatureScot for an individual licence that permits them to continue doing the activities that are supposedly forbidden under the General Licence restriction (see here for background discussion).

Indeed, it’s precisely because the General Licence restriction hasn’t been effective (in stopping raptor persecution on grouse moors) that the Scottish Government decided to bring in the more serious sanction of grouse moor licensing.

I think many of us have been focused on the detail of the new Grouse Moor Code of Practice that outlines the things that grouse moor owners can and can’t do under the new grouse moor licensing scheme, and none of us gave much thought to the framework that NatureScot would devise to help it make decisions on licence withdrawals. That was a mistake on our part.

Here is the decision framework that NatureScot will use to determine whether grouse moor licences will be revoked under the new legislation:

I’ve not had time to go through this in detail but already I can see areas that need questioning, such as why the evidence NatureScot will use to base its decision on modifying, suspending or revoking a licence will only be accepted from Police Scotland and NatureScot staff. Why won’t evidence from the Scottish SPCA be used? Surely this is an oversight, given that the new legislation has created increased investigatory powers for the SSPCA and the relevant offences for which a licence may be revoked include those under the section 19 of the Animal Health and Welfare (Scotland) Act 2006, an area of expertise for the SSPCA.

However, the most glaring issue I’ve found so far in this framework is this:

What the hell is ‘corrective action’?? What does that even mean? Does it mean that if a grouse moor estate sacks one of its gamekeepers and replaces him/her with a different one, the estate gets to keep its section 16AA grouse shooting licence because the estate has been seen to have taken ‘corrective action’?

Does that mean that a grouse shooting estate can continually replace gamekeepers, every time an offence has been committed, to avoid ever having its 16AA licence revoked?

If that is what ‘corrective action’ means then this new grouse shooting licence isn’t worth the paper it’s written on. Raptor persecution will continue, criminal gamekeepers will just be moved around to work on different estates (this already happens) and grouse moor owners will never be held to account.

I don’t have time to write anymore today but I’ll be talking with others, including legal advisors, and questions will need to be asked of Ministers.

In haste…

UPDATE 8 August 2024: NatureScot provides clarification on its framework for suspending new grouse moor licences (here)

Following the Scottish Parliament’s approval of the Wildlife Management & Muirburn (Scotland) Act 2024, which introduces a licensing scheme for the shooting of red grouse in Scotland in another attempt to bring an end to the ongoing illegal killing of birds of prey on many Scottish grouse moors, the landowners’ lobby group, Scottish Land & Estates (SLE) hosted a Moorland Conference on 11 June 2024 and invited Minister Jim Fairlie to speak.

I was interested in what the Minister would say so I asked the Scottish Government for a copy of his notes/speech.

This is what the Scottish Government sent to me:

There was a caveat at the end of the letter from the Scottish Government that went like this:

“I would like to advise you that the actual speech by Minister Jim Fairlie, when he addressed the Moorland Conference on 11 June 2024, is likely to differ to the copy of the speech and/or prompt notes provided to him“.

I don’t think there’s anything particularly surprising in the copy of the speech that’s been provided – there’s nothing here that Fairlie didn’t say during his time on the parliamentary committee that scrutinised the Bill at stages one and two, nor during his time as Minister as he steered it through the Stage 3 debate before the Parliament voted to approve the Bill.

Nevertheless, it’s always a good idea to keep track of what Ministers are saying at private meetings, not least to be able to hold them to account if they renege on their previous commitments but also to be able to side-step any hyped-up claims of what’s been said by anyone wishing to present a distorted narrative.

For example, I read a review of the conference that focused heavily on Fairlie’s favourable comments about the grouse shooting industry but was predictably light on his comments linking illegal raptor persecution to grouse shooting.

Fairlie has always been clear about that undeniable link, especially during his time on the Rural Affairs Committee when it was scrutinising the Bill (here) so it’s good to see him reiterate that again to the grouse shooting industry, even though it was sandwiched between some top level fawning.

Part of the Wildlife Management & Muirburn (Scotland) Act 2024, which requires that the shooting of all red grouse will require a licence, is set to be in place for the opening of the grouse-shooting season on the Inglorious 12th August 2024.

For new readers, this Act was introduced as the Scottish Government’s response to the continued widespread illegal killing of birds of prey on grouse moors. It will work on the basis that all red grouse shooting must now be licensed in Scotland and if, on the civil burden of proof (i.e. the balance of probability) sufficient evidence is found that the licence has been breached (including evidence of illegal raptor persecution), the licence can be withdrawn as a sanction, preventing the shooting of red grouse on a particular estate for a given period.

