General Licences to Kill or Take Certain Species of Birds
June 2004
Introduction
The National Gamekeepers' Organisation (NGO) was pleased to be consulted by Defra officials working on the review of General Licences for the control of certain birds, issued under the Wildlife and Countryside Act 1981. These licences are of great significance to our members and we would hope to be included in any discussions subsequent to the written consultation exercise.
For the record, the NGO was founded in 1997 and now has over 8,000 members. It represents the gamekeeping profession in England and Wales. More details about the organisation can be found on our website: http://www.nationalgamekeepers.org.uk/
Some General Points
The reasons given in the consultation document for the very substantial changes being proposed are frankly pretty thin. Whilst we agree that reviewing matters from time to time is good practice, we do not support change for the sake of it, especially if there is no compelling evidence of a problem.
In response to a question about these licences in April 2000, the Minister told Parliament "The populations of the species concerned are monitored and there is no evidence that their conservation status is currently threatened by these control techniques."[1] What new evidence has come to light to justify a major overhaul of the licensing scheme?
Defra's covering letter for this consultation says it is ten years since the licences were introduced and there has been "no significant change to their detail or layout". Why is that a weakness? Surely it is a sign that they do their job pretty well.
The letter from Defra also says that the licences "may have shortcomings" which lead to consequences (a), (b), and (c) as listed on page 2 of the letter[2]. Yet no evidence is offered for any of this, still less any evidence of a sufficiently widespread problem to justify the changes being proposed. The number of court cases has been tiny given the extent of control under the licences.
Consultees are also told: "It is important that the UK licences remain robust and accord with the EC Wild Birds Directive" (Exec Summary, para 1). We agree, but the licences have not changed, so they are as robust now as they ever were. More significantly, the Birds Directive has not changed either. The UK licences have not been the result of infraction proceedings, so why is the UK Government seeking to change them?
There is also an underlying theme in the consultation documents that general licences should not be granted for birds in decline (eg. para 1, page 6). Contrary to what is said, this premise is not based on anything in the Birds Directive. The EU's own report on the application of the Directive shows that 25% of European bird species are in decline, 42% of them for reasons proven to be linked to changes in agriculture, so it is hardly surprising that some of the pest birds fall into this category. The fact that a species has declined does not mean that it has become rare (for example there are still 12 million house sparrows), nor does it justify removing from them from General Licences.
The High Court Case and ‘No Satisfactory Alternative'
PLEASE READ THIS CAREFULLY: IT IS OF GREAT IMPORTANCE
We are told in the consultation papers: "These licences allow persons wishing to undertake action to do so immediately where there is no other satisfactory alternative and where action is imperative" (Executive Summary, para. 2).
This interpretation is amplified later in the papers by the suggested requirement that the use of the licences should be "limited to those persons suffering the actual damage, or the likelihood of such, or individuals taking action on their behalf" (page 11).
It is further amplified by the suggestion that it might be necessary for licence users to attempt other methods of control before using the methods allowed by the licences (eg. page 7, final paragraph).
The line of thinking reaches its conclusion later in the consultation where Defra suggest the insertion of a ‘no other satisfactory solution' clause into the agricultural licence (page 19) and the larsen trap licence (page 28), stating that: "Such a condition would bring the licence more into line with the EC Wild Birds Directive by requiring licensees to have tried other reasonable methods before using lethal control."
This conclusion is just plain wrong. The Birds Directive does not require that individuals have ‘no other satisfactory solution', as has recently been clarified by the European Commission's own ‘interpretive guide' to the Directive. It must be understood by Defra that changes of this nature are major issues for licence users. Having to show actual or likely damage, let alone that there was no other satisfactory solution, would be a dramatic and highly restrictive departure from the status quo. It cannot be justified.
Ministers have always maintained that it is the UK that has to show Brussels, if asked, that the licences have been issued by the UK authorities because there is no other satisfactory solution. They have repeatedly advised that it is not the duty of individuals using the licences to show ‘no other satisfactory solution'.
