You will remember that last year Natural England withdrew General Licences for the control of avian pest species in the face of legal threats from a group called Wild Justice. This year the same group has been pursuing another arcane legal point in a Judicial Review of Defra’s policy on allowing the release of pheasants and red-legged partridges on or near Special Protected Areas (SPAs). With our colleagues at BASC, the National Gamekeepers’ Organisation and the Game Farmers’ Association, we became ‘Interested Parties’ in this case to protect the interests of all of our members.
In simple terms Wild Justice has argued that the Government could not be sure that the release of gamebirds was not causing damage to SPAs and under the ‘precautionary principle’ enshrined in EU law that their release should therefore be prohibited on SPAs of within 5km of them. The Government initially argued that using the current system of consents for activities on SPAs, stop notices where damage was being caused and other existing legislation, it could prevent damage to them. That argument was, however, weakened by the failure of Natural England to carry out assessments and monitoring of SPAs which could have provided the necessary information on which it could have acted to prevent any damage.
The Government therefore changed its position two weeks ago and said that it would introduce an interim licensing scheme for the release of pheasants and red-legged partridges on or within 500m of an SPA until assessments had been completed and a monitoring program put in place. In light of this, Wild Justice have indicated their intention to withdraw their case. The Government will now consult on its proposals.
Wild Justice will probably claim this as a victory (they usually do) but in reality it is very likely that little will change in practical terms for shoots on or near SPA’s that are operating to best practice, and there is little evidence any are not. The Government has suggested that there will be a General Licence with release densities based on GWCT guidance. All that Wild Justice will have achieved is another layer of bureaucracy and an awful lot of wasted Government time and resource at a time when it has plenty of more important priorities. This is exactly what happened last year when the only practical impact of Wild Justice’s legal challenge on General Licences was that farmers and conservationists were not able to manage corvids and other species during the crucial Spring period, and the General Licences were subsequently reinstated by Defra in an almost identical form to those that were withdrawn.
It is difficult to escape the conclusion that Wild Justice is fundamentally a vehicle for pursuing the prejudice - and polishing the egos of - its principal members Chris Packham and Mark Avery. They have identified what is, from their perspective, a rich legal seam created by an unholy conjunction of EU legislation and Natural England’s failures. This allows them to make mischief in the courts even if it simply means that the Government has to find alternative routes to delivering the same policy result.
Further legal challenges therefore seem inevitable unless the law, especially on issues like the precautionary principle, is changed. The irony is that the really significant impact of Wild Justice’s legal activism may well be that it forces the Government to consider divergence of UK law from EU environmental legislation after the UK leaves the EU. Many in the environmental movement will be horrified at that prospect, but if it comes to pass, Wild Justice will have to take a significant share of responsibility.