The Act achieved royal assent on 30th April 2024 (see here) and we’ve been waiting for a formal commencement date (i.e. when the Act becomes legally enforceable).

The legislation required for commencement has now been published and confirms the widely anticipated expectation that the grouse shooting licence would be ready for the start of this year’s season (complete with the associated Grouse Moor Code of Practice) and that the Muirburn licence won’t be ready until at least next year.

The commencement legislation in the form of a statutory instrument can be read here (and is reproduced below). It’s a necessarily turgid piece of technical legalese but the most important information is the commencement date, and that all looks on track.

Grouse moor owners will shortly be applying to NatureScot for their 16AA licences, which ties them to comply with the associated and soon-to-be-completed Grouse Moor Code of Practice. It’ll be interesting to see how long it takes for an estate to breach the terms of its licence and how any subsequent enforcement and sanction is handled.

Here’s the statutory instrument announcing the commencement dates:

Press release from REVIVE, the coalition for grouse moor reform in Scotland, ahead of today’s debate on the Agriculture Bill:

AGRICULTURE BILL AMENDMENTS COULD STOP BIG FARMING PAYOUTS FOR GROUSE SHOOTING ESTATES

REVIVE, the coalition for grouse moor reform, has welcomed amendments to the Agriculture and Rural Communities (Scotland) Bill that could end generous public funding for grouse shooting estates.

The Stage 3 bill is due to be debated by the Scottish Parliament this afternoon (Tuesday 18 June).

The amendments (#37, #38 and #39) were submitted by Scottish Greens MSP Arianne Burgess. They seek to address the issue of shooting estates being indirectly supported by farm subsidies, with some estates receiving hundreds of thousands of pounds of public money each year.

The amendments would allow ministers to:

#37: rule out specific land uses from getting agricultural subsidies in the future;

#38: end public funding for estates where the primary activity on the land is driven grouse shooting;

#39: ensure that wildlife criminals and irresponsible owners cannot benefit from public funding.

 Eliza Chiswell, REVIVE Campaigner, said: 

“REVIVE welcomes Ariane Burgess MSP’s amendments to the Agriculture Bill that would potentially stop grouse shooting estates from receiving public money.

“At its launch in 2018, REVIVE expressed shock that shooting estates could be receiving subsidies and it continues to be very concerned that large sums of public money is indirectly supporting, amongst other things, the killing of hundreds of thousands of foxes, stoats, weasels and crows so that more hundreds of thousands of grouse can be shot for entertainment.

“It is deeply worrying, for example, that an estate like Invermark, which is “principally a sporting estate” [see here] in 2023 received public money to the tune of £213,545 [see here].

“REVIVE has asked its supporters to tell all MSPs that these amendments have strong public support because they ensure that valuable public money supports food production rather than shooting. We hope the amendments receive strong cross-party support and prove to be successful.”

ENDS

The Scottish Greens have also issued a press statement ahead of today’s debate:

The Scottish Government must curb public subsidies for shooting estates and instead use it to support small farmers and the transition to greener agriculture, say the Scottish Greens.

The call comes ahead of the Scottish Parliament voting on the Agriculture and Rural Communities (Scotland) Bill, which will have its final vote this week.

The Scottish Greens rural affairs spokesperson, Ariane Burgess MSP, will be moving amendments that would end subsidies for land that is dominated by grouse moors and boost support for small farmers.

Shooting estates are being indirectly supported by farm subsidies, with one example cited by the REVIVE coalition as having received over £200,000 a year. This allows them to continue the damaging practices of widespread burning of peatland vegetation and the unnecessary killing of our wildlife.

Ms Burgess, said: “It’s grossly unfair that enormous shooting estates are benefiting from subsidies paid for by the taxpayer. 

“This is public money that should be invested in supporting farmers and rural communities to transition to net-zero, but instead it’s being pocketed by giant landowners and is effectively subsidising the management of Scotland’s uplands for bloodsports.

“My amendments would prohibit subsidies for driven grouse moors, and ensure that Scottish Ministers cannot hand out public money to wildlife criminals. I hope that all MSPs who are concerned about animal welfare will support these amendments.

“The last 14 years have been painful for a lot of people. The last thing we should be doing in a cost of living crisis is handing out subsidies to wealthy landowners for organised cruelty.”

Ms Burgess will also be moving amendments that would support farmers to reduce the environmental impacts of the agriculture industry and assist small to medium scale farmers, crofters and growers to purchase land for food production.

