SNP must ditch unbelievable plan to send people to prison for refusing to kill deer

For over a year, land managers on the frontline of managing deer impacts across Scotland have been waiting with bated breath. In January 2024, Scottish Government ministers – then operating under the Bute House Agreement between the SNP and Scottish Greens – launched a public consultation entitled “Managing Deer for Climate and Nature”.

Contained within the consultation were some of the most radical proposals for ‘modernising’ deer management in Scotland, the likes of which have never been seen. Chief among the proposals is a new power for Scottish ministers to intervene when it comes to culling deer.

Proposed 'Deer Management Nature Restoration Orders' could see the government force landowners to kill deer (Picture: Jeff J Mitchell) | Getty Images

Barrage of questions

A Deer Management Nature Restoration Order (DMNRO) could see the state enforcing deer culls where there are undefined ‘benefits’ to be gained from nature restoration or recovery. Fail to comply with an order and you could be subjected to a hefty fine or even a custodial sentence.

For private land managers already delivering about 80 per cent of Scotland’s deer cull, the proposal was met with anguish and a barrage of questions.

How would the new powers work? Where and when would they be imposed, especially if they are to be predicated on something which might happen? What if deer are not the only herbivores causing a ‘barrier’ to nature recovery?

What would happen to my right to appeal given the entirely subjective evidential threshold? How long would the orders be imposed for? Who would be held liable for any costs incurred? What happens if nature doesn’t recover?

Pertinent questions – the majority of which go conspicuously unanswered in the consultation paper. Over a year on, land managers remain largely in the dark about the direction of travel, although we are told that the responsible minister, Jim Fairlie MSP, is firmly in ‘listening mode’.

Near-universal objections

The fall of the Bute House Agreement was cause for hope. Perhaps Mr Fairlie would throw out – or at least refine – what looks and feels like an ill-conceived idea originated by the Scottish Greens. So far this hasn’t happened, despite the near-universal objections of private deer managers.

That’s not to say there have been no signs of optimism regarding a shift in government thinking. Just this week, Mr Fairlie announced that previous proposals to extend the open season on female deer, the period during which annual culls take place, will not go ahead.

That decision was widely welcomed by rural organisations, particularly gamekeepers and stalkers, who had feared they would be forced to cull heavily pregnant hinds and unborn calves who were due to be born imminently – a highly troubling scenario.

Given the genuinely held concerns of those charged with managing deer populations about the overall direction of travel, what has been desperately needed – and what has thankfully begun this week thanks to the Scottish Parliament’s Rural Affairs and Islands Committee – is pre-legislative scrutiny of the Bill.

The ‘background’ to this topic is vast and complex, stemming back to the Deer (Scotland) Acts of 1959 and 1996 and, more recently, a 374-page review of deer management published in 2020 with 99 recommendations.

Stick-before-carrot approach

The rural affairs committee will certainly have its work cut out in understanding the context that sits behind the raft of proposals which went out for consultation last year – not all of which are bad, with some decidedly sensible.

But the DMNRO concept is a white elephant and a product of a desire to penalise the owners of large upland estates as well as their employees. It is symptomatic of a stick-before-carrot approach which will stymy meaningful progress in tackling the negative impacts of deer as and when they occur.

If ministers want to get serious about managing deer for climate and nature, their best option would be to ditch the ill-conceived DMNRO idea. It would be profoundly reckless to create a penalising power with such a deficit of basic legal safeguards. Critics doubt whether the power, as currently described, would even be useable, such are the associated legal uncertainties.

But there is another way. Ministers have a golden opportunity to charter an incentive–orientated approach which looks at whole-system impacts – not just deer in isolation. They also need to focus on enabling lowland deer management which looks set to be overlooked yet again, despite repeated calls for greater investment in community facilities such as larders and chillers.

Simultaneously, existing interventionist powers should be refined so that they can actually work. It is astonishing to see ministers jumping head first into creating a brand new power to intervene when an existing power to impose ‘control schemes’ for deer management has never been used – a product, we think, of inadequate legislative drafting. This myopic approach to law-making is destined to result in more of the same substandard regulation and inaction.

Fundamentally inequitable

As the rural affairs committee takes forward its scrutiny of this important subject, we would ask that its members consider how fundamentally inequitable it would be to have a regulatory order enforced on you without first knowing the circumstances under which the order could be imposed – potentially at great personal cost, with little prospect of successful appeal and with the threat of a £40,000 fine or three months’ imprisonment if you do not comply with an instruction to cull deer on your land.

It is almost unbelievable that these punishments could even be considered in the context of such uncertainty and one-sidedness. Unfortunately, this is the DMNRO proposition staring deer managers across Scotland in the face: an intolerable proposal that ought to be dropped at the earliest opportunity. We sincerely hope the MSPs of the Rural Affairs and Islands Committee agree.

Ross Ewing is director of moorland at Scottish Land and Estates, a membership organisation for landowners, rural businesses and rural professionals. Lea MacNally is a member of the Scottish Gamekeepers Association’s Deer Group