The NGO has submitted the following evidence to the Secretary of State on General Licences.

Summary

The National Gamekeepers’ Organisation explains what has gone wrong with General Licensing and how the Secretary of State can issue simple, pragmatic licences to re-start bird control immediately.

Introduction

The National Gamekeepers’ Organisation (NGO) has 12,000 members and represents gamekeepers throughout England and Wales. Our members are a principal user-group of General Licences (GLs).

The sudden revocation of GLs 04, 05 and 06 by Natural England (NE) on 25/4/19 has caused huge problems for the gamekeeping sector. Spring is the key time for protecting gamebird nests from predation, and also guarding growing crops from pigeon damage. Our members have had to stand idly by and watch as crows and magpies destroy not only their precious gamebird nests but also the eggs and chicks of rare and threatened waders such as curlew and lapwing.

NE’s three ‘replacement’ General Licences issued so far are completely unfit for purpose (see Appendices 1 and 2) and only relate to a fraction of the necessary species and licensing purposes.

NE’s interim Individual Licensing scheme has also proved a disaster; late, dysfunctional and legally chaotic.

Communication about the changes made by NE has been dreadful and at times wilfully misleading, implying that there have only been minor tweaks when in fact there have been multiple changes of great legal significance to licence users.

Documents released on Friday (10 May) by Wild Justice now reveal that the threat of legal challenge was limited to a single ground only which could easily have been addressed by NE in other ways. Instead, NE just caved in before court action had even begun, making control of problem birds unlawful for the first time in history and precipitating a rural crisis. Even Wild Justice was astonished, not least as it had never called for GLs 04, 05, and 06 to be revoked.

This has been an altogether disastrous episode. We now look to the Secretary of State to sort it out.

 

The Underlying Problem

General Licences were introduced in the UK in 1992 to head off a threat of EC infraction proceedings because Schedule 2, Part II of the Wildlife and Countryside Act 1981 (WCA) was not compliant with Articles 7 and 9 of the EC Birds Directive 1979.

The Minister at the time, Lord Strathclyde, told a meeting of the farming, pest control and countryside organisations on 14/9/92 that introducing General Licences was merely a procedural device to make the UK compliant with the Birds Directive. He told the meeting (and the press subsequently) that, “Everything can carry on exactly as before.”

For a time it did. Schedule 2 (II) was deleted from the WCA and Ministers instead issued annual General Licences under Section 16 which allowed authorised persons to control the problem birds.

These early licences were very simple. They said:

The Minister [sometimes MAFF, sometimes DOE, depending on the purpose of the licence], in exercise of the power conferred by Section 16(1) (j) and (k) WCA, and being satisfied there is no other satisfactory solution, hereby authorises, for the purpose of [allowable purposes were listed] any authorised person to kill or take in England the following birds [which were then listed] by shooting, cage trap, net or any other method not prohibited by Section 5 WCA.”

There were then a few reasonable conditions appended but that was it, in under two sides of A4. Control of problematic birds continued as before and there were no issues or challenges.

Responsibility for issuing the licences remained with Government until the mid-2000s. Although the relevant ministries changed in name and function a few times, the format of the licences hardly altered. Then, in 2007, the task of issuing licences was given to NE. Look what happened next:

Increasing Complexity of General Licences

       

Year

Length in pages

 

Issued by

1992

2

 

MAFF/DOE

1995

2

 

MAFF/DERA

2000

2

 

DEFRA

2005

2

 

DEFRA

2010

5

 

NE

2015

5

 

NE

2019

11*

 

NE

*11 pages, that is, for each and every species and licensing purpose

As soon as NE took over, the General Licences went from being 2 pages to 5. The difference was accounted for by an increasing number of conditions, restrictions and definitions. “Serious damage”, for example, NE now defines as excluding ‘normal business risk.’ In the case of gamebirds, NE says you have to lose more than half your pheasants or partridges before you can rely on a licence

What led to NE shunning the erstwhile pragmatic approach of the Ministries, replacing it instead with such restrictions and over-complications?

One clue is contained in a letter that NE sent out to stakeholders as it was preparing to take over licensing in 2007. It spoke of using the General Licences, “to deliver NE’s strategic objectives,” and to gain, “outcomes NE wishes to achieve.” This wasn’t administering a simple licensing scheme on behalf of Government, it was rule by Quango.

Another continual factor driving over-complication has been NE’s highly risk-averse approach. Every court judgement, here or in Europe, that could possibly have a bearing on the licences has been used as a reason to add yet more conditions.

