Legal challenge against hen harrier brood meddling reaches the High Court

Press release from law firm Leigh Day (4 Dec 2018)

Campaign to protect endangered hen harriers to be heard in High Court

The High Court will hear a legal challenge to the brood management of endangered hen harriers on Wednesday 5th and Thursday 6th December 2018.

Leading conservationist Mark Avery, represented by law firm Leigh Day, is bringing the judicial review challenge against Natural England’s decision to grant a licence to allow brood management of the birds. The RSPB have also brought a separate judicial review against the decision.

In January 2018 Natural England granted a two-year licence to trial the brood management of hen harriers – one of the rarest birds in England that has the highest possible conservation status for a wild bird and is a protected species under the EU Birds Directive. Brood management involves authorising what is otherwise a criminal offence – the removal of the eggs or chicks of hen harriers from their nests. Under the proposed licences the young birds are reared in captivity before they are reintroduced into the wild.

[Photo by Laurie Campbell]

Campaigners argue that the plan places the precarious English population of hen harriers at further significant risk and fails to address what all agree is the root cause of the hen harrier’s decline, illegal persecution on grouse moors where the bird of prey is known to kill red grouse.  Critics are concerned that the plan will do nothing to boost the hen harrier population and only serves to placate grouse moor owners and the grouse shooting industry. The ongoing problem of the persecution of hen harriers is tragically highlighted by five birds already having been reported missing on or near land managed for grouse shooting in the north of England.  Studies have shown that England should be able to support around 300 hen harrier pairs. But this year (which was a relatively successful year due to high vole numbers which is a main prey species for hen harriers) only 34 chicks fledged from nine English nests, according to a report by Natural England and in 2017 there were only 10 chicks in the whole of England.

Natural England’s stated rationale for the trial is to see whether brood management “could reduce the perceived conflict between hen harriers and grouse management” and thereby lead to fewer attempts to kill hen harriers illegally.

In his legal case Dr Avery argues that Natural England’s decision to grant the licence was unlawful as there were alternative satisfactory solutions available which under the EU Birds Directive had to be considered before Natural England could decide to authorise the taking of eggs and the disturbing of a hen harrier’s nest which is ordinarily a criminal offence. He will argue that the alternative solutions that Natural England should have considered include: licensing grouse shooting; increasing criminal enforcement, introducing vicarious liability for wildlife crime (as recently adopted in Scotland) and considering banning grouse shooting altogether.

Mark Avery said: “The fragile hen harrier population must be protected and allowed to thrive in its natural habitat. It is incredibly sad that Natural England seems to be more interested in serving the grouse shooting industry than the wellbeing of these magnificent birds. In Scotland a range of measures are being pursued which if implemented well and with vigour stand a good chance of making a significant difference, yet in England where the numbers of hen harrier are far fewer the Government has ignored the measures being taken north of the border and chosen to waste its time and money on brood meddling

Tessa Gregory, partner at law firm Leigh Day, added: “Our client believes that there were many alternatives to be considered before deciding on the damaging and pointless measure of allowing brood management of these endangered birds. It is time for the Government to start tackling the real issue: illegal persecution by the grouse shooting industry. Our client has demonstrated that there are many other measures which could be taken that would serve to protect the hen harrier and address criminality in the grouse shooting industry. We hope that the court will agree with our legal arguments and quash Natural England’s decision to allow brood management of hen harriers.”



12 Responses to “Legal challenge against hen harrier brood meddling reaches the High Court”

  1. December 5, 2018 at 8:42 am

    Fingers crossed that reason shall prevail.

  2. 3 Paul V Irving
    December 5, 2018 at 9:33 am

    if this challenge by both Mark and RSPB fails then the lunatics will really be in charge of the conservation and protection of our magnificent Hen Harriers. What next crofters in charge of WTE conservation. reason and common sense must prevail.

    • December 5, 2018 at 10:28 am

      It’s fairly obvious that the lunatics are already in charge of the asylum, aren’t they?
      It is not beyond the realms of possibility that the malaise affecting NE already having spread North to the SNH, the malaise that infects out judicial system in Scotland may yet spread South to England. After all, NE are tasked with issuing licences; it may be deemed that they have the right to make unlawful decisions, although it may not be expressed in that way in the judgement.

  3. 5 Peter Shearer
    December 5, 2018 at 11:16 am

    Well we need to wait, but if it does fail then there is even more for us to fight than we thought.Let’s hope it is a good result.

  4. 6 Duncan
    December 5, 2018 at 12:05 pm

    I’ve said it before and I’ll say it again, ‘Natural England’ should be renamed ‘Unnatural England’.

  5. 7 Roderick Leslie
    December 5, 2018 at 2:13 pm

    Good luck, Mark !!

