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Scottish Government submission of 16 February 2022

PE1859/W - Retain falconers’ rights to practice upland falconry in Scotland

Thank you for your letter of 8 December 2021 to Iain Jeynes, Committee Liaison Officer, Scottish Government, regarding the Citizen Participation and Public Petitions Committee’s consideration of the above petition at its meeting on 1 December 2021.

The Committee agreed to write to the Scottish Government to ask how the Scottish Government expects captive birds to express the freedom to exhibit natural behaviour if they are unable to differentiate between legal and illegal species.

The Committee also sought clarification as to the circumstances in which falconers may face prosecution should their bird take a mountain hare; what the legal penalties for this might be and how the legislation is currently enforced. The Committee is also interested to know how the Scottish Government believes falconers can best manage their work in the current legislative context, given the comments made by the petitioner in his submissions of 11 November and 30 November 2021.

Each of the above points are answered in the response below.

As you are aware, from 1st March 2021, mountain hare was added to Schedule 5 of the Wildlife & Countryside Act 1981 (as amended) (“the 1981 Act”). The change in protected status, from some protection in its breeding season to full protection all year round, follows concerns about local population declines and the conservation status of mountain hare. This means that anyone who intentionally or recklessly kills, injures or takes mountain hare without a licence will be acting unlawfully.

It is the responsibility of the falconer to eliminate, or at least significantly reduce the risk of their birds of prey taking mountain hares, by only undertaking falconry where mountain hare are unlikely to be present. The 2019 Joint Nature Conservation Council Article 17 Report to the EU contains a map which shows the latest published information on distribution of mountain hares in Scotland which should provide the petitioner and falconers with the necessary information to avoid flying their birds of prey in areas where mountain hares are likely to be present and therefore allow captive birds to express the freedom to exhibit natural behaviour within the current legislative context. See pages 12 and 13 in https://jncc.gov.uk/jncc-assets/Art17/S1334-UK-Habitats-Directive-Art17-2019.pdf . It is also the responsibility of the falconer to obtain the necessary permission from the landowner to undertake falconry on their land.

While the above provides a general outline, it is up to the individual falconer to seek their own legal advice regarding interpreting and complying with the Wildlife and Countryside Act 1981 in any particular situation or circumstance.

Police Scotland are responsible for enforcing legislation and investigating potential crimes in Scotland. The Crown Office and Procurator Fiscal Service (COPFS) is Scotland’s prosecution service. COPFS receive reports about crimes from Police Scotland and other reporting agencies and then decide what action to take, including whether to prosecute an individual.

The penalties for wildlife crime vary depending on what offence has been committed. Mountain hares are covered by several pieces of legislation, including the Wildlife and Countryside Act 1981; the Wild Mammals (Protection) Act 1996; and the Protection of Wild Mammals (Scotland) Act; all of which were amended by the  Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020.