Appendix
D
Letter from Department for Environment, Food and
Rural Affairs to the Committee Specialist: Proposal for the Regulatory
Reform (Deer) (England and Wales) Order 2007: Reply to Further
Questions Raised in Relation to the Deer Regulatory Reform Order.
Questions 16-18
Further to your e-mail of 23 February, below is further
information in relation to the questions you have raised.
1. A) Please explain the basis on which the Department
states that future licences to shoot deer at night under section
8 of the Deer Act 1991 as proposed to be amended will be issued
subject to a binding condition on the number of animals which
may be killed. Is this based on the legal effect of the proposed
Order or a statement of future policy of the licensing authorities?
B) Does the Department consider the Order should not itself
provide that licences should always be issued subject to a limit
on the number of animals which may be killed under the licence
and if so why?
The Department's response to questions 16-18, regarding
conditions applied to licences stated; "It will contain
conditions, such as restricting the species and number of animals
that can be killed." This reply was designed to indicate
that licences could include a limit on the maximum number of deer
that could be killed under that licence. The use of "such
as" in the answer was meant to illustrate that these
were examples of the types of licence conditions that may be imposed
on a case by case basis, albeit that the species of deer to be
killed must be stated in the licence under proposed new section
3(g)(c).
However, the Department considers that the maximum
number of deer to be killed will be subject to a licensing condition
in all but a minority of cases. Exceptions to this general presumption
may include the control of deer for public health and safety,
e.g. at airports, where it may be impossible to determine the
number of deer that may encroach on an airfield at any one time.
To allow flexibility for such situations the Department considers
it would be inappropriate that the Order should create an obligation
on the licensing authority to state the number of deer to be killed
on every licence. This would be consistent with equivalent licensing
powers under the Section 16 of the Wildlife and Countryside Act
1981 and regulations 44 and 45 of the Conservation (Natural habitats,
&c.) Regulations 1994 which authorise licences being issued
to control wildlife in similar circumstances.
It should be noted that the licensing authorities
will be not be permitted to issue licences that would allow the
killing of native deer[38],
if it would compromise the ability of that species to maintain
the population of deer in question on a long term basis within
its natural range after the killing has taken place (proposed
sections 3D(e) and 3F(f)). This condition will ensure that the
conservation status of native species of deer is not compromised
by any killing undertaken under the proposed new licensing regime.
2. Please explain the basis for the Department's
statements about future policies of the licensing authorities
should the proposed Order be approved, such as the assertion "The
licensing authorities will...in all cases conduct at least one
site visit to assess the case, before an application is approved".
The Department's statement that "the licensing
authorities will subject applicants to rigorous assessment, and
in all cases will conduct at least one site visit to assess the
case, before an application is approved" was based on
information provided by the licensing authority for England, Natural
England, and it is a position to which the Welsh Assembly Government
also subscribes.
As outlined in the reply, Natural England already
has the power to issue orders under the Agriculture Act 1947.
Working instructions for those orders already ensures that before
an order for night shooting is issued a visit to the site is undertaken.
Similar practice will be followed for night shooting licences.
The draft code of practice produced by Natural England for the
proposed night shooting licensing system (previously provided)
clearly states that "before night shooting takes place
the licensee and operators involved must make themselves thoroughly
familiar with the site. Safe and unsafe areas must be identified;
shooting must only take place where there is a suitable backstop".
The licensing authority would wish to satisfy themselves that
this is the case and this would require a site visit.
The Department considers that the other safeguards
imposed by the proposed licensing provisions - primarily that
the licensing authority must be satisfied that no suitable alternative
to night shooting - together with the proposed guidance mentioned
above means that it is very unlikely that the licensing authorities
would issue licences to shoot deer at night without a site visit.
The Department concedes that there is no requirement
in the draft Order to legally oblige the licensing authorities
to carry a site visit before issuing a night shooting licence.
While it would be possible to insert such a condition, such a
level of detail would be unusual in legislation of this type,
for example no such statutory provision exists for night shooting
orders under the Agriculture Act 1947. To insert such a condition
would also limit the ability of the Department and the licensing
authority to react to currently unforeseen and exceptional circumstances
where deer may be required to be killed at night for reasons of
urgency.
I hope this reply provides a satisfactory response
to the questions raised.
28 February 2007
38 For the purposes of this reply - native deer means
red, roe or fallow deer. Back
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