The SGA will also give evidence to the Committee on 14th June.
Below, we give members the opportunity to read the SGA response in full. As ever, the SGA's imperative during the passage of the Bill will be to protect the jobs and practices of our members, who carry out such beneficial work in Scotland.
Q1. Do you agree with the proposed ban on the use and purchase of glue traps (sections 1-3)?
No view.
Wildlife traps
Q2. Do you agree there is a need for additional regulation of the use of certain wildlife traps?
No. See below.
Q3. Do you agree with the proposed licensing system for the use of certain wildlife traps (sections 4-5)?
This response is in 2 sections. 1/ Trap licensing and 2/ Trap offences relative to the grouse licence.
Firstly, The SGA will support licensing of certain traps (with additional provisions, below) if this has the dual effect of further professionalising wildlife management in Scotland and the increased professionalism being acknowledged across the Parliament as a result.
The SGA believes professional predator management by skilled gamekeepers (operating legal traps and snares) is a vital act of conservation and needs to be recognised as such by the Scottish Parliament.
Best practice legal trapping and snaring confers a benefit on the survival of fragile species, particularly those nesting on the ground which are more vulnerable to nest and chick predation.
Scotland has a rising population of generalist predators such as foxes, stoats and corvids and, as a result, we are losing ground-nesting species (which the public love) at a disproportionate rate, albeit significantly less so in areas where professional gamekeepers apply consistent and often joined-up legal predator management at a landscape scale. The loss of ground-nesting species will only continue to rise as we move towards a tree cover target of 21% by 2032. Forestry provides prime cover from which generalist predators can emerge to hunt their prey.
If we are to truly address the challenges of the Nature Emergency, particularly for ground-nesting species, we need to acknowledge and encourage skilled legal predator management in Scotland ( by whomever ) to address the imbalance, whether or not the primary purpose of said predator control is to protect an economic interest. The same fox or crow that would eat a lamb or a grouse would eat the chicks of a Curlew. The stoats being eradicated on Orkney to protect native wildlife have the same diets as the mainland stoats which are being controlled on private farms or landholdings. This legal predator control, too, is protecting native wildlife. Indeed, it is vital that this latter form of control continues and is encouraged because it carries far less burden on public finances. These land managers need to be embraced as a vital part of Team Scotland if we are to tackle the Nature Emergency together and in a way that can be afforded.
Given the above, we can accept licensing of certain traps, with the following caveats.
If traps are to be licensed, and require training and ID numbers, the penalties for any form of misuse must apply in the same way to all trap users, whether gamekeepers, farmers, pest controllers or (solely) conservation trap users.
Additionally, Scottish Government must finance the training and administration costs. Private enterprises are subjected to increased costs and this legislation will impose further unplanned burdens at a time when there is far less money circulating in the rural economy.
NatureScot should only suspend a trapping licence, if it has solid evidence that a breach has been committed. It should not suspend a licence because an investigation is taking place. Should said investigation prove there is no case to answer, the trap user will have lost the ability to set traps for the time period of that investigation which is, again, unspecified and could go on for many months. In the case of a single-handed gamekeeper, licence suspension would impose a very heavy sanction, particularly if the individual is to be found innocent. Similarly, a junior beat keeper may have a beat removed from them if they cannot set legal traps to protect the birds they have been employed to protect, during a period of suspension. This could jeopardise their continuing employment and a tied home (‘the right to a home’ falls within Article 8 of ECHR which this licensing scheme is obligated to take account of). This sanction is too broad and could be subject to legal challenge under ECHR. It should, therefore, be reviewed. If it is to remain in the Bill, the rights of the individual should be better protected by placing specific time limits on investigations.
For a number of years, the SGA has campaigned for a specific offence for deliberate vandalism of, or tampering with, legal predator control tools. This legislation represents the perfect opportunity to make it an offence for someone to vandalise, tamper with, render unsafe or inoperable, a licensed trap or snare. The penalties can be brought in line with other wildlife related offences, for consistency. There are no other industries in Scotland where it would be tolerated for members of the public to enter a workplace and vandalise someone’s work tools, with no risk of penalty.
Police Scotland have discussed with the SGA the problem of not having a specific offence for trap vandalism or tampering. This arguably contributes to the fact that, despite it being a high frequency crime, there has never been a successful charge in Scotland. If this was another crime type, such a low level of prosecutions in relation to the high number of incidents would be advocated as an argument to justify further regulation on the grounds that the law, as it stands, is clearly not working.
We would argue this example is no different. Should someone tamper with a legal trap, it increases the risk that the trap can cause harm to wildlife. As a result, the trained and licensed person whose name is lawfully on that trap could be placed in a position of liability for an offence they did not commit. On top of a potential penalty, a trapping offence, in the legislation (as it stands) also has the potential to see a grouse licence refused on the area of ground where the trap was located. Given the extent of the ramifications, therefore, tampering with legal, licensed tools must become an offence, in order to deter this type of activity which is all too common and, in some quarters sadly condoned. We ask that the Committee supports this call and that this is reflected in amendments to the Bill at Stage 2.
