Hen harrier brood meddling legal challenge: day 2

Day two of the legal challenge against Natural England’s decision to licence hen harrier brood meddling took place in the Royal Courts of Justice on Thurs 6th Dec 2018.

For those who don’t know what hen harrier brood meddling is, please see here.

For info about day one of this judicial review please see here.

As before, this is not a definitive nor detailed report – merely just a summary from an interested observer.

Day two opened with Mark Avery’s barrister, David Wolfe QC, continuing to present his arguments about why NE’s licensing decision was unlawful.

There was some complicated legal argument about the various subsections of Section 16 of the Wildlife & Countryside Act and whether the licence had been issued for ‘scientific, research or educational purposes’ (which is apparently what NE is claiming) or whether there was an underlying conservation purpose, which David Wolfe contends NE has admitted to in its evidence but which NE contests. The distinction is important because NE claims it was not required to consider ‘other satisfactory solutions‘ for preventing or discouraging the illegal persecution of hen harriers, and thus conserving hen harriers, as the Act requires.

David Wolfe argued that NE has “misdirected itself” as the so-called ‘research’ element of the licence cannot be separated from the ‘conservation’ element because the purpose of the brood meddling trial is to test a potential conservation measure (i.e. the attitudinal response of criminal grouse moor owners and criminal gamekeepers to having hen harriers removed and later returned) and isn’t just a research test for the sake of doing a research test.

And even if it was, the research would be “pointless” anyway because NE has accepted (via the HH Joint Action Plan) that brood meddling could only potentially be rolled out if the hen harrier population “had reached a density at which they would impact significantly on grouse numbers” – clearly, the current population size in England would need to increase significantly for those conditions to be met. Thus, David Wolfe argued that running the current brood meddling ‘trial’ was “pointless” because (a) it would be tested under very different conditions to those of a roll-out (i.e. there’d be a higher population of breeding hen harriers so the attitudinal response of criminal grouse moor owners and gamekeepers to the current trial may well be different if there are more hen harriers) and (b) NE has already admitted that the hen harrier population will not recover sufficiently to justify a full roll-out of brood meddling without further interventions [against the criminals on the grouse moors], and none of those further interventions have even been planned, let alone trialled.

Natural England’s failure to consider ‘other satisfactory options’ [to brood meddling], as required by law, was central to David Wolfe’s case. He argued that brood meddling was an “invasive and risky conservation measure“, which would otherwise be illegal given the hen harrier’s protected status under EU law, and that NE should have considered a long list of alternative, less-invasive options first.

He told the court that the Natural England Scientific Advisory Committee (NESAC) had discussed a proposal for hen harrier brood meddling in September 2015. At that meeting, the NESAC had heard a presentation from Dr Steve Redpath who had advised a number of alternative options for tackling the continued illegal persecution of hen harriers on driven grouse moors. In addition to brood meddling, the NESAC was told about various other available options such as licensing grouse shooting, increasing enforcement, banning grouse shooting, financial compensation and increasing grouse numbers. However, despite these alternatives (and others), in November 2015 the NE Board decided to proceed to explore the brood meddling option and specifically did not consider any of the proposed alternatives.

It was argued that further alternatives to those suggested by Steve Redpath were also available, as currently operating in Scotland, i.e. General Licence restrictions and vicarious liability. David Wolfe suggested these were obvious alternatives to consider, let alone trial, to tackling the underlying problem of criminality on grouse moors. We heard that NE has apparently cited “difficulties” in enforcing the law against the criminal grouse moor owners and gamekeepers and thus it being “of limited effectiveness” as a hen harrier conservation measure (according to NE). David Wolfe was clear that under the Birds Directive, the UK authorities have a statutory duty to protect this species and for NE to simply say ‘it’s too difficult to enforce the law’ without demonstrating they’ve taken all reasonable measures to remove the incentive to kill hen harriers is insufficient to justify the derogation to permit brood meddling because then the illegal actions of the grouse moor owners and gamekeepers become ‘tolerated’ rather than criminalised.

[Mark Avery with his legal team outside the court at the end of day one. L-R: Lewis Hadler, Tessa Gregory, David Wolfe QC, Zoe Leventhal, Mark Avery. Photo by Ruth Tingay]

On the afternoon of day two barrister Paul Luckhurst opened the case for Natural England. We’re not going to comment on his arguments at this stage because the case will continue, unexpectedly, for at least a third day (next court date: 17 January 2019) and so the main substance of his arguments will be heard (and reported) then.

However, there was one point he made that raised eyebrows in the court and deserves a mention here:

In response to the RSPB’s claim that diversionary feeding was a low impact alternative to brood meddling that has been proven to reduce grouse predation and thus conflict, Paul Luckhurst argued that one reason why diversionary feeding hadn’t been taken up by grouse moor managers was because ‘it attracts too many predators’. However, a recent peer-reviewed scientific publication does not support this claim.

