In November 2013 Paul Wheelhouse, the Scottish Environment Minister, required SNH to deliver a process whereby the ability to control crows and gulls under the General Licences (GLs) would be withdrawn for an area or persons if, on the balance of probability, SNH consider crimes against birds of prey are occurring on an area.
Our consultation response was to express grave concerns that this legislative response was unlikely to reduce wildlife crime and could have negative impacts on the conservation of species that benefit from corvid control. Other bodies raised concerns over human rights and other liabilities.
Competent approach
SNH recognises that GLs work because of low conservation impact and low regulatory need based on trust. SNH is obliged to draft a decision-making process for withdrawal (evidence, assessment and appeals) that will deal with the industry’s key concerns over land v. individual, transparency, fairness and impact on conservation.
Legal advice is that this is therefore a competent approach. Scottish Government lawyers think that there is no human rights implication. The civil burden of proof is on the balance of probability; licensed premises can operate similarly; VOSA can operate like this; cross compliance with RPID operates in this way. SNH feel an appeal process (see below) will go some way to addressing ECHR Article 1 and 6 issues; further backstop is judicial review.
Process
SNH will have to take a quasi-judicial role and decide how to use Police Scotland evidence and whether, on balance, a withdrawal is justified. GWCT recommended advice is taken from Sheriffs or Procurators Fiscal on how to strike a balance to use historical test cases. It is not clear at this stage how SNH will deal with notification, publication of decision, appeals or enforcement.
Those affected by the withdrawal would be able to apply to SNH for a personal licence that would allow some limited pest control activity.
GWCT action
This ministerial requirement is unwelcomed by many. The GWCT will seek to mitigate the proposal as it comes forward to make it as non-damaging to ongoing predator control as possible.
Dr. Adam Smith
Director Scotland
March 2014