Relocating hen harrier chicks to spare grouse for the gun

22 November 2021 by Rosalind English

On the one hand, there are raptors. On the other there are game birds. The former are highly protected under statute. The latter bring in serious revenues to rural businesses for shoots. Hen Harriers (image right) are dependent on, amongst other things, the protein from grouse chicks for their young.

On the cuteness scale, I know who wins, wings down.

But here we have it. The voracious teenagers that you see in the first paragraph are the protected species. The fluffy number in image 2 is a designated target for paying hunters, as well as mother hen harriers.

And now we move on to the law.

RSPB, R (On the application of) v Natural England  [2021] EWCA Civ 1637 (9 November 2021)

This case was an appeal by the RSPB and Dr Mark Avery, a scientist specialising in nature conservation, against a ruling by the court below that the grant of a licence by the respondent, Natural England (NE), to “take and disturb” hen harriers from the Northern English uplands for scientific, research or educational purposes pursuant to the Wildlife and Countryside Act 1981 Pt I s.16(1)(a) was lawful.

Background law and facts

Under Article 4 of Directive 2009/147 on the conservation of wild birds, EU Member States are required to designate special protection areas (SPAs) for their conservation. There are two such SPAs in England. 

Under this network of rules it is a criminal offence to disturb these protected birds. Nevertheless they have been persecuted: killing and nest destruction by contractors employed to maximise the number of grouse available for shooting in the autumn. 

In an effort to resolve the impasse between conservationists and landowners running shoots, NE in 2015 recommended piloting a “brood management scheme”, whereby eggs and chicks would be removed from the parental hen harrier nests, reared in captivity and then released when they were fully fledged into a suitable habitat, away from the grouse moors. NE duly received a licence application in 2017, on which they carried out a Habitats Regulations Assessment pursuant to Regulation 63 of the Conservation of Habitats and Species Regulations 2017. This report did turn up a potential decrease in breeding and juvenile survival as the principal risk of the trial and suggested potential mitigation. Apparently no such mitigation was available. So the NE completed a Technical Assessment and concluded that there was no satisfactory alternative to the proposed scientific trial.

The first licence for relocation of eggs and chicks was granted in January 2018. 

The RSPB and Dr Avery challenged this by way of judicial review. They argued that NE had erred in considering the application only in terms of research under s.16(1)(a) of the Act, thereby failing to consider the purpose of conserving hen harriers under s.16(1)(c) [my italics]. They submitted that NE should have considered whether there were satisfactory alternatives to brood management as a conservation technique, pursuant to the requirement in Section 16(1) (a), not merely whether there was a satisfactory alternative to undertaking the trial. In the Divisional Court Lang J held that s.16(1A)(a) and s.16(1)(a) only required NE to consider whether there were other satisfactory solutions to the s.16(1)(a) scientific purpose and that it had acted lawfully in granting the licence. She did not think that Natural England was acting to protect the grouse moor industry over hen harriers. Instead, she reached her conclusion on the basis that NE was entitled, in the light of the Habitats Regulations Assessment, to find that the scientific trial would not adversely affect the integrity of the two SPAs.

In their grounds of appeal the appellants submitted that Lang J had been wrong to look narrowly at the research element whilst ignoring the ultimate aim of the trial, namely to conserve hen harriers, and that she should have read s.16(1) of the Act in the light of Article 9 of the Directive, under which, “no other satisfactory solution” referenced the broader objective of the Directive, not just the specific derogation. They also maintained that the decision was incompatible with the purpose of s.16(1) and s.16(A1), which was to criminalise and prevent the persecution of hen harriers.

The Court of Appeal dismissed RSPB’s appeal.

Reasoning behind the Court’s decision

Lang J had been correct to find that NE had properly considered the application as one for permission to carry out a research project within s.16(1)(a), rather than a conservation project under s.16(1)(c). The wording of both provisions in the Act was clear. The “purpose” in respect of which the “other satisfactory solutions” had to be considered was the specific purpose for which the licence was sought. The language of Article 9 of the Directive was less precise, but the effect was intended to be the same as that implemented by s.16(1). The purpose of conducting the research had to be considered separately from the broad objective of the Directive and the Act. NE was not at liberty to disregard the overall purpose of the legislation when deciding whether to grant a licence; it had to consider not only whether there was any other satisfactory way of doing the research which did not derogate (or derogated less) from the prohibitions in the Act, but also exercise its discretion rationally [paras 50-56].

But it had acted lawfully in granting a licence for scientific, research or educational purposes, pursuant to the Wildlife and Countryside Act 1981 Pt I s.16(1)(a), for a research project into the brood management of a rare protected bird species (hen harriers) on English grouse moors, which involved removing eggs and chicks from nests, rearing them in captivity, and releasing them into a suitable habitat away from grouse moors. The requirement in s.16(1A) to consider “other satisfactory solutions” referred to the specific purpose for which the licence was sought and that purpose had to be considered separately from the broad objective of the Act and Directive 2009/147.

Brood management in SPAs was not designed to displace hen harriers from their natural habitat, but to reduce their persecution and increase their population. Brood management was not contrary to the integrity of SPAs and it was not unlawful. In any event, the trial was temporary and highly unlikely to involve many interventions in SPAs. The Habitats Regulations Assessment had been appropriate and had reached lawful conclusions.