Today the Environmental Audit Committee publishes a report on Wildlife Crime.
Amongst other useful findings it recommends that the government in England and Wales introduces an offence of vicarious liability for wildlife crime (as already exists in Scotland) and makes the possession of the banned pesticide carbofuran illegal (as it already is in Scotland).
In their own, admirably few, words, the Committee summarises these two points in these three sentences:
‘Primary legislation proscribing the possession of poisons used to kill birds of prey was
enacted in 2006, but an Order listing which poisons it would be an offence to possess
has not been introduced. The Government must immediately introduce such an Order
to protect birds from poisoning. Given the current law’s lack of deterrent effect, it
should also bring forward legislation to introduce vicarious liability for raptor
We have spoken about vicarious liability rather often. Let’s concentrate on the ‘poison of choice’ for raptor killers – carbofuran.
Carbofuran has been banned from use in the EU for many years (since 2001). It has been illegal to possess certain poisons in England and Wales since 2006 – except that the list of chemicals to which this illegality applies has not been published. In contrast, in Scotland, a list of eight pesticides has been proscribed (aldicarb, alphachloralose, aluminium phosphide, bendiocarb, carbofuran, mevinphos, sodium cyanide and strychnine) under the Possession of Pesticides (Scotland) Order 2005.
When the Defra Minister, Richard Benyon, was asked by the EAC whether he would take the simple step of proscribing this poison for which there is no legal use in the whole of the European Union he replied ‘an order under section 43 of the [Natural Environment and Rural Communities Act 2006] will not be pursued at this time’.
Why not pray? The Minister’s written answer to the Committee suggested two reasons. The first is that the use of carbofuran is already banned so there is no need to proscribe its possession. Except, as the Committee point out, in Scotland there are recent cases, such as that of the Skibo estate, where poisoned birds of prey were found, and carbofuran was found, but no firm evidence for any particular person using carbofuran to poison birds of prey was found. Remember – there is no legal use of carbofuran through the whole of the EU and there hasn’t been for many, many years.
The Minister’s second, even lamer, reason for not having proscribed carbofuran, is that this government, and this Minister, prefer a voluntary approach.
This government, and this particular Minister, Richard Benyon, do not believe that it is worth helping to stamp out the poisoning of birds of prey by making it a clear offence to possess a poison for which there is no legal use in this country, nor the rest of the European Union. Carbofuran is so unpleasant that you cannot use it – but the Minister sits idly by allowing its possession to be a matter of no consequence for the law in England and Wales.
The most likely place to find carbofuran is a gamekeeper’s shed – nobody else has any use for it. Mr Benyon employs some gamekeepers himself and many of his friends employ gamekeepers, all of whom, I’m sure, behave impeccably but it doesn’t look good when a government Minister refuses to make it more difficult for law-breakers to get away with breaking the law.
We can add the subject of ‘refusing to proscribe the possession of poisons which are illegal to use’ as another example of Defra’s apparently pro-fieldsports, anti-raptor approach to life.
The EAC were clearly unimpressed by Mr Benyon’s excuses for inaction:
‘To discharge its obligations under the EC Birds Directive, to demonstrate its
commitment to addressing raptor persecution and to send a clear signal that it regards poisoning birds of prey as wholly unacceptable, we recommend that the Government immediately introduces an Order under Section 43 of the Natural Environment and Rural Communities Act 2006 proscribing possession of carbofuran and other similar substances in England and Wales.’
Note added at 15:55:
The original press release from the EAC contained the following phrases:
‘Hundreds of birds of prey have been deliberately poisoned with substances such as carbofuran that have no legal use. The Government could easily make possession an offence under legislation that has been on the statute book since 2006.’
Committee Chair, Joan Walley MP, said:
“Birds of prey are being systematically killed in this country by poisons that have no legal use, because the Government has failed to make it an offence to possess those substances.”
“Brand new legislation is not needed to criminalise possession of those poisons. Existing legislation already allows an Order listing them to be tabled in the Commons within days.”
“I challenge the Government to examine the overwhelming evidence on this and make this simple change by the end of the month – it would be an easy win for wildlife.”
Defra issued a ‘myth-buster’ as follows:
The myth: An article in The Independent claimed that Environment Minister Richard Benyon has ‘refused to ban deadly bird poison’.
The truth: This substance is not approved for use in the UK and the story is wrong. The substance in question, carbofuran, had its approval for use revoked several years ago and it is therefore illegal to advertise, sell, supply, store or use it or any other substances that have had their approval similarly revoked. To claim that the Environment Minister has refused to ban it is factually wrong.
One of the issues raised by the report concerns the use of poisons in bird of prey persecution; substances such as carbofuran and aldicarb.
In response to reports this morning on the “banning” of these substances, a little clarity might be useful. Carbofuran, aldicarb and related poisons are restricted under pesticides’ legislation. As Defra were quick to point out, in the case of carbofuran it “had its approval for use revoked several years ago and it is therefore illegal to advertise, sell, supply, store or use it or any other substances that have had their approval similarly revoked.” But this isn’t the whole story.
The RSPB thinks that the Government is missing an opportunity to provide judges and magistrates with the provision to impose custodial sentences for wildlife crimes involving poisons, rather than just financial penalties for breaches of pesticides’ legislation, by not listing these substances under the Natural Environment and Rural Communities Act 2006 (NERC)
Listing them on NERC is really straight forward. And by thus widening the penalties available, the deterrent will be stronger. It’s as simple as that.
This call has now been made loud and clear by the Environment Audit Committee report. This is not about bans – its about deterrents.
So the question to Defra is … will you list them on the NERC act (and the provision already exists to do this) thereby increase the deterrence? And if not, why not?
I hope that helps! Also, see comments below.