Chamber and committees

The proposed new offence on driving deer recklessly referred to in the consultation on the Wildlife and Natural Environment Bill would include the use of aircraft to drive deer recklessly.

The Scottish Environment Protection Agency''s (SEPA''s) Compliance Assessment Scheme (CAS) improves on the Operator Performance Assessment (OPA) scheme in a number of ways. While OPA only applies to a limited number of industrial sites, CAS will cover all regulatory regimes for which SEPA is responsible. CAS is based on continual assessment of a permit holder''s performance, rather than the single snapshot approach under OPA. CAS is also designed to assess the operation of facilities more precisely by looking at both environmental performance and environmental management. In addition, CAS will enable SEPA to link the level of fees paid by an operator directly to performance, rewarding good performance and penalising poor performance.

Unsatisfactory performance under the Scottish Environment Protection Agency''s (SEPA''s) Operator Performance Assessment (OPA) scheme does not in itself constitute a criminal offence. During the last five years, SEPA has reported a total of 284 cases to the Procurator Fiscal for breaches of permit conditions under a range of environmental regimes. Eleven of these cases involved permit holders who had received an unsatisfactory assessment under the OPA scheme.

The Marine (Scotland) Bill proposes that consenting for aquaculture should be based on impact rather than activity. This is a complex issue and we continue to listen to representations on the best regime. The aquaculture industry is vitally important to Scotland and in order to help it develop sustainably a strategic approach is required.

Where an operator has failed to achieve a satisfactory assessment under the Scottish Environment Protection Agency''s (SEPA''s) Operator Performance Assessment (OPA) scheme, SEPA works with businesses wherever possible to achieve satisfactory compliance with permit conditions. SEPA has a range of options and approaches designed to improve an operator''s performance. They are contained in SEPA''s Enforcement Policy (available on SEPA''s website at http://www.sepa.org.uk/about_us/policies.aspx). These options range from preliminary discussions and information about good practice, to formal letters, enforcement notices which require the permit holder to comply with set conditions, suspension or revocation of permits, to a report to the Procurator Fiscal.

It is normal procedure for Scottish Natural Heritage (SNH) to first seek a land manager''s voluntary cooperation to deliver the restoration of damaged features of Sites of Special Scientific Interest (SSSIs).

If a land manager does not restore such features voluntarily then the only option available at present is prosecution and, if the land manager is found guilty, for the courts to impose a restoration order. This can be a lengthy and uncertain process involving significant effort on the parts of the state prosecution service, the accused and their defence. It is also highly adversarial and likely to affect SNH''s future working relationship with land managers in delivering the conservation of the natural features of SSSIs.

If the proposal is progressed and receives parliamentary approval, the facility of issuing a restoration notice would be an intermediate enforcement option which could, in many cases, be a more appropriate means of securing the restoration of illegally damaged natural features when voluntary restoration was not forthcoming.

The Wildlife and Natural Environment Bill Consultation Document does not intend to suggest that a person found guilty of attaching a ring, tag or other marking device to a live badger could have done so unknowingly. The consultation document proposes a new offence of knowingly causing or permitting another person to attach a ring, tag or other marking device to a live badger.

Section 1 of the Wildlife and Countryside Act 1981 as amended by the Nature Conservation (Scotland) Act 2004 now provides the full range of protection to all wild birds as is given by Areas of Special Protection (ASP) with the exception that an ASP Order can also restrict public access to an area. The Land Reform (Scotland) Act 2003 established a right of responsible access to land and inland water throughout Scotland with certain limited exceptions. Scottish Natural Heritage is aware of no instances where public access is a cause for concern on Areas of Special Protection. The Scottish Outdoor Access Code gives additional advice on how to avoid damaging protected sites and disturbing wildlife. Damage would, in many cases, be a criminal offence and be dealt with under relevant legislation.

The Wildlife and Natural Environment Bill Consultation Document does not intend to suggest that a person found guilty of wilfully injuring, taking or attempting to kill a badger could have done so unknowingly. The consultation document proposes a new offence of knowingly causing or permitting another person to injure, take or attempt to kill a badger.

Should this proposal be progressed and receive Parliamentary approval, it is anticipated that procurators fiscal would still be able to bring prosecutions under section 19 of the Nature Conservation (Scotland) Act 2004 without a restoration notice being issued beforehand, depending on the circumstances of each case. In addition, if a third party was responsible for the damage of a Site of Special Scientific Interest then, unless they were in a position to carry out restoration works, prosecution for intentional or reckless damage to the protected natural features would remain the only option available.

Failure to comply with such a restoration notice would be a criminal offence for which the relevant person or persons could be prosecuted. In that scenario, it would be a matter for the procurator fiscal to decide whether to also prosecute for intentional or reckless damage of the SSSI''s features, and it should be noted that a successful prosecution for this could result in the court issuing a Restoration Order under Section 40 of the Nature Conservation (Scotland) Act 2004.