Shoot licensing

Potential for local restrictions on shooting in Scotland within existing law that might be used
temporarily in lieu of a full licensing system or might be the basis for the sanctions element of a
permanent full system

Introduction
As part of the wider project of formulating a licensing system for game shooting, this paper
examines whether it may be possible, within existing statute, to provide enforcement sanctions by
way of withdrawing the right to shoot from a defined area of land for a specified period.

This refers only to Scotland, although it appears that a broadly similar situation to that described
pertains in other UK jurisdictions.

The legal basis for shooting

Shooting – that is to say the hunting of wild birds for sport – is regulated in Scotland by the Wildlife
and Countryside Act 1981 (WCA). This is a British statute, the content of which is now the
responsibility of the Scottish Parliament. Consequently it differs in detail in Scotland from versions
that now apply elsewhere in Britain, as a result of several amendments implemented by Acts passed
by that Parliament. Local variations notwithstanding, it remains the means by which the Birds
Directive is, or, at least, is intended to be, transposed into domestic legislation in all British
administrations.

Other statutes have some bearing on the lawful practice of shooting, e.g. the Firearms Act 1968.
These are not considered here in any detail but they may contain wording that is relevant to
formulating an overall system of regulation.

Birds that may be killed for sport are listed in Schedule 1 Part II and Schedule 2 Part I to the WCA
(hereinafter, ‘quarry species’). Since the passage of the Wildlife and Natural Environment (Scotland)
Act 2011 (WANE), the quarry species list includes species that were formerly legally classified as
‘game birds’, the shooting of which was regulated by various archaic game acts, now repealed.
These are the various galliform grouse, partridge etc. species and this includes non-native species
released for shooting, i.e. pheasant and red-legged partridge. This simplifies matters in that all
species utilised for game shooting now fall within the single WCA definition of ‘wild birds’, whatever
may be argued about their biological/ecological status and whether or not they are still casually – as
opposed to legally – referred to as ‘game birds’. Thus the only legal difference between quarry
species and all other wild birds is that, in certain circumstances, they may be shot.

Listing as quarry species provides a basic legal right to kill the species concerned, by any lawful
means. Typically, and almost exclusively, this involves shooting (hence the use of the term
‘shooting’ in British sporting culture to mean the hunting of birds, a terminology that is not
otherwise used in other anglophone cultures, which tend to use the general term ‘hunting’ to
include and describe this activity).

This right is granted to any person but is restricted in practice to the owners or legal occupiers of
land since no other person is likely to be able to use a firearm lawfully on the land (Firearms Act
1968). It is further constrained on any given landholding by the existence of a specific right to shoot
(the ‘sporting rights’) which, in Scotland, may not be permanently separated from land ownership,
although shooting rights may be temporarily leased to another party. This could be a tenant on the
land or an external party solely interested in shooting, commercially or privately. Details will vary
from landholding to landholding as specified in any relevant lease, a private arrangement between
the landowner and other party/parties. Nevertheless, all shooting activity is constrained by the
terms of the WCA, whether it is done by the landowner, guests/clients of the landowner, tenants on
the land, if permitted, or shooting tenants (and any guests/clients of tenants as permitted in the
terms of a lease).

A notable exception to the situation above applies on the ‘foreshore’, the intertidal zone around the
coast. The provisions of the WCA still apply, but the right to shoot is not held by any individual but
by the general public. Any person may shoot in this area provided they can get themselves and their
gun lawfully onto the foreshore.

The main restriction imposed by the WCA on the shooting of quarry species are the various ‘close
seasons’, specified within the act, which vary from species to species. No person may shoot any
quarry species during the close season.

Sports shooting as distinct controlling to prevent damage – colloquially ‘pest control’

None of the above should be confused with the shooting or other killing of birds for what is casually
termed pest control (although the term has no legal basis). This is regulated by a system of general
licences; involves a different suite of species; authorises different classes of person; mostly permits
killing at any time of year. Any restrictions that might be postulated for restricting sports shooting
would not apply to the control of pest birds (although some degree of sanction by way of removing
rights under the general licences already exists and might be deployed in parallel).

