House of Commons - Regulatory Reform

Select Committee on Regulatory Reform Eighth Report

2 The report on the proposal and the Department's response

4. In our first stage report we recommended that the proposal be amended in a number of respects. We recommended:

That the text of the proposed new section 8(3F)(d) inserted by the proposed article 4 of the Order be amended to refer to the taking and killing of deer at night, rather than during the close season.
That the text of the Explanatory Note appended to the proposed Order be expanded to give a more adequate description of the Order.
That the proposed article 3(3) of the Order be amended so that existing section 3(3) be retained and to permit any means of humanely despatching deer which are "in such condition" that to kill them would be an act of mercy, rather than permitting any means of humanely killing deer which are "so seriously diseased" that to kill them would be an act of mercy.
That the proposed article 3(4) of the Order, which would permit the killing of various species of deer with .22 centre-fire rifles which have a muzzle energy of at least 1,356 joules and certain specified types of ammunition, be amended to remove provision permitting the killing of roe deer.
That the proposed article 6 be amended (i) to require that before making a subordinate provisions order in relation to any of the provisions mentioned in article 6(1), the Secretary of State and the National Assembly for Wales must consult those organisations who appear to them to represent persons likely to be interested in or who would be affected by the order and (ii) by omitting article 6(2) so that subordinate provisions orders shall be subject to the affirmative resolution procedure.
That proposed article 5 be amended so that close seasons for female deer commence on 1 April rather than on 15 March, as provided in the proposed Order.

5. In addition to those elements of the proposal which we recommended should be amended before a draft Order was laid, our report made clear that we considered it would be appropriate for adequate steps to be taken to inform members of the public who might be in the vicinity when shooting of deer at night was carried out under proposed new licensing powers which would be created by amendments to the 1991 Act made under article 4(3).

Drafting of article 4 of the Order

6. In the proposed Order article 4 included new provision for insertion into section 8 of the 1991 Act amending existing machinery for the granting of licences to take and kill deer at night. The proposed new section 8(3F)(d) had provided that, before granting a licence, the relevant authority must be satisfied that "to achieve the purpose in question there is no satisfactory alternative to taking and killing the deer of the species and description to which the application relates during the close season prescribed by Schedule 1 to this Act" (our italics). It appeared to us that this was likely to be an error and when asked the Department confirmed that it was and that it should have referred to the taking and killing of deer at night rather than during the close season. We recommended that the Department amend the proposed Order accordingly and the Order would now therefore insert the following new section 8(3F)(d) into the 1991 Act:

"(d) to achieve the purpose in question there is no satisfactory alternative to taking and killing the deer of the species and description to which the application relates between the expiry of the first hour after sunset and the beginning of the last hour before sunrise;"

7. We are content with the new wording.

Drafting of the Explanatory Note

8. The original Explanatory Note provided for the proposed Order was short and uninformative and we recommended that it be expanded to give a fuller account of the Order it purports to describe. The revised Explanatory Note for the draft Order does address the content of the Order more explicitly and we regard it as more useful to the reader than the original version.[5]

9. We are content with the Department's response to our recommendation.

Circumstances in which injured deer may lawfully be killed using any humane method

10. The existing Schedule 2 to the 1991 Act allows the use of specified weapons to kill deer. Section 6(4) of that Act contains further provision allowing the use of any smooth bore gun for that purpose in circumstances where to kill a deer would be an act of mercy and section 6(3) permits the use of traps or nets to take or kill deer for preventing the suffering of injured or diseased deer. The Department had proposed that article 3(3) of the proposed Order should replace the existing sections 6(3) and (4) with a provision permitting a person to use any reasonable means to kill a deer if he reasonably believes that the deer has been so seriously injured, otherwise than by his unlawful act, or is so seriously diseased, that to kill it is an act of mercy.

11. We had two concerns. Firstly, it appeared to be supposed that there would not be any circumstances when it would be thought best to capture an injured deer but not to kill it. Secondly, the new provision applied the exceptional power to kill deer in circumstances where "it is so seriously diseased" that this would be an act of mercy; the equivalent existing provision specified killing deer "in such condition". It appeared that the replacement provision might be construed as applying to a narrower range of circumstances.

12. The Department agreed that article 3(3) should be redrafted to retain the existing exceptional powers to capture deer or to kill them where they are in such condition that it would be merciful to do so.

13. We are content with the reworded form of the draft Order.

Use of .22 centre-fire rifles

14. Article 3(4) of the proposed Order contained provision which would have allowed the shooting of some smaller species of deer with guns and ammunition of a lower force than those presently permitted in the Deer Act 1991. It was proposed that, in view of the fact that populations of the smaller deer species had since become established in England and Wales, and were growing, the use of the lower power weapons and ammunition of the kinds specified should be permitted for killing Chinese water deer, muntjac deer and roe deer.

