Wildlife and Natural Environment (Scotland) Act 2011

Part 1 — Defined expressions

Defined expressions in this Act

1

In this Act—

• “the 1946 Act” means the Hill Farming Act 1946 (c.73),

• “the 1981 Act” means the Wildlife and Countryside Act 1981 (c.69),

• “the 1992 Act” means the Protection of Badgers Act 1992 (c.51),

• “the 1996 Act” means the Deer (Scotland) Act 1996 (c.58),

• “the 2004 Act” means the Nature Conservation (Scotland) Act 2004 (asp 6).

Part 2 — Wildlife under the 1981 Act

Wild birds, their nests and eggs

Application of the 1981 Act to game birds

2

In section 27(1) of the 1981 Act (interpretation of Part I)—

• (a) the definition of “game bird” is repealed,

• (b) in the definition of “wild bird”, the words “or, except in sections 5 and 16, any game bird” are repealed.

Wild hares, rabbits etc.: power to vary Schedules to the 1981 Act and prescribe close seasons

3

• (1) The 1981 Act is amended as follows.

• (2) In the italic heading before section 1 (protection of wild birds, their nests and eggs), at the end add “ and prevention of poaching ”.

• (3) In that section, for subsection (6) (“wild birds” in section 1 does not include birds shown to have been bred in captivity), substitute—

(6) For the purposes of this section, the definition of “wild bird” in section 27(1) is to be read as not including any bird which is shown to have been bred in captivity unless— (a) it has been lawfully released or allowed to escape from captivity as part of a re-population or re-introduction programme; or (b) it is a mallard, grey or red-legged partridge, common pheasant or red grouse which is no longer in captivity and is not in a place where it was reared.

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• (4) In section 2 (exceptions to section 1)—

• (a) in the title, at the end add “ : acts by certain persons outside close season ”,

• (b) in subsection (1), after “this section,” insert “ where subsection (1A) applies ”,

• (c) after that subsection insert—

(1A) This subsection applies where— (a) the person who kills or injures had— (i) a legal right to kill such a bird; or (ii) permission, from a person who had a right to give permission, to kill such a bird; or (b) the person who takes had— (i) a legal right to take such a bird; or (ii) permission, from a person who had a right to give permission, to take such a bird.

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• (d) in subsection (3), after “Christmas Day” insert “ in relation to those birds included in Part I of Schedule 2 which are also included in Part IA of that Schedule ”,

• (e) after subsection (3), insert—

(3A) Subject to the provisions of this section, where subsection (3B) applies a person does not commit an offence under section 1 by reason of the taking for the purposes of breeding of— (a) a partridge or pheasant included in Part I of Schedule 2; or (b) an egg of such a bird. (3B) This subsection applies where— (a) the person who takes does so during the period of 28 days commencing with the first day of the close season for the bird; and (b) the person who takes had— (i) a legal right to take such a bird; or (ii) permission, from a person who had a right to give permission, to take such a bird. (3C) A person does not commit an offence under section 1 by reason of the taking of a red grouse if— (a) the grouse is taken— (i) for the purpose of preventing the spread of disease; and (ii) with the intention of releasing it from captivity after no more than 12 hours; and (b) the person had— (i) a legal right to take such a grouse; or (ii) permission, from a person who had a right to give permission, to take such a grouse.

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• (f) in subsection (4)—

• (i) after paragraph (b) insert—

(ba) in the case of pheasant, the period in any year commencing with 2nd February and ending with 30th September; (bb) in the case of partridge, the period in any year commencing with 2nd February and ending with 31st August;

,

• (ii) after paragraph (c) insert—

(ca) in the case of black grouse, the period commencing with 11th December in any year and ending with 19th August in the following year; (cb) in the case of ptarmigan and red grouse, the period commencing with 11th December in any year and ending with 11th August in the following year;

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• (g) in subsection (7)—

• (i) for “a person” substitute “ such persons ”,

• (ii) at the end add “ as he considers appropriate ”.

• (5) In section 5(5) (use of cage traps or nets for breeding purposes), for “game bird” substitute “ grouse, mallard, partridge or pheasant included in Part I of Schedule 2 ”.

• (6) In section 26 (regulations, orders, notices etc.)—

• (a) in subsection (2)—

• (i) after “than” insert

— (a) an order under any of

,

• (ii) for “and” substitute “ or ”,

• (iii) after “11(4)” insert

; and (b) an order under section 22(1)(a) which removes from Part I of Schedule 2 black grouse, common pheasant, grey partridge, ptarmigan, red grouse or red-legged partridge,

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• (b) in subsection (3)—

• (i) after “No” insert

— (a)

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• (ii) after “11(4)” insert

; or (b) order under section 22(1)(a) which removes from Part I of Schedule 2 any bird referred to in paragraph (b) of subsection (2),

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• (7) In Schedule 2, Part I (birds which may be killed or taken outside the close season)—