    There isn’t a perceived conflict in England. they’ve all been shot. Where are they going to get English hen harrier eggs from anyway ? Not, I think, the Forestry Commission which has raised more HH in England than anyone else in recent years – FC has a fantastic record of protecting otherwise persecuted raptors, something that is personal to many people working for it. Fortunately the backlash from the sales fiasco in 2011 means Conservative Ministers will think twice before trying to put any pressure on FC – rightly as the reaction to any attempt to force Fc to give up HH eggs would be explosive.

    • 8 Paul V Irving
      December 5, 2018 at 4:21 pm

      Indeed Roderick, it is a great credit to both the FC in general, the staff involved and volunteers. It is also quite clear that United Utilities will not be playing ball with brood meddling either. However if this falls virtually any and all nests on private estates in Bowland could be meddled with if harriers nest where they usually do on the UU Bowland estate. It would be interesting to see what would happen if birds nested on both the UU estate and a National Trust holding in the Peak district also.
      One of my many bug bears with BM is that it seems to override SPA designation figures for harriers in both the North Pennine and Bowland SPAs. If the case is lost without this being used as an argument perhaps we should be going to Europe if BM is a prospect when the designated populations in SPAs has not been reached. Its also quite clear that the prospect of BM on any grouse moor estates has as yet and thus probably never will make any difference to the amount of non breeding season ( and breeding season?) killing.

  6. 9 Barney
    December 5, 2018 at 8:17 pm

    Brood management will not help the harriers at all and that is why the criminals have accepted it, I bet they couldn’t believe their luck when some brain dead fool from natural England came up with the idea. No we should licence grouse shooting, introduce vicarious liability and then kick the arse holes in the teeth and ban it.

  7. 10 Iain Burt
    December 5, 2018 at 8:43 pm

    Message I sent to SNH follows, with the reply: I read this article recently – what is your response? 🙂https://raptorpersecutionscotland.wordpress.com/2018/08/21/snh-wilfully-blind-to-threat-of-persecution-of-golden-eagles-in-south-scotland/

    SNH wilfully blind to threat of persecution of golden eagles in south Scotland
    The project to translocate golden eagles from the Scottish Highlands to south Scotland has finally got underway this year, with news out today that three eagles have been successfully released this…

    Hi Iain, Thanks for your message. The partnership behind the South Scotland Golden Eagle Partnership has worked hard to minimise the risk to golden eagles, involving our project team, local estates, police and communities.

    Everyone involved in the South of Scotland Golden Eagle Project is strongly committed to the aim of restoring the golden eagle to its former haunts across the Southern uplands. We have attached satellite tags to each of three released birds and made it clear that these birds will be monitored very closely and carefully, with steps taken immediately to follow up on any suspicious malfunctioning of satellite tags/downed birds suggesting danger.

    We have formed a partnership which involves land owner and land manager bodies and conservation bodies. There have been careful discussions to ensure the aims and practices of the work are fully understood, with risks of failure to illegal persecution made very clear.

    So far, all three released birds are faring well, and there is a heartening and growing interest in the birds among the school and local communities.

    You can find regular updates on the project blog at https://www.goldeneaglessouthofscotland.co.uk/blog

    Kind regards, SNH
    Blog | South of Scotland Golden Eagle Project
    View our latest blog posts

  8. 11 Iain Gibson
    December 6, 2018 at 6:52 am

    My preferred alternative to the unpredictable measure of brood meddling is an end to the leisure time hobby of grouse shooting, which I would categorise as a form of trophy hunting, differing only in scale of bag rather than size, or rarity, of the beast slaughtered. The vast majority of most gamekeepers and many (if not most) grouse-shooters to my knowledge, celebrate the death of every single harrier, and are proud to be maintaining harriers at as low a population level that they can deliver. These people occupy a different planet to most well-balanced individuals, just like fox hunters but less conspicuous. How could we possibly police the illegal ‘sideline’ of continued persecution of harriers on grouse moors, when our UK Government can’t even provide the authorities with sufficient police staffing to tackle the growth of juvenile knife crime in the City of London? How could we cope with the inevitable response by the guilty parties, to commence shooting the introduced ‘farmland’ harriers, on the basis that their reproductive capacity poses a threat of the progeny spreading onto English grouse moors? That may be an unlikely scenario, as it is hard to believe that the ‘reintroduction’ to farmland will succeed anyway. However it would seem credible that any harriers that do wander widely in search of a decent natural prey supply, as are known to settle on grouse moors which are concurrently holding high field vole numbers, are under continuous threat. For those birds, an ugly and cruel death by the keeper’s gun is almost a near certainty. This would surely also apply to new ‘lowland’ harriers which happen to include a pheasant shooting estate on their winter territory? The only conceivable ‘hard grexit’ to this problem that I can imagine is the combined designation of all grouse moors to national or regional Nature Reserves, ban ALL hunting and turn them into naturally managed features, for the protection of wildlife and the pleasure of all the UK citizens and tourists to our beautiful landscapes. These would have to carefully planned to avoid disturbance to sensitive wildlife, including breeding harriers, as was done for a short experimental period in at least one Scottish Regional Park holding up to 14 pairs.

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