Buzzards should not be protected any more than herring gulls and cormorants: High Court

14 November 2015 by Rosalind English

McMorn (R, on the application of) v Natural England [2015] EWHC 3297 (Admin) – read judgment

Public opinion regarding raptors and pheasant shoots should not influence the authorisation of buzzard control, the Administrative Court has ruled. Any derogations to the EU protection of wild birds should apply equally across wild avian species, irrespective of their popularity.

This was a gamekeeper’s challenge to the refusal by the defendant statutory body (Natural England) to grant him a licence under the Wildlife and Countryside Act 1981 to kill buzzards which he said were destroying such high numbers of game birds as to render his shoot unviable.

At the heart of the claimant’s challenge was his contention that NE treated raptors differently from other wild birds, making it far harder, well-nigh if not quite impossible, for anyone to meet the statutory conditions for the issue of a licence.
He maintained the defendant treated these licence applications differently because of the public controversy which the grant of a licence for the killing of buzzards would engender. This was because of perceived adverse public opinion about the protection of a pheasant shoot. Hence, the decision was based on unjustified inconsistencies in NE’s treatment of raptor and other birds equally protected under the law. 

Legal background

The common buzzard, though protected under the 1981 Act, may be killed under licence if certain statutory tests are satisfied. The Act implements into domestic law the provisions of the Birds Directive, 2009/147/EC, which contains a general prohibition on the capture or killing of wild birds, the deliberate destruction or damaging of their nests or eggs and the deliberate disturbance of the birds especially during breeding or rearing.

An important derogation to this prohibition is to prevent damage to livestock. It is a preventative provision which does not require actual damage to have happened. “Livestock” includes any animal kept, as were the pheasant poults here, “for the provision or improvement of shooting or fishing”.

Under an agreement with DEFRA, NE has the power to perform the function of wildlife licensing. This agreement makes no reference to a distinction between a policy function and the decision-making function exercised by NE, although in the judge’s words,

DEFRA and NE however appear to have accepted such a distinction and [hence] the policy-making function was retained by DEFRA, while the decision-making function was performed by NE, in accordance with that policy. In relation to licences to kill or capture common buzzards, or other birds of prey, this has been a point of friction, unhelpful to NE … in explaining some of its actions.

DEFRA’s  “wildlife management policy” of May 2011 sets out four non-exhaustive situations in which wildlife management is necessary:

(a) very rare or endangered species, (this does not include the common buzzard);

(b) other protected species, including the common buzzard;

(c) invasive non-native species e.g. grey squirrels and

(d) other native wildlife, e.g. foxes and rats.

There is no specific policy for birds of prey, other than (b), since they are wild birds and so protected by the Wildlife and Countryside Act. Although all birds and some other species such as badgers are legally protected against indiscriminate killing or disruption, not all are endangered. Under the DEFRA policy, non-lethal methods of controlling wildlife are preferred when there is a conflict with human interests.

In this case, the licence had been refused on the grounds that some alternative non-lethal methods had not been tried.

Factual background

The claimant was concerned with buzzard predation of poults (young pheasants) both in and out of their pens, and the fact that buzzard and sparrow hawk had been causing distress at the pens. There was at least one active buzzard nest located at each of his pens. He had seen buzzard and sparrowhawk take poults from in and outside the pens; he had some predated poult carcasses.   Adult buzzards took poults for food for themselves and juvenile buzzards were taught and practised killing.

Alternative methods of control such as gas guns, scarecrows and flashing lights and/or hanging CDs had proved ineffective as the buzzards had become accustomed to them. The only effective solution – human presence – was unrealistic as the claimant ran the deterrent work on his own and employing someone else to do it would have been economically unviable.

NE’s assessor accepted this evidence but concluded that other measures could be taken before a licence could be issued, such as diversionary feeding of the buzzards. As this was a novel application for a licence to shoot, NE said, it could set a precedent. There were policy considerations:

Scottish ministers had decided that “for the present time the balance of public interest was not in favour of issuing licences for the control of birds of prey to protect reared game-birds”. The RSPB was taking a keen interest. There was no specific policy guidance. The overall policy guidance set no criteria for such licence applications, nor thresholds of seriousness of livestock damage to be shown or guidance as to the nature of the evidence required for a licence to be granted.

Most significantly, “there was no species specific policy guidance on a controversial issue involving the shooting of birds of prey, even more so to protect non-indigenous game-birds reared for shooting. ”

The claimant pointed out that licences to kill buzzards were not being issued while licences to kill gull species, some of which were a conservation concern, were routinely issued. If there were to be a policy presumption against licensing the killing of raptors to protect game birds, NE ought to be clear about that. The “unstated policy” was adopted, it was argued, in response to

a perceived public antipathy to killing raptors for the protection of game birds, and the more so for the protection of exotic game birds, kept for shoots

in spite of the fact that  there were no “ legal, ecological or conservation justification for the different treatment of gulls/corvids and common raptors”.