• (a) before the entries relating to the bird with the common name “Mallard” insert in columns 1 and 2 the following entries—

Grouse, Black	Tetrao tetrix
Grouse, Red	Lagopus lagopus scoticus

,

• (b) after the entries relating to the bird with the common name “Moorhen” insert in columns 1 and 2 the following entries—

Partridge, Grey	Perdix perdix
Partridge, Red-legged	Alectoris rufa
Pheasant, Common	Phasianus colchicus

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• (c) after the entries relating to the bird with the common name “Pochard” insert in columns 1 and 2 the following entries—

Ptarmigan	Lagopus mutus

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• (8) In Schedule 2, after Part I insert—

Common name	Scientific name
Coot	Fulica atra
Duck, Tufted	Aythya fuligula
Gadwall	Anas strepera
Goldeneye	Bucephala clangula
Goose, Canada	Branta canadensis
Goose, Greylag	Anser anser
Goose, Pink-footed	Anser brachyrhynchus
Mallard	Anas platyrhynchos
Moorhen	Gallinula chloropus
Pintail	Anas acuta
Plover, Golden	Pluvialis apricaria
Pochard	Aythya ferina
Shoveler	Anas clypeata
Snipe, Common	Gallinago gallinago
Teal	Anas crecca
Wigeon	Anas penelope
Woodcock	Scolopax rusticola

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Areas of special protection for wild birds

4

• (1) The 1981 Act is amended as follows.

• (2) Section 3 (areas of special protection) is repealed.

• (3) In section 4 (exceptions to sections 1 and 3)—

• (a) for the title, substitute “ Further exceptions to s. 1 ”,

• (b) in subsection (1) the words “or in any order made under section 3” are repealed,

• (c) in subsections (2) and (3) the words “or any order made under section 3” are repealed.

• (4) In section 16 (power to grant licences)—

• (a) in subsection (1) the words “and orders under section 3” are repealed,

• (b) in subsection (2) for “and orders under section 3 do” substitute “ does ”.

• (5) In section 26 (regulations, orders, notices etc.)—

• (a) in subsection (2) “3,” is repealed,

• (b) in subsection (4)(a) the words from “, except” to “3,” are repealed.

Sale of live or dead wild birds, their eggs etc.

5

• (1) The 1981 Act is amended as follows.

• (2) In section 2—

• (a) in subsection (4) (close seasons), for “this section and section 1” substitute “ section 1, this section and section 6 ”,

• (b) in subsection (6) (period of special protection forms part of close season), for “this section and section 1” substitute “ section 1, this section and section 6 ”.

• (3) In section 6 (sale etc. of live or dead wild birds, eggs etc.)—

• (a) in subsection (1)(a)—

• (i) the words from “other” to “3” are repealed,

• (ii) after “egg” where it second occurs insert

other than— (i) a bird included in Part I of Schedule 3 (see also subsection (5)); (ii) a bird included in Part 1A of that Schedule to which subsection (1A) applies; or (iii) an egg to which subsection (1B) applies or any part of such an egg

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• (b) after subsection (1) insert—

(1A) This subsection applies to a bird which— (a) was bred in captivity and remained in captivity or a place where it was reared; (b) was a wild bird for the purposes of section 1 (see section 1(6)) and was taken by a person who had a legal right to take such a bird or a person with permission, from a person who had a right to give permission, to take such a bird outside the close season for the bird; or (c) was such a wild bird of the following type and was taken by a person with such right or permission during the period of 28 days which commences with the first day of its close season–– (i) a partridge included also in Part I of Schedule 2; or (ii) a pheasant included also in that Part. (1B) This subsection applies to the following eggs— (a) an egg of a bird included in Part IA of Schedule 3 to which subsection (1A) applies; or (b) an egg of a bird included in Part IA of Schedule 3 to which that subsection does not apply if the egg was taken— (i) outside the close season for the bird or during the period of 28 days commencing with the first day of its close season; and (ii) by a person who had a legal right to take such a bird or a person with permission, from a person who had a right to give permission, to take such a bird.

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• (c) in subsection (2)(a)—

• (i) after “Part II” insert “ , IIA ”,

• (ii) after “Schedule 3” insert “ (see also subsections (5B) and (6)) ”,

• (d) for subsection (5) substitute—

(5) Any reference in this section to any bird included in Part I of Schedule 3 is a reference to any bird included in that Part which— (a) was bred in captivity; (b) has been ringed or marked in accordance with regulations made by the Scottish Ministers; and (c) has not been lawfully released or allowed to escape from captivity as part of a re-population or re-introduction programme. (5A) Regulations made for the purposes of subsection (5)(b) may make different provision for different birds or different provisions of this section.

,

• (e) after subsection (5A) (as inserted by paragraph (d)) insert—

(5B) Any reference in this section to any bird included in Part IIA of Schedule 3 is a reference to any bird included in that Part which was killed outside the close season for the bird by a person who had a legal right to kill such a bird or permission, from a person who had a right to give permission, to kill such a bird.