From Ludwig et al (2018) which reports on diversionary feeding of hen harriers at the Langholm study:

As hen harriers defend the immediate surroundings of their nest (Hardey et al. 2013), scavenging by other species, largely Ravens, was infrequent and almost entirely after fledging. Observations in previous years indicated occasional visits by Carrion Crows, Rooks and Short-eared Owls, while mammalian predators, gulls or other raptors were not observed‘.

Presumably the lawyers for the RSPB and Mark Avery will argue this point when they are given the opportunity to respond to Natural England’s arguments at the next court hearing in January.

UPDATE: 13/12/18 Countryside Alliance and GWCT comment on hen harrier brood meddling legal challenge (here)


11 Responses to “Hen harrier brood meddling legal challenge: day 2”

  1. 1 Graham Barlow
    December 12, 2018 at 8:09 pm

    Very informative, thank you.

  2. 2 Alan Cranston
    December 12, 2018 at 8:18 pm

    Many thanks. Fingers crossed. As it happens, I think the “complicated legal argument about the various subsections of Section 16 of the Wildlife & Countryside Act” are of the essence. And it is indeed complicated, though the one sure thing is that NE can only do what the statute allows them to do, and subject to the exact terms of the statute. Hopefully the judge will decide that as regards 16 (1)(a) or (c) or a Twenty Questions variant of one with shades of the other, NE got their law wrong whatever. That seems self evident to me, hopefully to the judge too.

    Feel free to decline or edit this if it is too specific for a case in progress.

  3. 3 Gerard
    December 13, 2018 at 12:14 am

    NE are and have been clearly failing in their statutory duty according to EU birds directive all along.

  4. 5 Steve
    December 13, 2018 at 1:19 am

    It’s fabulous to read these updates and I wish Mark and the team all the very best.

    I do wonder, though, if the section on Luckhursts’ case might have been better left out – it may be great for us to read but will likely give his team notice that they’ve messed up, something they may now be prepared for in January? Just a thought.

    • December 13, 2018 at 11:56 am

      Not necessarily, Steve. Mr Luckhurst’s claim was included in his written argument as well as presented verbally in court so it is already on record. Ms Justice Lang was assiduous in following every single point made in court (by both sides) and questioned everything to assure herself she had understood each point. Her diligence is probably why the case has extended to a third day.

      Mr Luckhurst/NE may well have evidence that DF attracts “too many” predators, in which case he’ll presumably present that to the court in Jan. It would be important for us all to see such evidence, if it exists, rather than ignore it. If he doesn’t have any such evidence, and accepts the findings of the Ludwig et al paper, then it simply undermines his/Natural England’s argument.

      • 7 Les Wallace
        December 14, 2018 at 11:52 am

        This is where the ‘Understanding Predation’ approach they’ve tried to sell us could serve its intended function – the research doesn’t match what the estates and keepers say so it must be flawed!

  5. 8 Les Wallace
    December 13, 2018 at 1:54 am

    That’s very interesting about the claims diversionary feeding brings other predators in. I remember a certain ex gamekeeper and his acolytes discussing this on social a while back and saying that other predators were having a bit of a feast at diversionary feeding posts on Langholm, they certainly mentioned short eared owls. Sounded like a convenient old wives tale created for the occasion, so glad the research shows it’s pish. What were the chances that these rabid predator haters were ever going to actually feed one of them in any circumstances? As much chance as getting a Scottish gamekeeper to admit that they were wrong when they claimed the returning pine marten would devastate red squirrel populations. Common sense said that was bollocks, experience has shown the opposite is true the reds are bouncing back with the martens. Hating predators just for the sake of it is part and parcel of this ‘culture’, utterly integral to it.

  6. 9 Francis Morgan
    December 13, 2018 at 9:30 am

    I’ve said it before, but I’ll say it again, because I’m shocked again every time I read about it. It is incredible that the statutory agency for nature conservation should be granting itself a licence to interfere with a protected species for the sole purpose of assuaging criminals. And that it should say explicitly that that is what its doing! I’m still gob-smacked. Like the Bank of England leaving boxes of bank notes outside all the major banks in the hopes of reducing conflict between banks and bank robbers under a tax-payer funded scheme. Could this happen anywhere but England?

    • December 14, 2018 at 2:34 pm

      Francis, unfortunately it’s not the only recent incident of this occurrence. The scales of justice have been weighted so as to make it impossible for any conservation measure or judicial decision to be applied in an unbiased fashion. No part of the United Kingdom is immune from such interference.

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