In April 2019, Natural England revoked three general licences – the legal tools necessary to trap and shoot birds designated as pests – giving only 24 hours' warning. The licences had previously allowed around 50,000 people to shoot 16 species of pest birds, from wood pigeons and magpies to carrion crows.
The licences had previously allowed around 50,000 people to shoot 16 species of pest birds, from wood pigeons and magpies to carrion crows.
Chaos ensued, not simply because of the short notice, but also because the lack of lethal control left crops and new-born lambs at risk, and birds on the Red List of Threatened Species in peril throughout the breeding season.
The UK licensing system for lethally controlling birds operates under the EU Birds Directive 2009/147/EC, which gives legal protection to all species. The general licences are intended to be a light-touch regulatory tool that allow people to:
The licences are open, meaning that users do not have to apply for them, but do have to abide by their terms.
Since 1992, repeated government reviews have queried whether the licences are necessary or are being used correctly. But it was only when campaign group Wild Justice threatened court action over the perceived illegalities that the system came to a halt.
Natural England was advised that the way the licences were issued was illegal, and revoked them with immediate effect.
Members of the British Association for Shooting & Conservation (BASC) were up in arms, taking thousands of enquiries in the aftermath of the decision, and along with farming bodies, conservation organisations and pest control businesses, it issued a firm response to Natural England.
The agency initially tried to accelerate the process of a separate licensing system known as individual licences and launch several general licence replacements.
However, the individual licences were slow to be issued and the general licence replacements contained a number of errors.
Further condemnation followed. Such was the impact of the criticism that the then environment secretary Michael Gove took the licensing process back from Natural England and brought it under his control at the Department for Environment Food & Rural Affairs (DEFRA).
In July, DEFRA reintroduced a set of temporary general licences that expired in February 2020, but have since been renewed until 31 July. While by no means perfect – there continues to be concern over the use of the licences on EU-designated sites and the implementation of 300m buffer zones around them – this regime has provided some stability for people who need to use general licences.
The devolved governments of Scotland and Wales and their licensing agencies also reviewed their general licence systems. They have consulted to different levels and have reissued revised licences.
As we await DEFRA's findings and long-term solution, along with seeing what measures the devolved governments will take, we should think about how to avoid similar problems in the future.
Once the challenge from Wild Justice came through, Natural England took legal advice and believed it was acting unlawfully by re-issuing the general licences in the format it had been using. The agency, along with other government bodies, would have come in for significant criticism for fighting a legal case it was unable to defend, especially as its finances were and continue to be under considerable pressure.
In 2015, a Law Commission report that recommended reforming the Wildlife and Countryside Act 1981 also raised concerns about the licences saying that 'they require licensees to make scientific judgements that the licensing authority should be making itself before the licence is granted'.
This being the case, did Natural England have to act so peremptorily at a critical point of the year when the general licences are heavily relied on? Why did it not take forward the Law Commission's recommendations and rectify the situation in a sensible timeframe? What do we expect from the new licences once they are published in August?
The department understands the requirement for making the licences easy to follow: it has to be on the right side of the Birds and Habitat Directive which is closely replicated in the 1981 Act, while simultaneously ensuring that lethal control can, where necessary, continue.
BASC is trying to ensure that scientific evidence and practical experience will form the basis of the licences by attending round-table forums and direct contact with the agency. While we seek a fit-for-purpose system, we are also clear that the pests list needs to remain flexible so that species can be removed or added. That means the list should be regularly reviewed.
BASC also remains concerned about the way the licensing system will operate on EU-designated sites, and the proposed 300m buffer. It appears that the individual licences allowing lethal control in these areas are not going to be straightforward to obtain, putting the protection of species of conservation concern at risk.
While DEFRA, Natural England, and the devolved governments have retained the principle and practice of a general licence, changes may be made. There is no doubt that future licences published by DEFRA will be amended; species could also be removed from the general licence and more onerous conditions may be introduced around the timing of its use. It may even become a requirement that shooters provide records of the numbers and types of pest birds they have killed.
Wild Justice has started a judicial review on whether the release of game birds into the countryside could be considered a plan or a project under the Conservation of Species and Habitat Regulations 2017, and its pre-action protocol letter of 20 January 2020 suggests a 5km buffer be implemented around all EU-designated sites as a way for DEFRA, Natural England and Welsh Assembly ministers to meet the precautionary principles.
The legal challenge will show whether releasing pheasants is a plan or a project requiring a habitat regulation assessment (HRA). Should an HRA be required, and that finds release of game birds is having a negative impact, Wild Justice will no doubt ask whether UK laws are strong enough to manage this. Science will play a huge part in assessing whether there is damage to the EU-designated sites, the size of any buffer zone, and what other steps should be taken.
BASC's declared mission is to enhance the environment through sustainable shooting. This is important for farming and many other sectors, so we must show:
The shooting community should ensure that its activities are an asset to the environment. With more focus on this than ever before, we must be both progressive and realistic in our outlook.
Caroline Bedell is executive director of conservation at BASC firstname.lastname@example.org
Related competencies include: Legal/regulatory compliance, Management of the natural environment and landscape