Procès-verbal de la deuxième séance, mardi 11 septembre 2001
There shall continue to be a commission known as the Deer Commission for Scotland (in this Act referred to as “the Commission”) which shall—
in accordance with the provisions of this Act, further the conservation, control and sustainable management of deer in Scotland, and keep under review all matters, including their welfare, relating to deer; and
exercise such other functions as are conferred on them by or under this Act or any other enactment.
It shall be the duty of the Commission, in exercising their functions, to take such account as may be appropriate in the circumstances 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.
The Commission shall carry out their functions in accordance with such directions of a general character as may be given by the Secretary of State.
The Commission shall be appointed by the Secretary of State and shall consist of a chairman and such number of other members, being not less than nine nor more than twelve in total, as the Secretary of State considers appropriate to represent the interests of persons or organisations concerned with each of the matters mentioned in paragraph (a) of subsection (5) below; and subsections (5) and (6) below shall apply to the appointment of the members other than the chairman.
Subject to subsection (4) above and subsection (6) below, the Secretary of State may appoint any person who appears to him— to be a member of the Commission; and, subject to subsection (6)(c) below, of the persons so appointed, at least one third shall be persons having knowledge or experience of deer management.
to have knowledge or experience of one or more of the following matters— in so far as that matter may be affected by the Commission’s exercise of their functions; and
deer management;
agriculture (including crofting);
forestry and woodland management; and
the natural heritage,
generally, to be an appropriate person,
Before making an appointment under subsection (5) above, the Secretary of State shall—
afford to such organisations as appear to him to represent the interests of persons concerned with the matters mentioned in subsection (5)(a) above an opportunity to suggest the name of any person who would in their view be an appropriate person for such an appointment;
consider any such suggestions; and
where names have been suggested by organisations representing the interests of deer managers, select the one third of the Commission referred to in subsection (5) above from among those names.
Schedule 1 to this Act (which makes supplementary provision with respect to the Commission) shall have effect.
The Commission shall—
advise the Secretary of State on any such matter relating to the purposes of this Act as he may refer to them; and
bring to his attention any matter relating to deer of which in the opinion of the Commission he ought to be apprised.
The Commission shall make an annual report to the Secretary of State on the exercise of their functions under this Act.
The Secretary of State shall lay a copy of the report made under subsection (2) above before each House of Parliament, together with such comments as he may think fit to make.
The Commission shall have power—
to issue guidance or advice, whether general or particular, to any person or organisation; and
to conduct, or to collaborate with any person or organisation which is conducting— relating to the conservation, control or sustainable management of deer or to any other aspect of the Commission’s functions.
any research, inquiry or investigation into questions of practical or scientific importance; or
any experiment, trial or demonstration,
For the avoidance of doubt, it is provided that the Commission may exercise the powers conferred by subsection (1) above in relation to the general welfare of deer, in so far as that matter is not otherwise included in their functions under this Act.
Subject to the approval of the Secretary of State, the Commission may appoint for any locality a panel for the purposes of this section consisting of such number of persons, not exceeding nine, as they consider appropriate, one of whom shall act as chairman.
Before making an appointment under subsection (1) above, the Commission may afford to such persons or organisations as they think fit an opportunity to suggest the name of any person who would in their view be an appropriate person for such an appointment.
Where the Commission have sought suggestions as mentioned in subsection (2) above, they shall consider any such suggestions before making an appointment under subsection (1) above.
The Commission may appoint a member of the Commission or a member of the Commission’s staff to act as observer to the panel for the purposes of—
sitting with the panel at any meeting;
taking part in their discussions; and
informing the Commission of information arising during and decisions taken at such meetings.
An observer appointed under subsection (4) above shall not be a member of the panel.
The Commission may refer to any such panel any matter relating to the functions of the Commission, and it shall be the duty of the panel to advise the Commission on the matter.
The Secretary of State— by order fix a period in each year during which no person shall take or wilfully kill or injure any deer of the sex and species named in the order, and different periods may be so fixed in relation to different species and in relation to the male and female of any species.
shall, in relation to the female of every species of deer; and
may, in relation to the male of any species of deer,
Before making an order under subsection (1) above, the Secretary of State may consult such persons or organisations as he thinks fit, or may direct the Commission to carry out such consultation on his behalf.
Where the Secretary of State has directed the Commission to carry out consultation on his behalf under subsection (2) above, they shall— to him within such period as he may so direct.
report the results of that consultation, and
tender such advice as they may wish in relation to the making of an order under subsection (1) above,
Where the Secretary of State or the Commission have carried out consultation under subsection (2) or (3) above the Secretary of State shall have regard to the results of that consultation, and to any advice tendered by the Commission under subsection (3) above, before making an order under subsection (1) above.
Subject to sections 14 and 25 of this Act and to subsections (6) and (7) below, any person who contravenes an order made under subsection (1) above shall be guilty of an offence.
Without prejudice to section 26, and subject to section 37, of this Act, and notwithstanding anything in any agreement between an occupier of land and the owner thereof, the Commission may authorise the owner or the occupier of any land or any person nominated in writing by either of them to take or kill, and to sell or otherwise dispose of, any deer found on that land during the period specified in relation to that sex and species of deer in an order under subsection (1) above, where they are satisfied that—
the taking or killing is necessary—
to prevent serious damage to any unenclosed woodland which forms part of that land, or serious damage, whether direct or indirect, to the natural heritage generally; or
in the interests of public safety; and
no other means of control which might reasonably be adopted in the circumstances would be adequate.
Subject to section 37 of this Act, the Commission may, for any scientific purpose, authorise any person to take or kill deer during the period specified in relation to that sex and species of deer in an order under subsection (1) above.
In this Act the area to which a control agreement or a control scheme relates is, in relation to that agreement or, as the case may be, scheme, referred to as the “control area”.
Subject to the following provisions of this section, where the Commission are satisfied that, on any land, deer— and that for the prevention of further such damage, injury or, as the case may be, danger or potential danger, the deer in that locality should be reduced in number, they shall form a preliminary view, having due regard to the nature and character of the land in question, as to what measures should be taken for that reduction in number; and, for the purposes of this section and section 8 of this Act, “measures” includes the taking and removal of deer.
have caused, are causing, or are likely to cause—
damage to woodland, to agricultural production, including any crops or foodstuffs, or, whether directly or indirectly, to the natural heritage generally; or
injury to livestock, whether by serious overgrazing of pastures, competing with any such livestock for supplementary feeding, or otherwise; or
have become a danger or a potential danger to public safety,
For the purposes of subsection (1) above “the natural heritage” includes 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.
Where it appears to the Commission that the circumstances obtaining in a particular area require the complete exclusion of all deer, or of all deer of any species, from that area, they may form the view that any deer within that area should be taken, removed or killed.
After they have formed—
the preliminary view mentioned in subsection (1) above; or
the view mentioned in subsection (3) above,
the Commission shall consult with such owners or occupiers of land as the Commission consider to be substantially interested, to secure agreement—
that measures require to be taken;
as to what measures require to be taken, and within what time limit;
as to who is to carry out such measures; and
as to any other matters which appear to the Commission to be necessary for the purposes of such an agreement.
Where agreement is reached on the matters mentioned in subsection (4) above the Commission shall draw up an agreement (a “control agreement”) specifying the parties to it, and any such control agreement may— and the Commission shall send a copy of the control agreement to all the persons who were involved in the consultation referred to in subsection (4) above.
describe the control area by reference to a map and specify the approximate extent of that area;
specify the measures which are to be taken in relation to the deer in that area or any part of it;
specify, where the deer are to be reduced in number, the number and, if necessary in the opinion of the Commission, the species, sex and class, of the deer to be killed in or taken and removed from the control area or any part of it, and the limit on the number of deer of each species, sex or class to be allowed to be established in the control area or any part of it;
specify the measures which are to be taken by the owners or occupiers for the time being of land in the control area or any of them for the purposes of the agreement; and
set out the time limits within which the owners or occupiers are to take any such measures,
The Commission and any of the parties to a control agreement may agree at any time to vary its terms.
Where the Commission are satisfied— they shall make a scheme (a “control scheme”) for the carrying out of such measures as they consider necessary for the purposes mentioned in subsection (1) or, as the case may be, subsection (3) of section 7 of this Act.
that— and
it is not possible to secure a control agreement; or
that a control agreement is not being carried out;
that—
deer have caused and are causing serious damage to woodland or to agricultural production, including crops and foodstuffs, or serious damage, whether directly or indirectly, to the natural heritage, or serious injury to livestock, however caused, or have become and remain a danger to public safety; and
action is necessary to prevent such serious damage, serious injury, or danger,
Subsection (1) above does not apply in relation to any control agreement proposed or entered into for the purpose of altering or enhancing the natural heritage.
A control scheme shall—
describe the control area by reference to a map and specify the approximate extent of that area;
specify the measures which are to be taken in relation to the deer in that area or any part of it;
specify, where the deer are to be reduced in number, the number and, if necessary in the opinion of the Commission, the species, sex and class, of the deer to be killed in or taken and removed from the control area or any part of it, and the limit on the number of deer of each species, sex or class to be allowed to be established in the control area or any part of it;
specify the measures which are to be taken by the owners or occupiers for the time being of land in the control area or any of them for the purposes of paragraphs (a) to (c) above;
prescribe time limits within which the owners or occupiers are to take any such measures as are mentioned in paragraph (d) above;
include any incidental, consequential or supplemental provisions that may be necessary.
A control scheme may specify different measures to be taken by different owners or occupiers of land in the control area, and may provide for the extension of any time limit prescribed therein.
Nothing in subsection (3) or (4) above shall empower the Commission to impose on any owner or occupier of land a requirement to construct a fence on his land or on any part of it against the movement of deer, and for the purposes of this section “fence” shall include any artificial obstruction.
A control scheme shall require confirmation by the Secretary of State before it comes into operation; and Schedule 2 to this Act (which makes provision in relation to the making, confirmation, variation and revocation of control schemes) shall have effect.
Where any control scheme has been confirmed, every owner or occupier shall take such measures as the scheme may require of him in accordance with its provisions.
Where the Commission are of the opinion that any owner or occupier of land has failed to comply with subsection (7) above, they shall carry out the requirement, if they are satisfied that it is still necessary to do so; and where the carrying out of such a requirement involves the killing or taking of deer, the Commission shall have power to dispose by sale or otherwise of any deer so killed or taken.
Where any expenses incurred by the Commission in the performance of their duty under section 8(8) of this Act exceed the amount of the proceeds of the sale of any deer killed or taken in pursuance of that performance, the excess shall be recoverable by them from the owner or occupier concerned.
The Commission shall furnish to any owner or occupier concerned a statement showing—
the expenses incurred in the performance of their duty under the said section 8(8);
the amount received in respect of the sale of deer; and
the amount recoverable from any owner or occupier under this section.
Any owner or occupier who is aggrieved by a statement under subsection (2) above may, within one month of the statement having been furnished to him, appeal to the Scottish Land Court.
On an appeal under subsection (3) above, the Scottish Land Court may, if it appears to them to be equitable to do so, vary the amount recoverable from the appellant.
Subject to the approval of the Secretary of State, the Commission may, in any particular case, waive their right to any expenses recoverable under this section.
This subsection applies where the Commission are satisfied—
that deer—
are causing serious damage to woodland or to agricultural production, including any crops or foodstuffs; or
are causing injury to livestock, whether by serious overgrazing of pastures, competing with any such livestock for supplementary feeding, or otherwise; or
constitute a danger or a potential danger to public safety;
that none of their other powers is adequate to deal with the situation; and
that the killing of the deer is necessary to prevent further such damage or injury or to remove the danger or potential danger.
Where subsection (1) applies and the Commission are satisfied that— the Commission shall make a request in writing to that person to that effect.
the deer mentioned in that subsection come from particular land; and
any person having the right to kill deer on that land will forthwith undertake the killing of the deer so mentioned,
Where a request under subsection (2) above has been made to a person, the Commission shall not issue an authorisation under subsection (4) below unless it appears to them that he has become unable or unwilling to comply with the terms of the request.
Subject to subsection (3) above, where subsection (1) above applies the Commission shall authorise in writing, subject to such conditions as may be specified in the authorisation, any person who in their opinion is competent to do so to follow and kill on such land as may be mentioned in the authorisation such deer as appear to that person to be causing the damage or injury or constituting the danger or potential danger.
Where, as mentioned in paragraph (a)(iii) of subsection (1) above, deer constitute a danger or potential danger to public safety, and, in the opinion of the Commission or the person authorised by them under subsection (4) above, the killing of the deer would itself constitute a potential danger to public safety, the person so authorised by the Commission shall instead take and remove the deer from the land in question by such means as are appropriate.
An authorisation under subsection (4) above shall remain in force from the date on which it is issued for such period, not exceeding twenty eight days, as may be specified in the authorisation.
Where the Commission— they shall as soon as practicable give to that person such warning of their intention as they consider necessary to prevent danger to him.
intend to issue an authorisation under subsection (4) above; and
are of the opinion that any person is likely to be on any land to be mentioned in that authorisation,
The Commission shall give to the owner of any land which is to be mentioned in an authorisation under subsection (4) above such notice of their intention to issue such an authorisation as may be practicable.
Without prejudice to section 16 of this Act, any notice to be served under subsection (7) or (8) above on an owner of land shall, where an agent or employee is responsible for the management or farming of the land, be duly served if it is served on the said agent or employee.
Where any deer has been killed or taken and removed from land under an authorisation granted by the Commission under subsection (4) above, the Commission shall have power to dispose of it by sale or otherwise.
Section 10 of this Act shall apply in relation to the natural heritage as it applies to woodland, where the Commission are satisfied that deer are causing serious damage to the natural heritage—
on enclosed land; or
on unenclosed land, but only if the Commission are also satisfied that the damage is being caused by reason of the presence on the land in question of a significantly higher density of deer population than is usual in all the circumstances.