To support this call, in 2019, the SGA produced a member survey highlighting the extent of damage to legal predator control tools by third parties, as well as other crimes. Many of these occurrences contain Police incident or crime numbers, as can be seen in the link below, but have led to no charges being brought. https://www.scottishgamekeepers.co.uk/pdfs/Survey-Findings-2019.pdf
2/ Trap offences leading to a refusal of a grouse license:
The SGA doesn’t agree that trap offences could mean a grouse licence is not granted. An exception to this view would be where there is proven evidence of a trap being deliberately misused to persecute a raptor. The legislation, in all prior stages, carried the purpose of tackling raptor persecution due to the perception that other measures had not adequately reduced this. Therefore the means by which a licence can be removed ought to be restricted to offences involving raptors in order to be proportionate and to meet the intended legislative purpose.
Making it the case that a trap offence can cause a grouse licence not to be granted also creates a legal problem.
For example, two people can commit the exact same trapping offence. If one offence is on a grouse moor with a licence, the offender can be penalised for the trap offence and this can potentially trigger a grouse licence refusal on that ground.
The other person, who commits the same offence but away from a grouse moor, is only penalised for the offence itself. Making a trap offence a potential trigger of licence refusal for grouse shooting introduces a problem of inequity, therefore. If this is to remain in the Bill, other trap offences should have equivalent penalty weighting applied to address this inequity or this should be removed as a potential reason for a grouse licence not to be granted.
Licensing scheme for land used to shoot red grouse
Q4. Do you agree there is a need for additional regulation of land to be used to shoot red grouse? No.
Q5. Do you agree with the proposed licensing system for land to be used to shoot red grouse (sections 6-7)?
We have issues with a number of the provisions.
1/ The Bill opens the possibility of other birds being added to the Licence at a future point. We feel this is not proportionate to the Bill’s aims and should be removed. The Bill is about grouse. If, at any point in future, Scottish Parliament wishes to scrutinise the taking of other birds which are not grouse, this should be subject to a full review- in the same way as this one has been conducted- and, if it is deemed that changes are required, this should be through the vehicle of new primary legislation.
As set out in the Policy memorandum, the licensing regime is being introduced to address concerns about raptor persecution relating to grouse shooting, specifically, as set out in the Werrity Report. Nowhere in the Werrity Report is reference made to raptor persecution related to the shooting of other species of birds. Nevertheless, through the proposed amendment to s.26(3)(c), the Government is given a broad power to subject the shooting of other species to the proposed licensing regime. Such a power is not necessary to meet the stated policy objectives of the Bill and, given the impact of such a decision on the private lives and property rights of gamekeepers engaged in the management of such additional species, is disproportionate.
If the licensing provisions are not proportionate to the aim, there are grounds for a legal challenge as regards the impacts of the legislation on the human rights of gamekeepers, principally, Article 8 (right to respect for private and family life) and Article 1 Protocol 1 (protection of possessions).
2/ Suspension of licences: The Bill hands Scottish Natural Heritage the power to suspend a grouse licence, if an investigation is underway. This hands extensive power to the regulator but does not provide sufficient safeguards for those under investigation.
Consider this real world example: https://www.thescottishfarmer.co.uk/news/23481464.police-outright-lies-cause-wildlife-crime-case-collapse/
In April 2023, a gamekeeper was acquitted of illegally trapping a sparrow hawk after the Police lied as to why they were visiting the estate, claiming to land managers they were looking for a missing person. In August 2020, the Police had received a tip off from RSPB Scotland that the protected raptor was ‘beside a trap’. The bird was later released unharmed.
Under this Bill, Scottish Natural Heritage would have had the ability to suspend a licence because an investigation was underway. That licence would have been suspended, likely, from around August 2020 to around April 2023 - a considerable length of time.
This real life example shows a range of problems with allowing Scottish Natural Heritage the freedom, in the Bill, to judge that a licence should be suspended, before actual evidence is heard.
It shows, primarily, that a licence holder can be unfairly punished through the suspension of a licence, where there is not the evidence to justify that suspension.
This could mean considerable loss of business income, potentially running into hundreds of thousands of pounds, and- as a result of lost revenue- it could threaten the employment of staff and any tied family home connected with that employment. Who compensates for this loss? Scottish Natural Heritage, Scottish Government, the courts? As stated previously, the right to enjoyment of a home is an Article 8 right under ECHR and Scottish Government has a duty to legislate compatibly with the Convention under s.6 of the HRA and s.57 of the Scotland Act.
