Fairness In Wild Bird Licensing As Keeper Wins Landmark Legal Battle

Friday 13th Nov 2015

A gamekeeper from Northumberland has today (13/11/15) won a landmark legal battle after a Judicial Review at the High Court in London quashed the decision of Natural England – the Government’s conservation advisor – to refuse to issue him with a licence to control a small number of buzzards that were causing serious damage to young pheasants in his care during the summer of 2014.

The National Gamekeepers’ Organisation (NGO) said the court’s judgment had established that in order to be lawful, “wildlife licensing decisions must, in future, be made by Natural England (NE) fairly and on the facts, without NE exceeding its powers”. The NGO, which represents keepers in England and Wales, supported the gamekeeper’s court battle.

The gamekeeper, Ricky McMorn, who is self-employed, lost his livelihood earlier this year as a result of buzzard attacks on his young gamebirds. The scale of the losses over several years had eventually made his modest gameshooting enterprise financially unviable.

Mr McMorn first applied to Natural England for a buzzard control licence way back in 2011 and had done so again each year since. But NE consistently refused to grant him a licence, despite acknowledging that serious damage was being caused by buzzard attacks taking place on his game shoot. The licensing system, administered by NE, became law in 1981 for the specific purpose of solving such exceptional and genuine cases of wildlife conflict.

The case was heard over three days at the Royal Courts of Justice in London in June this year, but Mr Justice Ouseley reserved his judgment to give greater consideration to the case. Handing down judgment today, he quashed NE’s refusal to grant Mr McMorn a buzzard licence on four grounds.

Mr Justice Ouseley concluded that NE had taken public opinion into account, which was unlawful when judging a wildlife licence application; that NE had failed to consider properly a licence to live-trap the buzzards rather than shooting them; that NE’s decision was “Wednesbury unreasonable”; and that it had been made according to an undisclosed policy which went beyond NE’s and Defra’s powers in law. Defra (the Department for the Environment, Food and Rural Affairs) is the part of Government for which NE runs the wildlife licensing system under contract.

In a very detailed 120-page judgment, Mr Justice Ouseley wrote, “The difference in [NE’s] treatment of applications for raptor licences compared to other species is stark...” and he said that it was not lawful for Defra, “to adopt a policy that made licensing the shooting of raptors to protect gamebirds more difficult than for other birds covered by the same derogation”.

The derogation he was referring to is that from the EU Birds Directive under which all wild bird licences in Europe are issued, so although the court’s findings do not have the effect of granting Mr McMorn a retrospective licence, they are likely to have consequences that go well beyond this particular case. Not least among these will be Mr Justice Ouseley’s conclusion that a Judicial Review of a licence refusal should be covered by Aarhus cost protection, meaning it costs less to lose and thus improving access to justice.

Ricky McMorn, the gamekeeper from Northumberland, who took the case to the High Court, said: “Though the ruling may have come too late to save my pheasants and my way of life, I’m still over the moon. I knew Natural England was wrong to refuse me a licence and today’s judgment confirms that. Why shouldn’t a gamekeeper have the same access to the licensing system as anyone else when exceptional conflicts with wildlife occur? Let’s hope that Defra and Natural England sit up and pay attention to the court ruling and that it makes the licensing system fairer for those who experience genuine problems like mine. No-one should have to face years of unlawful blocking tactics such as I did and which have now been laid bare in Mr Justice Ouseley’s judgment.”

Mr McMorn added: “I’d like to thank the NGO, for its help and support in bringing the case, and also my excellent legal team, James Maurici QC and Richard Moules, of Landmark Chambers, and solicitors Matthew Howarth and Mark Jones from Gordons LLP. I should also like to thank those many, many people who so very generously contributed to the NGO Fighting Fund, which was set up last year to help cover my legal costs.

Lindsay Waddell, the Chairman of the National Gamekeepers’ Organisation, said: “This is an historic day for gamekeepers. Natural England grants about 10,000 licences each year to control protected species, but it has never permitted a gamekeeper to control even one buzzard where serious damage was taking place. I sincerely hope the outcome of Mr McMorn’s case has changed that and I salute his courage and perseverance in seeing this through. I trust that wildlife licensing decisions will, in future, be made by Natural England fairly and on the facts, without fear or favour, whatever the job title of the person making the application or the species being applied for. The NGO remains willing to work with Natural England and Defra to ensure that outcome.”

Mr Waddell added: “This Judicial Review was never about changing the law – buzzards, although now very common, remain fully protected birds and the wildlife licensing system quite rightly has safeguards to ensure that there cannot be a ‘free-for-all’ against them. Rather, the case was about seeking the court’s view on whether the existing licensing system, available for the control of wild birds since 1981, was being fairly administered by Natural England. The court found that it was not. It is the right result, for individual justice and for the countryside.”

The NGO would like to thank all those who kindly made donations to the NGO Fighting Fund – Keeping Wildlife Licensing Fair in order to help underwrite the huge costs involved in bringing this groundbreaking case to the High Court. The fund remains open for donations from any organization or individual who appreciates the importance of what has been achieved.

Mr Justice Ouseley’s judgment of the case can be read in full by clicking here

You can read more about the background to the case by clicking here

Notes to Editors

The NGO represents the gamekeepers of England and Wales. It defends and promotes gamekeeping, gamekeepers and ensures high standards throughout the profession. It was founded in 1997 by a group of gamekeepers who felt that their profession was threatened by public misunderstanding and poor representation. The NGO has around 15,000 members.

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