Licensing of land for killing and taking of certain birds
Section 9—Killing and taking of certain birds permitted only on land with section 16AA licence
53.This section creates a licensing scheme for land on which the killing and taking of certain birds is to take place. This is achieved through the amendment of the 1981 Act.
54.Under section 1 of the 1981 Act, it is an offence to (among other things) kill, injure or take any wild bird(6). Section 2 of the 1981 Act contains exceptions to this offence. At present, this allows the killing or taking of a bird (or the injuring of the bird in an attempt to kill it) if that bird is included in Part I of schedule 2 and if the killing, taking or injuring is done outside of the close season of that bird. Section 2(4) gives the periods of the year that constitutes the close season for certain types of birds. The killing or taking a wild bird includes the act of restraining it in order to kill or take it.
55.Section 9(2) amends section 2 of the 1981 Act to make it clear that no offence is committed under that section if the bird that was killed, injured or taken was also included in Part 1B of Schedule 2 and a licence under section 16AA was held in respect of the land on which the bird was killed, injured or taken. The net effect of the amendment is that the bird must be included in both Part I and 1B of schedule 2. It is a defence if the person who killed, injured or took such a bird had a reasonable belief that an unsuspended section 16AA licence was held in respect of the land. The existing penalty for an offence under section 1 applies:
on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding £40,000 (or both),
on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).
56.With respect to the requirement to have a licence under section 16AA, no offence is committed if a bird included in Part 1B of Schedule 2 is killed or taken (or injured in an attempt to do so) outside of its close season if a bird of prey was used to kill or take the bird. However, this requires that the person who killed or took the bird had the legal right, or permission, to do so. If a person injured the Part 1B bird in an attempt to kill it using a bird of prey and had to then subsequently kill the bird (in a manner that caused minimal possible suffering), the person would not have committed an offence. The net effect of this amendment would mean that falconers would not need to have a section 16AA licence or to check that one is in place, before they kill or take a bird using falconry. It would also mean that, if they had to shoot a Part 1B bird that was injured as a result of falconry in order to end its suffering, they would not need a section 16AA licence to do so.
57.Section 9(5) inserts Part 1B into Schedule 2. This covers the birds which may be taken or killed on land with a section 16AA licence. At present, new Part 1B only includes red grouse, however section 9(3) amends section 26 of the 1981 Act to enable the Scottish Ministers to make regulations to add or remove birds from Part 1B of Schedule 2. Birds included in Part 1B must also be included in Part I.
Section 10—Licensing: land on which certain birds may be killed or taken
58.This section amends the 1981 Act to create a licensing scheme for land on which the killing or taking of grouse is to occur. Licensing under this section only applies outside of the close season of the bird(7). Within the close season, the licensing requirements under section 16 of the 1981 Act apply.(8)
59.A licence under the inserted section 16AA relates to a specified area (or areas) of land for the purposes of permitting the killing or taking of a bird included in Part IB of Schedule 2 (which is inserted by this Act and currently includes only red grouse). As such, a person who kills, injures or takes such a bird on land that does not have a section 16AA licence in relation to it commits an offence under section 1 of the 1981 Act.
60.Applications must be made to the relevant authority (the Scottish Ministers or, if delegated under section 16A(1B) of the 1981 Act (as inserted by section 10(3)), Scottish Natural Heritage), who may issue the licence if satisfied that it is appropriate to do so having regard to the applicant’s compliance with the code of practice required under inserted section 16AC. Among other things, when applying for a licence the person must provide any such information as the licensing authority may require and pay a fee if required (and the licensing authority is required to publicise such information and fees that they require in the application process).
61.The licence itself must set out the matters such as the area (or areas) of land it applies to. The licence is subject to any reasonable conditions that the relevant authority attaches to it, such as a requirement to report on activities, or if there is more than one type of bird listed in Part 1B, the requirement to kill or take only the type or types of bird to which the licence relates. The licence may be modified, suspended or revoked by the authority. Every licence must be subject to the condition that the licence holder must have regard to a code of practice made in accordance with section 16AC. The relevant authority may modify the licence at any time. Grounds for suspension or revocation include a failure to comply with conditions of the licence and where the relevant authority is satisfied that a relevant offence has been committed. Relevant offences are listed in inserted section 16AA(13) and broadly cover related wildlife offences (such as offences under Part 1 of the 1981 Act relating to the killing and taking of wild birds and wild animals). These offences have been identified as being relevant as the grouse moor management review was undertaken to examine ongoing evidence of raptor persecution on or around grouse moors. The review also discussed the practice of wider predator control undertaken on grouse moors. This list can be amended by regulations under inserted section 16AA(14). The relevant authority is required to give 14 days’ notice of a suspension or revocation, but may specify an alternate notice period in the notice. Inserted section 16AA(11) provides that if a person’s licence is suspended, then they are treated as not having that licence for the duration of the suspension (and therefore they may commit an offence if they continue to act as if they have a licence).
62.If the relevant authority decides not to grant a section 16AA licence, or decides to modify, suspend or revoke a licence, they must provide the reasons for the decision to the applicant or, as the case may be, the licence holder.
63.Inserted section 16AB enables a person to appeal to a sheriff against a decision of the relevant authority to refuse to grant a section 16AA licence, to attach a condition to such a licence and to modify, suspend or revoke such a licence. Where the person resides in Scotland, the appeal must be made to a sheriff or summary sheriff of the sheriffdom in which the person resides. In all other cases, the appeal must be made to a sheriff or summary sheriff at Edinburgh sheriff court (see inserted section 16AB(8)).
64.Inserted section 16AC provides that the Scottish Ministers must prepare a code of practice relating to managing land to which a section 16AA licence relates. Inserted section 16AC(2) sets out the particular types of guidance that may be included in the code of practice. The code must be reviewed within 5 years and thereafter every 5 years after that and revisions can be made on the back of such a review. Inserted section 16AD allows for the functions of the Scottish Ministers in relation to the code to be delegated to Scottish Natural Heritage.
65.Inserted section 16AE requires the Scottish Ministers to prepare a report on the operation and effect of section 16AA licences and must include an assessment of the conservation status of the bird species specified in subsection (2). The report must be laid before the Scottish Parliament. A report must be prepared and laid for each reporting period (see subsection (6)). Inserted section 16AF allows the Scottish Ministers’ reporting functions under section 16AE to be delegated to Scottish Natural Heritage.
66.Section 10(3) amends section 16A of the 1981 Act to allow the Scottish Ministers to delegate, by written direction, their functions under section 16AA (other than the regulation-making power) to Scottish Natural Heritage.
67.Section 10(4) makes it an offence under the 1981 Act to make a false statement to obtain a section 16AA licence. The offence is liable, on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both). A judge may choose to impose a lesser sentence depending on the circumstances of the case. The standard scale for fines is set out in section 225 of the Criminal Procedure (Scotland) Act 1995. At the time of the Bill’s introduction, level 5 on the standard scale was £5,000.
68.Section 10(5) provides that regulations under section 16AA(14) are subject to the affirmative procedure.
Section 27 of the 1981 Act defines “wild bird” as any bird of a species which is ordinarily resident in or is a visitor to the United Kingdom or any member State or the European territory of any member State in a wild state but does not include poultry.
“Close season” is defined in section 2(4) of the 1981 Act.
See paragraph 28 above.