Throughout the consultation papers, the basis given for this proposed change is the High Court judgement RSPCA v Craig Cundey 2001. Lawyers tell us the Cundey case has no bearing on this aspect of the licences at all. The Cundey case merely revolved around what Mr Cundey said about why he was trying to control the birds in question. He lost because what he told the enforcement authorities at the time did not fit with the purposes stated on the licence. Had he said, for example, that he was controlling pests to conserve wild birds (one of the stated purposes), he would have had no case to answer.
The Cundey case rightly showed that in using the licence practitioners must adhere to the terms and conditions on the licences and also, crucially in Cundey's case, to the stated purposes (eg protecting crops, conserving wild birds, etc.) but the judgement did not require that licence holders themselves should show there was no other satisfactory solution, let alone be able to prove it by showing that they had tried other non-lethal methods first.
What Gamekeepers Support in this Review
An occasional review, even a regular five-yearly review, of the licences is good practice and we are not opposed to this exercise. However it may also be good practice to leave things as there are, particularly if circumstances have not materially changed since the licensing system was introduced.
We welcome some of the suggestions for making the licences clearer and more consistent. (For example the combining of the two ‘air safety' licences as is suggested in the consultation document).
We also welcome the suggestion for a new licence to allow culling for the purpose of preventing disease (Annex A, page 19). This ties in with Defra's other work on the Animal Health and Welfare Strategy and in the wake of the Foot and Mouth this is certainly a sensible route to take.
We welcome the addition of Canada Geese and Egyptian Geese to licences which allow for their year-round control for agricultural purposes (page 17). We believe they should also be controllable for other purposes. For example, whilst not a pressing problem for gamekeepers, we are aware that for keepers of amenity grasslands (parks, golf courses, etc.) high concentrations of these birds can be a problem. The agricultural licence being suggested would be insufficient to give such persons a defence for controlling them.
We have no objections to the suggestion that cage traps should be inspected carefully, nor to the suggested requirement to release non-target birds immediately (Annex A 5).
We welcome the change of purpose for licence WLF 100087 to ‘for the purposes of conserving flora and fauna' (Annex A, page 23). It is clearly a sensible aim that any wording of this nature should mirror that used in the Birds Directive itself.
What Gamekeepers Oppose in this Review
We oppose most strongly what Defra describe as ‘Main Proposal 3' (page 11) about individuals having to show there is no other satisfactory solution. We have already dealt with this in detail above.
We also strongly oppose the suggestion that the use of licences on SSSI's/SAC's should be subject to prior discussion with English Nature. No evidence for this suggestion is offered in the consultation papers. Most grouse moor is SSSI and much low ground woodland etc. It would be a bureaucratic nightmare to involve EN in individual decisions about bird control in these areas. To do so would be quite inappropriate at a time when the Government is pledged to cut red tape. The pests concerned have little to do with the purposes for which these site designations were granted in any case, while some of the species protected by actions under the licence contribute in a major way to the conservation and scientific importance of the safeguarded sites.
We seek an important clarification, please, that the addition of a clause requiring humane killing of all captures (Annex A 3 and 4 on page 12) will not prevent trap users from keeping back some captured birds as decoys for use in other traps. This is obviously crucial to their continued use.
We are concerned at the suggestion that cage trap inspection should be ‘at least once a day between dawn and dusk' (Annex A 5, page 12). This period of time varies hugely at different times of year and in different latitudes. It could be problematic, for example, in winter for part-time keepers who have to check their traps after a full day's work elsewhere. We think a more flexible approach is needed and we would be happy to discuss this point.
We oppose very strongly the suggestions that cage traps and larsen traps should carry the name and phone number of the operator (Annex A, pages 13 and 26). No compelling reason is cited for this. It would certainly not reduce the likelihood of criminal damage to traps as is suggested. It would, however, dramatically increase the likelihood of gamekeepers and their families being on the receiving end of unpleasant and antisocial phone calls. Many keepers have been subject to such hate campaigns in the past.
