The Act
Part 1—Wildlife Management
Licensing of land for killing and taking of certain birds
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.
“Close season” is defined in section 2(4) of the 1981 Act.
See paragraph 28 above.
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