This case study also clearly demonstrates the problems in evidence gathering where unaccountable charities, with campaign objectives, are involved in cases in which they have a secondary interest.
The court heard that RSPB Scotland, who actively campaign for grouse licensing, alerted the Police there was a bird ‘beside a trap’. This is, of itself, not an offence. Resulting from this, Police then lied as to why they were entering that ground to investigate the information given to them by RSPB Scotland. The resultant evidence was thrown out by the court as inadmissible but it should be remembered that this is how wildlife incidents, directly falling within the scope of this licensing scheme, are currently investigated in Scotland today, with some non-accountable bodies being allowed to assume investigative roles. Indeed, RSPB Scotland has been in receipt of public money, through Government agencies, to assist their wildlife investigations operation. The inclusion of campaigning groups in cases where they have a secondary interest does not provide adequate legal safeguards for those under investigation. Operations can be open to abuse and - in this real life case- could have led to a business being left without a grouse licence to carry out its legitimate economic activity, for a considerable period of time.
The ability for Scottish Natural Heritage to be able to suspend a licence while a case is being investigated should be removed from the Bill, therefore. Scottish Natural Heritage should only suspend or revoke a licence when it has proven evidence that a raptor persecution offence has been committed, not if they feel they have some suspicion that it may have.
Should this remain in the Bill, strict time limits would have to be placed on investigations or otherwise a business could have to suffer loss of income for an unspecified amount of time; in the above case, 20 months.
To protect the accused and fairness in law, non-accountable, non-neutral bodies should not have investigative roles in cases where they have a campaign interest in the outcome, neither should they be funded by Scottish Government or its agencies. As an accountable, neutral body, Police Scotland should be the sole investigating authority.
3/ Code of Practice: The Bill states that compliance with a Code of Practice will be one of the factors influencing whether a licence is granted or not. At the time of this Bill receiving assent, those subjected to its rules will not have seen the Code of Practice to which it refers and they will have to comply. This is, in itself, unsatisfactory.
Further to this, the Bill, under s.16AD gives the Government the power to delegate the preparation, publication and revision of the Code of Practice to Scottish Natural Heritage; and under s.16AD, the Bill requires mandatory consultation with Scottish Natural Heritage only.
We feel this power is too wide. If the Code of Practice is to be fair and proportionate, firstly, it must require a range of relevant stakeholders (including SGA) to be part of the process and that this process should be undertaken in time for the Bill to be passed.
4/ Offences: The range of offences included in the Bill goes beyond what is necessary to prevent raptor persecution connected to grouse shooting, which is the stated policy objective of the licensing regime. Accordingly, the impact on gamekeepers of a decision to decline, suspend or revoke a licence on the basis of an offence under, for example, the Hunting with Dogs Bill, will necessarily be disproportionate. This Act has only recently received royal assent and, as yet, is still to have an active licensing regime concluded.
Only those offences which are directly linked to raptor persecution connected to grouse shooting can justifiably be included in the list.
Additional powers to investigate wildlife crime
Q6. Do you agree with the proposal to give the Scottish SPCA additional powers to investigate wildlife crime (section 8)? No.
SSPCA have openly campaigned against certain aspects of grouse management.
There should be no formal role for campaigning organisations in the collection of evidence relevant to a decision to suspend or revoke a licence, particularly where they may have a conflict of interest. The collection of such evidence should only be carried out by neutral, impartial and regulated bodies. Campaigning organisations do not meet these criteria. In order for the licensing scheme to meet the requirements of lawfulness, for the purposes of Article 8, ECHR, fairness and procedural safeguards should be built into the scheme. Giving further powers to a non-statutory body, with a campaigning objective, runs contrary to this. Please see Point 2, above.
SSPCA is not bound by regulations relating to Disclosure because they are a charity, making them unaccountable in comparison to Police Scotland.
SSPCA do not have (or follow) the same requirements for logging, storing and registering of evidence and productions as Police Scotland.
The Police and Fire Reform (Scotland) Act made it a requirement for Constables, upon appointment, to make a declaration before a sheriff that they would discharge their duties with fairness, integrity, diligence and impartiality and that they would uphold fundamental human rights and accord equal respect to all people. Members of a campaigning organisations are not bound by that ethos and are accountable only to their own organisations. Impartiality is a fundamental aspect of Scots law and the decision to extend more powers to an unaccountable charity will have wide-reaching ramifications for the law in Scotland.
Since this issue was last considered by Parliament and the Justice Committee, wildlife crime has been recognised as serious crime, carrying up to 5 year jail sentences in Scotland. Similarly Police Scotland has been given new investigative powers such as the use of surveillance and have the support of a resourced network of wildlife liaison officers stretching across the country. Scottish Government treats wildlife crime as a national priority and we are confident that Police Scotland already have adequate expertise, resource, processes, new and additional powers and support to investigate wildlife crime in Scotland in an effective and impartial manner, without more, and separate, powers being conferred on non-statutory bodies whose allegiance is to their Board or ruling Committee.