Ms Burgess added: “Small scale farmers play an invaluable role in our food production and in their communities, but, with the current pressures, many are finding it harder to run a sustainable business. 

“Many of them are young and new entrants, and I hope that this bill will provide them with extra support to allow them to purchase and enhance the land around them.”

ENDS

The Stage 3 debate on the Agriculture Bill is expected to start around 3pm in the main chamber and can be watched live on Scottish Parliament TV here.

The Wildlife Management & Muirburn (Scotland) Act 2024, which received royal assent on 30th April 2024 (here), is the long-awaited legislation that introduces a licensing scheme for red grouse shooting in Scotland.

It was introduced as the Scottish Government’s response to the continued widespread illegal killing of birds of prey on grouse moors. It will work on the basis that all red grouse shooting must now be licensed in Scotland and if, on the civil burden of proof (i.e. the balance of probability) sufficient evidence is found that the licence has been breached (including evidence of illegal raptor persecution), the licence can be withdrawn as a sanction, preventing the shooting of red grouse on a particular estate for a given period.

This is a significant improvement on the previous situation, where grouse-shooting was mostly unregulated and the evidence required to secure a conviction had to meet the higher threshold of the criminal burden of proof (i.e. beyond reasonable doubt), which was near enough impossible to achieve given the remoteness of the crime locations and the lack of witnesses. Even when a gamekeeper was successfully convicted, the shooting estate rarely suffered any consequences and red grouse shooting could continue as before.

As part of the Wildlife Management & Muirburn Act, two new Codes of Practice are being developed to support the new law – a code of practice for grouse moor management and a code of practice for muirburn. If an estate breaches the terms of these new codes, its licence to shoot red grouse can be removed.

Following an update I wrote last month about the development of these two new codes (see here), there has been further progress on the grouse moor management code (referred to as the Grouse Code).

It is still in draft format but is said by officials to be ‘approaching a final version’. It’s anticipated that the Grouse Code will be in place for the start of the grouse shooting season on the Inglorious 12th August whereas the Code of Practice for Muirburn is not expected to be finalised until early 2025.

The latest draft version of the Grouse Code can be read/downloaded here:

Scotland’s statutory nature conservation agency, NatureScot, has finally started its species licensing review.

The Scottish Government’s Programme for Government 2021-2022 included a commitment to, ‘Review the wider species licensing system with a view to ensuring that the law is being applied correctly and that lethal control is only licensed where the conditions required for such a licence are demonstrably being met. The review will also assess the potential to apply the principle of full cost recovery to species licensing and the introduction of a public register of licenses to improve transparency‘.

This was also included in the shared policy agreement between the Scottish Greens and the SNP in 2021.

NatureScot issues approx 90 different types of licences each year to cover all sort of activities that otherwise would be illegal, e.g. Disturbance licences to Raptor Study Group members whose nest monitoring activities would otherwise disturb Schedule 1 raptor species, individual and general licences to kill various wild birds to prevent damage to livestock and crops and to protect public health and safety, licences to use certain traps to kill wild mammals, licences to kill mountain hares to prevent damage to trees, licences to permit the hunting of mammals with more than two dogs, and of course the imminent licences that will be required for grouse moor management under the new Wildlife Management and Muirburn (Scotland) Act 2024.

NatureScot has just published its Terms of Reference (see below) for its Species Licensing Review and there are three main objectives:

1. Ensure that the law is being applied correctly and that lethal control is only licensed where the conditions required for such a licence are demonstrably being met;
2. Assess the potential to apply the principle of full cost recovery to species licensing;
3. Assess the potential to introduce a public register of licenses to improve transparency, bearing in mind data protection and safety of licence holders.

Objective #1 is obviously important and follows on from significant reviews of the General Licences in England, Wales and Northern Ireland after legal challenges from Wild Justice.

Objective #2 became a prominent topic of discussion during the debates on the Wildlife Management & Muirburn Bill – it was widely argued by conservationists that grouse moor owners should pay a fee for their licences, not only to cover the admin costs of issuing the licences but especially to cover subsequent compliance monitoring, which should not come at a cost to the public purse.

Objective #3 is interesting – a searchable public register of licences would be useful, especially if licence holders are required to provide annual licence returns (e.g. how many red grouse were lawfully shot in a particular area in a given season?).

The anticipated timetable for the review is provided in the Terms of Reference and it’s suggested that a report will be ready for external review in October 2024.

The Terms of Reference can be read/downloaded here: