Our previous updates have tracked the progress of the Wildlife Management and Muirburn (Scotland) Act 2024 ("the Act") which became an Act of the Scottish Parliament on 30 April 2024. Since our last update, the Act has come into force, with the scheme for the licensing of land over which red grouse can be taken or killed going live on 12 August 2024. The Code of Practice for Grouse Moor Management ("the Grouse Code") has also been published by the Scottish Ministers. This provides guidance about managing the land to which these licences relate.
In this update, we look at what we can expect to see going forward where NatureScot find evidence of non-compliance with a license, now that the 2024 grouse shooting season is underway.
Background
As we explained in our previous updates, the Act introduced the requirement that for an individual to kill or take red grouse, they must hold a licence that covers the area of land used for this purpose. The licence holder must be the owner or occupier of the land who owns or has the right to kill or take grouse.
These licences are known as "Section 16AA licences".
All those who operate under a Section 16AA license must comply with the Grouse Code which sets out:
- how land should be managed to reduce disturbance of and harm to any wild animal, wild bird and wild plant (including the use of medicated grit for such purposes)
- how the taking or killing of any wild birds should be carried out
- how predators should be controlled.
Compliance Monitoring
NatureScot is the body responsible for granting and monitoring compliance with Section 16AA licenses. They intend to monitor compliance by carrying out desk top checks where the licence holder will be required to provide details on how they have complied with the Grouse Code as a condition of the licence. They will also carry out site visits to the licensed landholding to determine compliance with certain aspects of the Grouse Code. These on-site checks can result from specific, credible complaints, a police investigation or as part of a randomised spot-checking process.
Where NatureScot has evidence of non-compliance with the conditions of a license, they can modify, suspend or revoke the licence and have published a Framework setting out their approach in this area.
Where the level of non-compliance is minor, NatureScot will follow a stepped approach, firstly notifying the licence holder on the non-compliance and providing advice. Where that doesn’t resolve the issue, they will instruct the licence holder to take corrective action. Where that doesn’t resolve the issue, they will modify the licence which can mean adding conditions or increasing compliance monitoring checks.
For more serious non-compliance, NatureScot may suspend or revoke a licence. This may occur where:
- a licence holder has failed to comply with any conditions attached to the licence or has ceased to be in a position to ensure compliance with any conditions; and/or
- NatureScot is satisfied that the licence holder or a person involved in managing the land to which the licence relates, has committed a relevant offence or has knowingly caused or permitted another person to do so.
A "relevant offence" includes, but is not limited to, breaches of Part 1 of the Wildlife and Countryside Act 1981, the Protection of Badgers Act 1992, the Hunting with Dogs (Scotland) Act 2023 and section 19 of Animal Health and Welfare (Scotland) Act 2006.
In assessing its response to non-compliance and/or offending NatureScot will consider:
- the nature of the non-compliance/offence
- the severity and impact of the non-compliance/offending
- the date of the non-compliance/offending and the record of compliance/offending
- history of non-compliance/offending by (or caused or permitted by) the licence-holder
- whether 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
There is no prescribed period of suspension, but it will generally not exceed 12 months. Revocation can be for a period of up to 5 years.
Appeals
Given that it is now an offence to shoot or take red grouse in an area of land not covered by a license (punishable by an unlimited fine and/or a custodial sentence of 5 years upon conviction), compliance with the conditions of a license is crucial.
The licence holder has the right to appeal the decision to not grant a licence, conditions of the licence or the modification, suspension or revocation of a licence to the Sheriff Court. An appeal must be lodged within 21 days of notice of the NatureScot decision. There will be no exception to this time limit.
Given the commercial and financial impact that an adverse decision by NatureScot may have, obtaining timely advice on the prospects of successfully appealing a decision by NatureScot will be crucial.
Our team are well placed to provide advice and representation to Section 16AA license holders in relation to an adverse decision by NatureScot and to provide advice more generally on the compliance issues surrounding this new licensing regime.
Contributors
Partner & Solicitor Advocate
Senior Associate