On balance, we think it would be workable if capture compartments of cage traps were to have shade and water (Annex A 5, page 14). This should not be extended to the provision of food in Larsen traps, however, as that would lead to an increase in non-target captures.
We oppose very strongly the suggested removal of gulls, jackdaw, jay and rook from the cage trap licence (Annex A, page 14), from the licence for the protection of flora and fauna (page 23) and (in the case of jay and jackdaw only) from the Larsen trap licence (page 25). All these species do significant damage to game and wildlife and none is threatened. No evidence is offered which justifies these dramatic changes. We have countless members who will be happy to describe to Defra the damage that these species can do to agriculture, game and wildlife. Gamekeepers must retain the right to control them easily and efficiently. Individual licensing would be a bureaucratic nightmare and quite inappropriate for species as numerous as these.
We oppose the suggestion (page 29) that a trap should not be set at all if it might snow and thus prevent the user from checking it. How can anyone know if it ‘might snow' to the extent that a trap cannot be inspected? The idea could in theory preclude the use of traps throughout the uplands in wintertime, one of the key seasons for their deployment in wildlife management terms. There is no evidence of a problem here but plenty of reason to suspect there will be problems if this suggestion goes ahead.
We oppose most strongly the suggestion that agricultural protection licences should only be used ‘for the purpose of increasing the efficiency of scaring', and then only on ‘your property' and after trying other non-lethal ‘solutions' first (This is a recurring theme throughout the document but especially on page 18). These changes would be hugely threatening to a large proportion of woodpigeon shooters who do not own the land on which they shoot, nor are they involved in bird-scaring activities and ‘non-lethal solutions'. This goes back to the heart of the debate here about satisfactory solutions and the fact that the Birds Directive does not require individuals to show that they are operating in this way.
We oppose the suggestion that materials for the construction of larsen traps should be specified (Annex A, page 27). Many traps already exist in a variety of materials and there would be economic issues arising from requiring a change. Where is the evidence that a change is necessary? The key thing is to ensure that they are constructed in such a way as to ensure welfare. If there really is evidence of a problem in this area, it could best be dealt with by an additional condition on the licence(s) requiring cage traps to be constructed in such a way as to minimize the risks of decoy or captive birds being inadvertently harmed.
We stronly oppose the insertion of a ‘no other satisfactory course' clause in the Larsen licence (Annex A page 28). See above.
We oppose the removal of gulls, jackdaws and jays from the automatic weapons licence (Annex A page 31). This is a matter of control techniques, not population declines. Where is the evidence to support this proposal?
Individual Licences
In several places the consultation documents suggests removing ‘borderline' species from the general licences and allowing persons with problems to apply for individual licences. Our experiences with badgers and piscivorous birds suggest caution here. Defra themselves says in this consultation document (page 5, para 3) that individual licensing would be ‘unreasonably burdensome' and ‘bureaucratic'. The NGO's view is that individual licensing is only appropriate where rare species come into conflict with man's interest and require authorized control. General licenses are the right approach for dealing with common and widespread pest birds that need to be controlled by man. The European Commission in its recent interpretive guide to the Birds Directive has acknowledged this to be the case.
Follow-Up Meetings
We hope that this response makes it clear that although we support the concept of Defra's review and agree with some of the suggestions, we have major reservations about a good deal of what has been proposed and sound reasons for the positions we have outlined in this response.
Defra has said this consultation is very much an initial exploration of the licensing system (although in this context we find the inclusion of so much detail inappropriate and the suggestion that the review will be completed and the licences amended before the year-end alarming). We would very much like to be part of the ongoing discussions on these matters before any firm conclusions are reached. Our members have more to lose than most, so we look forward to sitting down with Defra to take these matters forward.
[1] Mr Morley, responding to a question from Mr Baker [121782]
[2] (a) Leaves users open to inadvertently committing an offence; (b)Allows those determined to break the law through misapplication of the licence to do so; (c) May leave enforcement authorities without the clearest possible guidance on when an offence has been committed.