EWCA Civ 1637 (9 November 2021) https://www.bailii.org/ew/cases/EWCA/Civ/2021/1637.html
These were appeals in two judicial reviews heard together. The first was brought by the RSPB and the second by Mark Avery, who for many years worked for the organisation. The defendant in each case was Natural England, an executive non-departmental public body, sponsored by DEFRA.
The issue in each case was whether Natural England had acted unlawfully in granting sequential licences to ‘take and disturb’ hen harriers for scientific, research or educational purposes pursuant to section 16(1)(a) Wildlife and Countryside Act 1981 (the 1981 Act). RSPB and Dr Avery ran somewhat different arguments, but both maintained that the licences were unlawful.
Hen harriers are birds of prey, breeding widely across Eurasia and North America. In England, they nest mainly in the northern moorlands among the heather to be found, in particular, on grouse moors. Their numbers have long been in serious decline: in 2016 there were only four pairs in England.
As described by Lord Justice Phillips: ‘One of the main causes for the breeding failure by hen harriers in England is persecution, accounting for almost all nesting failures in driven grouse moors (other than in the Bowland Fells SPA). The persecutors are believed to be gamekeepers and others working on driven grouse moors, illegally killing hen harriers, destroying or disturbing their nests and taking eggs in order to reduce the number of birds preying on red grouse chicks (which adult hen harriers feed to their young during their breeding season) so as to maximise the number of grouse available for shooting in the autumn. A further aim of such illegal activity may be to limit the extent to which hen harriers overfly shoots, depressing the number of grouse taking flight’.
The principal options for addressing the persecution were: prosecution under section 1 of the 1981 Act, which had had limited effect; diversionary feeding (providing hen harriers with food supplies as alternatives to grouse chicks), which had enjoyed considerable success in Scotland but had had limited take-up in England; and brood management: once hen harrier nests reach a certain density in the vicinity of a grouse moor, eggs and unfledged chicks are removed from some nests, reared in captivity and released when they are fledged into a suitable habitat.
The hypothesis of brood management is that hen harrier eggs and chicks will not be persecuted and predation of grouse chicks will be kept at levels which do not threaten the economic viability of the grouse moor. Natural England decided to explore the hypothesis and issued licences for temporary trials under section 16(1)(a) of the 1981 Act. An assessment under the Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations) recognised that interventions on small populations of a species carry a very high degree of risk but the Agency concluded that a trial was nonetheless the best option. Conditions were attached to the licences.
Due to their rarity and vulnerability, hen harriers have the highest level of legislative protection: they are listed in Annex 1 to Directive 2009/147/EC (the Birds Directive), such that EU Member States are required to take special conservation measures to ensure their survival and reproduction and to designate Special Protection Areas (SPAs) for their conservation; they are species of principal importance for biodiversity conservation in England, under section 41 National Environment and Rural Communities Act 2006; and they are protected under schedule 1 to the 1981 Act. The 1981 Act gives effect to the Birds Directive, which therefore survives Brexit.
Section 1 of the 1981 Act makes it an offence to kill or take a wild bird, to damage or destroy a nest being built or in use or to take or destroy the bird’s eggs. Section 16(1) then allows licences for activities which would otherwise breach section 1. The activity in paragraph (a), as noted, is ‘scientific , research of educational purposes’ and that in paragraph (c) ‘the purpose of conserving wild birds’. Under subsection (1A), the licensing authority must not grant a licence ‘for any purpose mentioned in subsection (1) unless it is satisfied that, as regards that purpose, there is no other satisfactory solution’.
The Court of Appeal held that Natural England only had to consider alternatives to brood management as a method of conducting scientific trials etc under section 16(1)(a) of the 1981 Act: it did not have to consider alternative conservation approaches more generally. That was clear from the wording of paragraph (a) and the fact that paragraph (c) addressed the latter. On that basis, the decisions to grant the licences under paragraph (a) could not be faulted. There was no need for the Agency to consider diversionary feeding in this context, because that would not provide any evidence of the effectiveness of brood management, the purpose of the trials.
Rather confusingly, the Court nevertheless said that, when deciding whether to grant a derogating licence, Natural England had to ensure that it was not thwarting the relevant legislative policy (here, the conservation of threatened species).
The Court also rejected Dr Avery’s argument that it was incompatible to read paragraph (c) ‘as permitting a scheme, even on a temporary basis, which moved from a “dissuasive criminal enforcement” regime to one which involved removing hen harriers and their eggs to placate the criminals’. Natural England had properly considered whether a trial of brood management was appropriate to collect evidence to weigh in the balance for longer-term solutions.
The Court, finally, held that on the facts brood management in two SPAs, permitted under the terms of the licences, would not defeat certain Conservation Objectives for SPAs by internally displacing hen harriers and constraining their population and thereby adversely affecting the integrity of the sites contrary to regulation 63 of the Habitats Regulations.
The Court of Appeal was at pains to reject the appellants’ overarching criticism that Natural England was acting to protect the driven grouse moor industry rather than hen harriers.
It seems clear, however, that the root cause of the very low numbers of hen harriers in the northern moorlands was persecution by the driven grouse industry. Rather than address that persecution head-on, Natural England sought a solution which permitted co-existence between hen harriers and the industry: the purpose of the scientific trials was to see if moving chicks from away from grouse areas worked in this context. Without grouse shooting, displacement would not have been necessary.
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