Beaver management: Key arguments

A summary of the key arguments presented at the Judicial Review of beaver management in Scotland

A legal challenge to NatureScot’s approach to licensing beaver management in Scotland, brought by Trees for Life, was heard at the Court of Session on 3rd and 4th June 2021. This is Trees for Life’s summary of the key arguments presented, which considered four legal areas related to NatureScot’s decisions to issue licences for managing protected species like beavers that would otherwise be prohibited by the Habitats Regulations. These prohibited activities include killing, disturbing or damaging the resting places of protected species.

The first three of these areas were about each of the ‘tests’ which NatureScot must apply to any license application to derogate from the Regulations. The final area of debate concerned the extent to which this was a question of domestic or EU law.

Test 1: Has a legitimate purpose for issuing a licence been established?

The Regulations allow licences to be issued to manage protected species for a number of defined legitimate purposes. These purposes include the prevention of serious damage to valuable farmland and all parties to this judicial review accept that in certain circumstances beavers can and have caused such serious damage to parts of lower Tayside’s prime agricultural land.

However, Trees for Life contends that NatureScot issued licences without assessing whether this serious damage was actually taking place. We know from answers given in Parliament and material obtained from NatureScot via Freedom of Information requests that a significant proportion of the lethal control licences have been issued without site visits to assess the situation. In fact, NatureScot’s call logs indicate that a number of these lethal control licences were issued on the basis of a single phone call and licensing staff checking a database which indicated that serious damage was ‘likely’ to occur. As a result, a number of licences to kill beavers appear to have been issued where there was insufficient evidence to indicate that damage was likely to occur.

NatureScot claims that these call logs, which they kept as records of their decision making, only provide a ‘snapshot’ of the process, implying that more scrutiny was applied to the licence applications we highlighted in our submissions to the court. However, they have not adequately described what this additional scrutiny was or produced any records to confirm its existence. Such record keeping, or audit trailing, is common practice in NatureScot’s handling of other casework relating to the Habitats Regulations.

It is interesting to contrast this approach to licensing beaver management with NatureScot’s guidance to others on providing information to support a licensing application to manage other protected species. This makes it clear that site survey information will be required and that the survey conditions, methods, records and interpretation should all be rigorous and clear. Trees for Life contends that a number of beaver management licences have been issued based on information that falls well short of this guidance.

Test 2: No satisfactory alternative to the licence being issued

Naturally, any licence issued needs to be fit for purpose. So in this case, whatever management is permitted under licence must be sufficient to prevent serious damage to prime agricultural land. So far so good, but strangely, there is a dispute over what happens next.

Trees for Life argue that, when deciding to license an activity to meet this purpose, the law requires NatureScot to license the activity with the least negative impact on the protected species concerned. Specifically we, and very many others, say that where possible, beavers should be trapped and translocated to places where they will not create conflict instead of being killed. Clearly, serious damage to farmland is prevented whether a beaver is removed by humane live trapping or by shooting. NatureScot’s own submissions noted the obvious point that live trapping has less impact on a protected species than lethal control.

However, NatureScot argues that, once they have decided to issue a licence, of any form, they are not legally required to consider the relative impacts of the different activities they might license. They went on to argue that the decision on whether they license lethal control, removal by live trapping or simply removing a beaver dam is at the agency’s discretion and that it is not for the court to consider whether or not their expert judgment is flawed or have chosen an inappropriate option.

Whatever the outcome of that issue, we find it baffling that NatureScot are choosing to issue licences to kill a protected species when a proven, effective and non-lethal alternative is available. Throughout the agency’s history, they have consistently chosen the route of least harm with other species, seen for example in the support NatureScot provides to people with bats in their houses, when lethal control is simply not an option.

In our view, the implicit suggestion that NatureScot should not be challenged on its decisions to select which means of beaver management to license is a potentially troubling one, especially given that they appear to have actively sought out legal technicalities to attempt to validate decisions that run counter to sound conservation practice.

Test 3: Will ‘favourable conservation status’ be maintained?

The Regulations require NatureScot to ensure that the conservation status of the protected species will not be adversely affected when they grant a licence. Our argument is that they failed to demonstrate this for a number of reasons, including:

• NatureScot placed no limit on the number of beavers that can be shot under a lethal control licence, which gives them no ability to adjust the level of culling as it proceeds, especially as the licences remain valid for two years. There are inconsistencies here with, for instance, licences to shoot birds such as Cormorants, where a maximum number of birds to be killed is customarily stipulated on every licence.
• NatureScot’s knowledge of the Scottish beaver population when they have issued licences to shoot beavers was heavily reliant on two surveys which were carried out 5 years apart. Again by way of contrast, licences to shoot Greenland barnacle geese which damage farmland are based on counts conducted several times per year, often on a monthly basis. These counts are then used to inform a rigorous population viability assessment which sets a limit on the number of birds that can be shot in any given year.

The two beaver surveys (2012 and 2017/18) indicated a total population for Scotland of 450 animals in 2018. Licences were then issued which allowed 87 beavers, 20% of the known population, to be shot in 2019 alone. By any reckoning, killing a fifth of a population seems an irresponsible way of ensuring a species’ favourable conservation status.

• The licences do not require the carcasses of shot beavers to be retrieved and returned for analysis. This hugely constrains NatureScot’s ability to understand the age and gender profiles of the beavers being killed. Such information is key to assessing the demographic changes in the population caused by the lethal control NatureScot has licensed, blinding them to a key aspect of favourable conservation status as defined by the Habitat Regulations.
• The impacts of the lethal control on the genetic health of the beaver population have not been properly considered. NatureScot pointed to research into the genetic variation of the Scottish population which suggests that beavers here are of comparable genetic diversity as beavers in other parts of Europe. This however, is not the same saying that beavers in Scotland are in a healthy position from a genetic standpoint. As the same research paper that NatureScot relied on in court goes onto note, ‘the degree of inbreeding in the future could be a cause for concern, particularly if dispersal becomes limited.’ Reducing a population by lethal control will undoubtedly have an effect on beaver dispersal, but there is no indication of NatureScot considering this.

NatureScot’s response to these arguments is that the data they had available, which included some additional but unspecified observations from staff and volunteers, were sufficient for them to understand how the population would develop over time. They cite early results from a new survey carried out last year which shows that the beaver population has expanded since 2018 in spite of the licensed lethal control. This of course is very welcome news, but we believe that our points still stand – that the impacts of the lethal control are not fully understood and that NatureScot failed to meet this test adequately when they issued these licences