15. In considering this element of the proposal we took particular note of the views expressed by experts in wildlife management and animal welfare. In particular we noted that the RSPCA and Natural England took the view that there was not clear evidence to show that the use of these weapons would not prejudice animal welfare in respect of roe deer, which are the largest of these smaller species of deer. We therefore recommended that this element of the Order should not permit the killing of roe deer with such weapons.

16. The Department indicates in its statement that it has reviewed the evidence available on this point and accepted the recommendation we made. We welcome the exclusion of roe deer from the relevant provision in article 3 of the draft Order in line with our recommendation.

Proposed subordinate provision making powers

17. The Department had proposed that Article 6 of the proposed Order should designate article 4(3) (licensing) and the tables of close seasons set out in article 5(1) as subordinate provisions and that any future subordinate provisions orders should be subject to negative resolution procedure in both Houses. The power to make such a subordinate provisions order in respect of Wales was proposed to be exercisable by the National Assembly for Wales.[6] We had a number of concerns - in short, the proposed power was wider than analogous powers to amend the equivalent provisions in the 1991 Act, and yet it was still proposed to be exercisable subject to the negative resolution procedure. Neither did the proposed Order preserve existing requirements in respect of consulting interested parties before exercising the subordinate legislative power. We recommended that the proposed Order be amended to require consultation before use of the legislative powers which would be created and to make the use of the power subject to affirmative resolution procedure on the grounds that important matters relating to animal welfare and public safety would be involved and changes to legislation in such areas as these would properly require a vote in the House.

18. The Department has accepted our recommendation.

Duration of the close season for female deer

19. Article 5 of the proposed Order contained provision to amend Schedule 1 to the 1991 Act to commence close seasons for female deer on 15 March (and also to establish close seasons for various hitherto unprotected deer species, and for animals which are hybrids of red deer and sika deer parents). During the scrutiny period we received representations from the Deer Initiative and British Deer Society arguing that the close seasons for female deer should commence on 1 April. In light of the views of these bodies, and with the support for their argument given by the RSPCA, we recommended that the draft Order should provide that the close season for female deer should commence on 1 April. The Department has amended the draft Order accordingly.

20. As is noted in paragraph 21 of the Explanatory Statement, following the change discussed above the draft Order now also provides that the close season for male Chinese water deer should similarly commence on 1 April. This is because the male and female deer of this species are so hard to distinguish that it would expose the females to risk of shooting during their own close season if the males had a shorter close season.[7]

21. We are content with the form of this element of the draft Order.

Action to inform members of the public of the risk of night shooting

22. In addition to our recommendations for amendment to the form of the proposed Order, we also considered that it would be appropriate for licensing authorities to take particular care when issuing licences to permit the shooting of deer at night, and that in that context it would be important for consideration to be given to requiring particular action to bring the attention of the public to night shooting so that unnecessary risk might be minimised. We had in mind such expedients as the licensing authorities requiring the posting of notices in the vicinity of night shooting at local visitors centres as a condition for the issue of a licence.

23. In their response to this the Department has noted that while steps to publicise night shooting are necessary and must be carried out where there are public rights of way, they would need to be balanced against risks that might arise from such publicity, in particular that the activities of protestors so informed might in some circumstances actually expose individuals to danger. The Department states that "Licensing authorities will need to judge on a case-by-case basis the appropriateness of different publicity tools when advising deer managers".[8] We agree with this and welcome the Department's commitment, given in its Explanatory Statement, to bring our views to the attention of the licensing authorities.

5 We note that, as drafted, the penultimate paragraph of the Explanatory Note to the Order does not properly reflect the text of the Order. In that paragraph, referring to article 6, the reference to article 4 should be to article 4(3). The reference to section 4(3) of the Regulatory Reform Act 2001 should be to section 4 of that Act. We assume that these errors will be amended by the Department if and when the Order is presented to the Minister to be made. Back

6 In respect of Wales, the draft Order as laid now provides for subordinate provisions orders to be made by the Welsh Ministers, in line with the transfer of functions under section 4(6) of the Regulatory Reform Act 2001. Back

7 Paragraph 6 of the Explanatory Statement states "This statement refers to the amendments made to the Order subsequent to the recommendations of the Committee. No further amendments have been made". The amendment we discuss here is made by way of a supplement to our recommendation concerning the close seasons for female deer. Back

8 Explanatory Statement, paragraph 24 Back