It was argued on behalf of NE that it was doing no more than exercising DEFRA’s policy, and, as an expert body with specialist knowledge, it should be allowed to exercise its judgment without interference by the courts. For example, DEFRA had wanted licences to be refused on the grounds such as lack of evidence and failure to use alternative methods, so as to “put off the day when a raptor policy was required”. NE had argued that a specific policy could not be strongly based on conservation and ecology alone, but should be justified on the basis of public views, past persecution and controlling native species to protect non-native species to be released for shooting, but DEFRA “was nervous about using any argument based on public views”.  This created a situation where

no evidence was required for the grant of licences for lethal measures in respect of carrion crows and magpies; herring gulls and herons required the presentation of a credible case that serious damage could occur; but for species like buzzards the threshold was “extremely high”.

The court decided that the decision should be quashed.

Reasoning behind the decision

Ouseley J was “struck by NE’s emphasis on DEFRA policy and its lack of emphasis on the law.” The policy behind the Birds Directive, and the WCA which implemented it, was to permit derogations from its general prohibition on killing or capturing wild birds. But where the derogations were adopted, they must be given effect according to their terms. These terms struck a balance between the protection of wild birds and the interests which they may threaten, such as damage to livestock.

Neither the Directive nor the WCA provides any specific protection or status for raptors or buzzards, nor does it treat game birds and other livestock differently. The provisions made for the protection of certain species do not apply to the common buzzard.

The Directive did not require that serious damage to livestock had already occurred, and in requiring such a high threshold of evidence from the applicant, NE had gone beyond the terms of the Directive and the WCA.  There was no power, on some discretionary basis, to treat one common species causing serious damage differently from another common species causing serious damage.

At times, NE’s approach appeared to be that it was simply exercising a straightforward and wholly domestic executive discretion. That is not the nature of its power.

Comment

Like all wildlife legislation, the Birds Directive reflects the political and cultural attitudes prevailing at the time of their inception. It is no accident that birds – at least wild birds – were the first of non-human species to attract the interest of EU legislators: they are overhead, therefore visible and viscerally unthreatening (leaving aside this summer’s silly season story about seagulls). The fact is that any wildlife protection measure with its accompanying derogations will be replete with inconsistencies; this is no more than a reflection of why it is on the statute book in the first place. There is nothing hard-edged about it, whether it is part of EU or domestic law. The very favouring of avian over other indigenous species is a reflection of the “vague” “cultural and political considerations” at issue in this case.

So whilst it is true that the Birds Directive gives  no general discretion to member states to add further categories or degrees of derogation from its protection, it is hard to see why, in Ouseley J’s words, this

would be to introduce an impermissible further derogation, or one which nullified in whole or part the existing derogations.

It’s certainly true that DEFRA would have acted unlawfully if it were, on “political and cultural” grounds, to adopt a policy which made licensing the shooting of raptors or the shooting of raptors to protect game birds more difficult than for other birds covered by the same derogation. But is it an accurate reflection of EU law to say that Member States are not at liberty to adopt a higher level of protection for environmental interests, such as those arguably covered by the Birds Directives?

Article 192 TFEU encapsulates the EU principle of preserving and protecting the quality of the environment. Under Article 193, the Treaty says that environmental measures shall not prevent any member state from “maintaining or introducing more stringent protective measures”. If that is the case, it is at least arguable that a public authority such as NE may lawfully apply a different approach to raptor applications from those applied to other species of birds, in different circumstances.

Species do not regard borders, and therefore it is impracticable to expect that laws protecting them are uniformly applied.  It is broadly accepted that the Wildlife and Country Act aims primarily to protect, not species, but subspecies, and possibly in some situations, individual birds.  As NE argued,

species differ in their life span, breeding habits, including ease of breeding, feeding habits, and responsiveness to various deterrents. Differences in the circumstances of species, and the reasons and evidence supporting the general licences and individual applications, justified the difference in approach.

It may be the case, as the judge concludes, that “seen as individual birds or species, the contrast between the grant to the Claimant of licences to shoot herring and greater black-blacked gull and the refusal of the buzzard applications lacks lawful and rational justification”. But the claimant is not the target of the legislation either in its EU or domestic form: the bird is. The entire package of environmental protection rests on shaky ground, if judged from the point of view of persons affected.

The judge decided that the differences between buzzards and other species did not justify the difference in the application of policy. Perhaps a more nuanced approach would have been to accept as evidence the justifications advanced by NE since the very difficulty this statutory body faces when dealing with very different types of wildlife means that it is not applying the law in like situations.

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