Scottish Natural Heritage (“SNH”) announced on 21 May 2019 that they will hold a 12 week consultation about General Licences later this year, seeking stakeholders’ views on current operation of licences, what they should cover and their wording. This consultation had been scheduled for 2020 but has been fast tracked due to the situation that arose south of the border.
All wild birds in the UK, even common species and those which might be considered “pests” by some, are legally protected. However, SNH and its counterpart conservation bodies elsewhere in the UK can permit authorised persons to control wild birds or destroy their nests for certain justifiable reasons including preserving public health, preventing agricultural damage and protecting air safety, by virtue of issuing licences. Licences can be granted individually but the majority of bird control is carried out under General Licence. General Licences do not require a specific application by or grant to persons, they are in effect “of right” subject to certain conditions, and therein lay the problem.
Challenge to General Licences in England
There is a balance to be struck between protecting and conserving the species that are subject to General Licences and the need to control such species in consideration of other interests. The basis of the legal challenge in England, brought by Wild Justice, was that three General Licences, covering 16 different species, had been granted illegally due to a failure to comply with the relevant provisions of the Wildlife and Countryside Act 1981. In short, it was alleged that Natural England (the equivalent body to SNH for England) failed to make its own assessment as to whether there were no other satisfactory solutions (other than granting a General Licence) and unlawfully delegated that decision to the persons using the General Licences.
Natural England had encouraged Wild Justice to deal with matters through an upcoming review of General Licences but Wild Justice raised legal proceedings instead. On advice, Natural England concluded that the General Licences had been granted improperly. The General Licences therefore had to be revoked and this occurred at 23:59 on 25 April 2019, following an announcement on 23 April. At a time when many farmers were particularly anxious to ensure the safety of new lambs, the revocation caused consternation in the farming community.
New General Licences in England
Natural England then went into overdrive to issue new forms of General Licences that complied with the law, with three now issued and more to follow. Natural England are prioritising their efforts such that the first replacement General Licence, published on 26 April, covered the killing or taking of carrion crows to prevent serious damage to livestock (addressing concerns around predation of new lambs). The next two, issued on 3 May, allow the taking of woodpigeon for preventing serious damage to crops, and of Canada Geese to preserve public health and safety.
These new General Licences must meet 3 requirements:-
- Natural England must be satisfied that the licences will only be used where there is no other satisfactory solution; in effect lethal methods are a last resort
- They must not be detrimental to the conservation status of the species so licensed
- They must respect special area designations of land
In Practice – England and Scotland
It remains to be seen whether these changes will have any practical effect; as Natural England stated “this is not a ban on control, it is a change to the licences that allow control to take place”. There has been no revocation of any General Licences in Scotland; authorised operators can continue exercising bird control in accordance with the terms of the General Licences as they have previously.
SNH appear satisfied at this stage that their form of General Licence does not fall foul of the problems the English counterparts did. However, it might be anticipated that as part of their consultation SNH will seek to alter the terms of the General Licences and we would urge all interested parties to respond to the consultation in due course.