Residential property
23 May 2019 News

General Licences - an update

Natural England revoked three General Licences (covering 16 largely commonly occurring bird species, including corvids and pigeons) on 25 April 2019 as a result of a legal challenge from Wild Justice (set up by wildlife campaigners Mark Avery, Chris Packham and Ruth Tingay in February 2019). Natural England conceded that the licences as then issued were unlawful, hence the revocation.

The legal powers relating to these licences has now been taken over by the Secretary of State for Environment, Food and Rural Affairs (Michael Gove MP) who following a call for evidence is reviewing the position.  At the time of writing his decision is awaited.

The argument revolves around whether the proposed derogation from the protection of wild birds (which includes commonly regarded pest species such as corvids and pigeons) through the use of General Licences is the only “satisfactory solution” to the problem.  The regulatory mechanism through which that derogation is allowed and overseen is an internal matter for the UK.  The condition in the General Licences post-2005 that in each individual case practitioners themselves must be satisfied that non-lethal methods are unsatisfactory does not appear to be required by the primary legislation and historically did not arise in order to delegate responsibility to individual practitioners. The requirement of ‘last resort’, in our view, applies sensibly to the derogation as a whole; not to each and every case of its use, which would be impractical or impossible to enforce

The argument propounded by Wild Justice is that Natural England had not properly satisfied itself that non-lethal means of bird control had been tried first in all cases.

The law provides protection for all wild birds in Britain.  However, it also recognises that there are circumstances when they need to be controlled to protect people’s health, safety and livelihoods and to enable the conservation of other wildlife. The general licensing system is a long-standing mechanism to allow this to happen without unnecessary bureaucracy or delay for users.

Natural England is categoric this revocation is not a ban on the legal shooting of birds where strictly necessary, but a change to the licensing system, ensuring farmers, pest controllers, gamekeepers and others who need to control birds can continue to do so. It advises that by no means will these new licences stop the future shooting of pigeons, crows or other named species.  However, individuals in England now require to apply for an individual licence.

Defra has instituted an investigation which will look at:

  • how the decision to revoke the licences was reached;
  • why the legal basis on which these general licences were issued was, it seems, flawed; and
  • whether the legal advice obtained by Natural England was correct at the time it was issued

The position in Scotland – Scottish Natural Heritage

SNH was initially very quick to issue an assurance that it would not be taking the same route as Natural England.  However, it has since confirmed that it will be launching a 12 week on-line consultation over the summer but has given reassurances there will be no change for the current year.

Inevitably given that the power to make derogations from the EU Birds Directive is a UK power (as enacted in the Wildlife and Countryside Act 1981) albeit administered separately in Scotland and England developments in England will need to be watched.

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