Possible sanctions
Since the inception of the WCA, it has included a sub-section, 2(5), which permits a change to be
made to the close seasons. It is worded as follows:-

2(5) The Secretary of State may by order made with respect to the whole or any specified
part of Great Britain vary the close season for any wild bird specified in the order.

As far as can be ascertained, this power has never been used. It is surmised that it is included to
allow the authorities to adjust close seasons to changing biological circumstances. These would
likely be permanent, or at least long-term changes. However, the sub-section is very broadly
worded and contains no hint as to its intended purpose. Most significantly, it contains no
requirement to consult with stakeholders (and nor does any other part of the act require such
consultation in respect of this sub-section). Significantly, it allows any change to be restricted
geographically.

Potentially, therefore, this allows a statutory instrument to be drafted extending the close season
for all or a selected range of quarry species, to 365 days of the year, over any defined area of land.
The order so drafted could also include a clause limiting its own period of application. Thus the right
to shoot could be withdrawn, for any period, over an estate or other appropriate land holding in
response to a raptor persecution situation (or some other appropriate circumstance) that had
persisted chronically without resolution.

The next sub-section of the WCA contains the following (as amended in Scotland):-
 2(6) If it appears to the Secretary of State expedient that any wild birds included in Part II
of Schedule 1 or Part I of Schedule 2 should be protected during any period outside
the close season for those birds, he may by order made with respect to the whole or
any specified part of Great Britain declare any period (which shall not in the case of
any order exceed fourteen days) as a period of special protection for those birds; and
section 1, this section and section 6 shall have effect as if any period of special
protection declared under this subsection for any birds formed part of the close
season for those birds.

On the face of it this is a slightly more constrained version of the power granted by 2(5). As the
wording makes clear, this is intended to provide only for short-term circumstances. This is the
statutory basis for the ‘cold-weather bans’ imposed from time to time on winter shooting. As such it
is not well suited to the purpose of providing sanction in a shoot licensing system and is given no
further consideration here.

An advantage of using sub-section 2(5) is that it is depersonalised and applies to an area of land
rather than any individual or individuals. There is nothing in the statute that requires the sub-
section to be applied in any particular circumstance. It is a very general and far-ranging power.

There is no reason why any such sanction could not also be applied to any area of foreshore,
although we are less likely to be advocating this in the context of any licensing proposal.

Arguments against use

It will doubtless be argued that WCA 2(5) was not intended for such a use. As surmised above, we
think this is probably true. However, there is no information in the WCA as to the purpose of 2(5)
and it has, to our best knowledge, never been used and so we have no example from the
circumstances of its deployment. Furthermore, a preliminary examination of the Hansard record of
the passage of the WCA at Westminster has not discovered any discussion that informs us as to
purpose. It does appear that WCA 2(5) is the reiteration (with some modification) of an existing
power in the Protection of Birds Act 1954 (the first comprehensive British bird protection legislation)
but that adds no further information on intended purpose. So in the absence of any declared
purpose, but also the absence of any explicit restriction on its use, we see no reason why WCA 2(5)
may not be simply taken at face value and used as suggested above.

Conclusion
The existing law in Scotland already contains, in WCA 2(5), the means to provide sanction in areas of,
e.g., chronic, unresolved raptor persecution. This does not in itself provide a comprehensive
licensing system but it might in due course provide the ‘teeth’ to such a system, or, at least, the
model for sanctions within a system. The use of an SI requires a degree of parliamentary process but
is not necessarily too slow or cumbersome to be practicable.

There would need to be some consulted, recognised and publicised process by which such a
restriction was triggered, presumably as the sanction of last resort.

KMM
revised 23.iii.2017