Police Scotland employees go through a rigorous standard process and training prior to taking up specific roles in the service.
Should a Police officer attend a property, individuals will be confident that they are trained and that anyone accompanying them will have been subjected to the appropriate checks which are put in place to safeguard the public.
What are the processes or standards by which SSPCA investigators are vetted or trained when investigating wildlife crime? What confidence can the public have that those accompanying SSPCA on a property have been vetted appropriately? The arbiter of that would be the SSPCA only.
For all of these reasons, conferring more powers on SSPCA should be rejected.
Licensing scheme for muirburn
Q7. Do you agree there is a need for additional regulation for muirburn? No.
Q8. Do you agree with the proposed licensing system for muirburn (sections 9-19)?
If muirburn is to be licensed, we make the following points, as representatives of practitioners who have set more controlled fires in Scotland than anyone else with an active interest in this licensing scheme.
Changing the peatland definition from a depth of 50cm or more to 40cm or more has no evidential justification. This was acknowledged by Scottish Natural Heritage, who will administer said licensing scheme. In reviewing all the available science, they concluded that the evidence base to restrict muirburn on the basis of peat depth was inconclusive. In the absence of any conclusive evidence to suggest a change, the Bill should retain the current definition of 50cm and we ask that the Committee support this.
The reality of arbitrarily switching to 40cm, without evidential justification, will have the effect of taking more areas of Scotland out of active management.
We believe this to be a critical mistake at a time when Scotland is experiencing longer, drier summers and more frequent and bigger wildfires. The statistics on wildfire increase are undeniable. See: https://www.scotsman.com/news/wildfire-warning-as-new-figures-reveal-number-of-blazes-doubled-last-summer-3740922
Discouraging active management, in such circumstances, has the potential to endanger property, human life and Scotland’s climate targets. Who will take responsibility when this loss become reality? It is now a regular occurrence for homes to be evacuated in the UK due to wildfires. This cannot be ignored.
The Committee should consider the 2023 report from the UK Climate Change Committee which acknowledges the growing wildfire threat in the coming decades and the mitigating benefit of the management of surface vegetation and fuels, among other mitigations.
Muirburn is an activity which takes place above the surface, not below. Applying a peat depth restriction (as this Bill does) therefore, is effectively applying a rule in law to something which is unrelated to the activity itself. Where there is statistically far greater potential for fire to burn below the surface and into peat below is where unmanaged fuel load on the surface is very high, the ground is dry and conditions such as winds are favourable. This is most likely to manifest as a summer wildfire taking place outside of the legal muirburn season. Nine tenths of Scottish wildfires are now caused by members of the public taking access in the countryside. Scottish Fire and Rescue Service data backs this and it will be important for the Committee to hear their evidence.
There is no current science, or opinion, today which advocates allowing unmanaged surface fuels to build up, uncontrolled, in the landscape yet, by imposing more restrictions on muirburn on areas over 40cm peat depth (without evidential justification), this Bill effectively will do this.
Similarly, Scotland will be endangering peatland restoration sites which form a critical element of the Net Zero plan and the £250m investment of public money pledged up to 2030.
Failure to carry out active surface fuel management on these sites, as they become increasingly drier, will encourage that investment to literally ‘go up in smoke’. With a very high surface fuel load, unrestricted public access and the right conditions, these sites- and potentially the carbon stored in them- will be lost and will not recover in a timescale to play any meaningful role in the 2045 NetZero aspiration.
Additionally, the most recent, and the UK’s longest running science, is showing that well managed muirburn actually plays an active role in retaining the carbon stored in peatlands for longer (see table below) yet this Bill seems to be heading in the opposite direction, potentially to great cost, and with scant justification.
While we acknowledge the reference to wildfire prevention in the Bill, as a licensable purpose, we feel the Bill should better reflect the nature of the activity to which the licence applies.
Rather than pivoting the peatland licence around peat depth (50cm should remain in the absence of evidential justification), controlled muirburn should be permitted, in season, where vegetation height on the surface reaches the point where it represents a wildfire hazard. This should be made explicit within the licensable purpose as a reason for a licence to be granted on peatlands. This adopts a precautionary principle given that the increasing weight of science points to wildfire as being the biggest threat to peatlands and the carbon stored in them.
In order to obtain a licence for the activity, everyone should have to take the new training developed by NatureScot, SFRS, SGA and the regional moorland groups. This will ensure anyone undertaking controlled muirburn has been fully trained to do so safely and has the necessary equipment.
Instead of changing peatland definition to 40cm, the scheme could make it illegal to burn peat and the appropriate penalty can be applied. This does not discourage active fuel management over large areas of Scotland but recognises the vital importance of keeping carbon locked in our peatlands.