,

• (f) for subsection (6), substitute—

(6) Any reference in this section to any bird included in Part III of Schedule 3 is a reference, during the period commencing with 1st September in any year and ending with 28th February of the following year, to any bird included in that Part.

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• (4) In Schedule 3 (birds which may be sold)—

• (a) after Part I insert—

Common name	Scientific name
Grouse, Red	Lagopus lagopus scoticus
Mallard	Anas platyrhynchos
Partridge, Grey	Perdix perdix
Partridge, Red-legged	Alectoris rufa
Pheasant, Common	Phasianus colchicus

,

• (b) after Part II insert—

Common name	Scientific name
Coot	Fulica atra
Duck, Tufted	Aythya fuligula
Grouse, Black	Tetrao tetrix
Grouse, Red	Lagopus lagopus scoticus
Mallard	Anas platyrhynchos
Partridge, Grey	Perdix perdix
Partridge, Red-legged	Alectoris rufa
Pheasant, Common	Phasianus colchicus
Pintail	Anas acuta
Plover, Golden	Pluvialis apricaria
Pochard	Aythya ferina
Ptarmigan	Lagopus mutus
Shoveler	Anas clypeata
Snipe, Common	Gallinago gallinago
Teal	Anas crecca
Wigeon	Anas penelope
Woodcock	Scolopax rusticola

,

• (c) in Part III (birds which may be sold dead from 1st September to 28th February), the entries relating to birds with the following common names are repealed—

Coot
Duck, Tufted
Mallard
Pintail
Plover, Golden
Pochard
Shoveler
Snipe, Common
Teal
Wigeon
Woodcock.

Wild hares, rabbits etc.

Protection of wild hares etc.

6

• (1) The 1981 Act is amended as follows.

• (2) After section 10, insert—

(10A) (1) Subject to the provisions of this Part, any person who intentionally or recklessly kills, injures or takes any wild animal included in Schedule 5A in the close season for the animal is guilty of an offence. (2) In this section, “close season” means— (a) in the case of a mountain hare, the period in any year beginning with 1st March and ending with 31st July; (b) in the case of a brown hare, the period in any year beginning with 1st February and ending with 30th September. (3) The Scottish Ministers may by order vary the close season for any wild animal included in Schedule 5A which is specified in the order. (4) If it appears to the Scottish Ministers expedient that any wild animals included in Schedule 5A should be protected during any period outside the close season for those animals, they may by order declare any period not exceeding 14 days as a period of special protection for those animals. (5) Before making an order under subsection (4), the Scottish Ministers must consult such persons appearing to them to be representative of persons interested in the killing or taking of animals of the kind proposed to be protected by the order as they consider appropriate. (6) Where an order is made under subsection (4), this section has effect as if any period of special protection declared by the order forms part of the close season for those animals. (7) An order under subsection (3) or (4) may be made as respects the whole of Scotland or any part of Scotland specified in the order. (8) In any proceedings for an offence under subsection (1), the animal in question is to be presumed to have been a wild animal unless the contrary is shown. (10B) (1) A person is not guilty of an offence under section 10A(1) by reason of the killing of an animal included in Schedule 5A if he shows that the animal had been so seriously disabled otherwise than by his unlawful act that there was no reasonable chance of its recovering. (2) A person is not guilty of an offence under section 10A(1) by reason of taking any such animal if he shows that— (a) he had a legal right to take such an animal or permission, from a person who had a right to give permission, to take such an animal; and (b) the animal— (i) had been disabled otherwise than by his unlawful act; and (ii) was taken solely for the purpose of tending it and releasing it when no longer disabled. (3) An authorised person is not guilty of an offence under section 10A(1) by reason of the killing or injuring of an animal included in Schedule 5A if he shows that his action was necessary for the purpose of preventing serious damage to livestock, foodstuffs for livestock, crops, vegetables, fruit, growing timber or any other form of property or to fisheries. (4) An authorised person is not entitled to rely on the defence provided by subsection (3) as respects any action if–– (a) it had become apparent, before the action was taken, that it would prove necessary for the purpose mentioned in that subsection; and (b) either— (i) a licence under section 16 authorising the action had not been applied for as soon as reasonably practicable after that fact had become apparent; or (ii) an application for such a licence had been determined. (5) An authorised person is not entitled to rely on the defence provided by subsection (3) as respects any action unless he notified the appropriate authority as soon as reasonably practicable after the action was taken that he had taken it. (6) In subsection (5), “the appropriate authority” has the same meaning as in section 16(9). (7) Nothing in section 10A makes unlawful— (a) anything done in pursuance of a requirement by the Scottish Ministers under section 39 of the Agriculture (Scotland) Act 1948; or (b) anything done under, or in pursuance of an order made under, the Animal Health Act 1981.

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