Regulator ‘erred in law’ by not publishing reasoning behind beaver kill permits

Scotland’s nature regulator “erred in law” by not publishing its reasons for granting beaver cull permits, a judge has ruled, but the court rejected the notion that the regulator’s general approach to issuing lethal control licences was unlawful.

Last year, campaign group Trees for Life launched a judicial review in the Court of Session against the Scottish government’s policy on issuing beaver licences, which grant permission for the animals to be killed. The group argued that the policy failed to make the killing of the protected species “a genuine last resort”, specifically in the Tay catchment.

According to regulator NatureScot, the beavers in Tayside and surrounding areas are the result of unauthorised releases or escapes, with many having settled on ‘Prime Agricultural Land’ (PAL) where the regulator says they have had serious impacts. Classified PAL makes up around 13% of Scotland’s land cover and is considered of national importance.

Yesterday, Judge Lady Carmichael ruled that NatureScot’s failure to publish its reasons for issuing individual permits was unlawful, and ordered that activity under current permits must be halted until this has been corrected. 

The ruling has been celebrated as a big win by Trees for Life. Its conservation manager, Alan McDonnell, said: “This is an important victory for accountability and transparency, which will benefit everyone including conservationists and farmers.”

He continued to say that the ruling creates hope that the Scottish government may take the approach of capturing and relocating beavers which are causing damage to priority farmland rather than allowing them to be killed.   

However, Lady Carmichael's ruling did not state that NatureScot’s decision-making process regarding lethal permits had broken any laws or that the regulator had failed to consider alternative options. Indeed, of the five complaints Trees for Life took to court, four were dismissed by the judge.

These rejected complaints included the accusation that NatureScot had failed to interpret the Habitats Regulations correctly, that it had a “blanket policy of granting licences for lethal control where applications related to PAL”, and that it had failed to consider the individual circumstances of each application.

Commenting on the court decision yesterday, Robbie Kernahan, NatureScot’s director of sustainable growth, said that “for the most part” the judgment vindicated the regulator’s licensing approach.  

“We have been successful on all points of law except that we should have issued written reasons with each licence to explain why it had been granted”. 

Today, a NatureSot spokesperson told ENDS that in light of this part of the ruling, the regulator “will amend existing licenses when needed, to show that culling is a necessary last resort, due to issues such as agricultural damage”, but that contrary to some press reports, the court decision does not affect the legality of any acts carried out under current species control licences for beavers.

Although Trees for Life’s complaints were largely dismissed, the court’s decision on the requirement to publish reasons for issuing a licence is perceived by many in the conservation community as having wider implications on other protected species. 

Raptor conservationist Dr Ruth Tingay has written in a blog post that the ruling emphasises “the high level of consideration that NatureScot will have to demonstrate before it issues any such licence”. 

She added that it will have “obvious implications for the licensed killing of all other protected species in Scotland, and most importantly as far as I’m concerned implications for the constant, behind-the-scenes agitating by the game shooting and farming industry to be given licences to kill birds of prey such as buzzards, sparrowhawks, red kites, hen harriers, even white-tailed eagles".