What happened last month is a prime example, except there wasn’t even a court judgement. NE revoked GLs 04, 05 and 06 at the first threat of possible legal action. It did not stand and defend its licences, or change them slightly – which it could easily have done to meet the one point at issue - it instead revoked them without warning and started issuing replacements over twice as long and with so many new legal requirements as to make them completely unworkable (see Appendices 1 and 2).

The one point of challenge in the threatened Judicial Review was simply that GLs 04, 05 and 06, did not include the old wording saying the Minister was “satisfied there was no other satisfactory solution.” Nor, it turns out, had NE carried out the biannual assessments that the Civil Servants did before 2007 in order to justify their Ministers being so satisfied.

NE could have responded to the threat of legal action either by arguing that the licences could only have been issued under WCA because the Minister was satisfied there was no alternative; that their very existence proved the point. Or it could have simply re-issued them with the old wording included to make the matter clear.

Instead, NE revoked the General Licences to cover its own back, turning a minor problem into a crisis and passing the buck to the wildlife managers who strive to maintain balance in our countryside.

 

Necessity for General Licences

Other organisations have submitted evidence about the necessity for General Licences, so we will keep our remarks on this brief.

There is a wealth of published scientific research evidencing the damage cause by species such as crows, magpies and woodpigeons. In particular we refer you to the submission of the Game and Wildlife Conservation Trust concerning the impacts of corvids on gamebirds and waders. Whilst for impacts caused by woodpigeons, we commend the submission of the British Association for Shooting and Conservation.

The gamekeepers’ perspective on this is anecdotal rather than scientific – but no less valid for that. Those whose work is looking after ground-nesting gamebirds and the rare wildlife that shares their habitat observe at first hand the damage that corvids do. Pigeon shooters who see the extraordinary quantities of grain and rape leaves in the birds they shoot know the huge impact pigeons have on arable farming and vegetable growing, without the need for science.

So these birds have to be controlled. Doing so is hard graft and is the primary role of wild bird gamekeepers in spring. Quite simply, they wouldn’t do it were it not an absolute necessity and the individual submissions you have had from many such individuals will more than bear this out.

You ask about alternatives to lethal control. They rarely work. Corvids in particular are intelligent birds and rapidly learn to distinguish harmless scaring from lethal shooting.

It is also a fact that successive UK governments and their licensing authorities since 1992 could not have issued any GLs were they not satisfied there was no other satisfactory (ie. non lethal) solution to the damage the licences gave permission to prevent. The very existence of the licences, going back 27 years and covering all the home nations, proves the necessity of lethal control.

EU legislators well-understood, too, that pest birds needed lethal control when they included Articles 7 and 9 in the Birds Directive to permit it. Yes, they set down in the Directive some simple principles for how the job must be done – and these were correctly incorporated in the WCA and in those very simple early General Licences, never contested by the Commission. But NE’s latest 11-page licences, with different and highly restrictive rules for each and every species and licensing purpose, are a mile away from what the law requires. They are also far more detailed than anything applied by any other Member State of the EU.

 

What should new licences look like?

We therefore urge the Secretary of State to issue new licences and this is what they should look like:

They must conform to the Birds Directive and WCA of course, just as those early General Licences did, but they must be as simple to use and easy to understand as possible.

The burden of being satisfied that there is no other satisfactory solution must revert to Government, as the law requires, and not be foisted on the licence user, as it has been by NE.

The EU and UK licensing framework exists “to prevent serious damage” (to crops and livestock) and the licences should not require that serious damage has already occurred.

There should be no requirement for the licence user to attempt non lethal methods or to show why they wouldn’t work. The Government will already have established that by virtue of issuing the licence, accepting thereby that no other satisfactory solution exists.

Other issues which are already covered in their own specific legislation (eg. what may or may not be done on protected sites such as SSSIs) do not need to be repeated, let alone contradicted, in the GLs.

Your call for evidence asks if there were problems caused by the three revoked General Licences which could be addressed by adding more conditions. Wrong approach! The aim must be to simplify the licences once more, not to add yet more conditions and complications.

The pragmatic, Ministerial approach to General Licences worked perfectly well in the past. The parent legislation that allowed it (EU and UK) has not changed. It was never challenged in law. The same, simple, pragmatic approach can work again now.

As Secretary of State, we urge you to issue such licences covering all the former species and licensing purposes. It can be done with a few sides of paper, as it always used to be. Every day lost to the ongoing crisis sees more gamebirds, wildlife, crops and livestock damaged by these very common problematic birds.

National Gamekeepers’ Organisation 13 May 2019

 

To read the Appendices 1 & 2 please click on the following link:  NGO Evidence Appendices 1 and 2.pdf

 

 

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