![Pheasant - pestilential alien invader? Photo: David Croad (Own work) [CC-BY-3.0 (http://creativecommons.org/licenses/by/3.0)], via Wikimedia Commons](https://markavery.info/wp-content/uploads/2013/10/800px-Common_Pheasant_Phasianus_Colchicus.jpg)
There has been an outcry by raptor lovers over this decision but I am not going to join it here. It’s not the best thing that could have happened, but it’s not the worst thing that is happening either. I have hardly mentioned this case (in fact I can’t find any record that I have (but I might have)) on this blog so I can’t say ‘I told you so’ but had I written about it then I would have been able to say that.
Without knowing the details of this case then the principal that licences should be given to cull protected species under particular and strict conditions is part of the law and almost certainly should be. It is not new. And, moreover, it is not unreasonable that in return for making widespread killing of species illegal, there should be the possibility of bumping off a few individuals under carefully defined and special circumstances (which is what the licensing system is supposed to be). It would be surprising if special circumstances did not sometimes occur and the law should recognise that possibility. It’s a pity that this applies to Pheasant rearing – but it does.
It would be remarkable if a gamekeeper, supported by the National Gamekeepers’ Organisation, had chosen a poor example with which to go to judicial review, so I assume that they had chosen a pretty good example – and it seems that they have. Natural England don’t seem to have played this very well either. But, there you go.
Yes, the Pheasant is a non-native species which is released in huge numbers into our countryside for the sole reason that people want to shoot it, and that seems a pretty odd thing to me, but once Pheasant shooting is part of the legal warp and weft of rural life then the law on protected species will apply to it too. You may not like that fact that a licence can be sought for Buzzard control because of impacts on an economic interest based on a non-native species but that doesn’t mean that the current law allows NE to reject a licence on anything like those grounds. If you don’t like it, then campaign against Pheasant shooting – good luck on that one! – or campaign for a change in the law. Or ask NE to be better at their job.
The judicial review, as I understand it, does not look at the merits of the case from the gamekeeper, it looks at the merits of the process carried out by Natural England to reach their decision. This is a bit frustrating – the decision might be ‘right’ even if the process was ‘wrong’, or vice versa.
This, of course, is an analogous argument to the discussion between George Monbiot and Tony Juniper, and supports Monbiot’s approach. Monbiot might well say, if you use legal arguments (or economic ones) to defend nature then you are leaving the moral high ground and you will often lose – because the people who wrote the laws (and developed the ways that economic arguments are used in our society) won’t let you win.
I would rather that no Buzzards were culled to protect Pheasant shooting, but I can see that an occasional Buzzard death is an almost inevitable part of the system, so we either have to change the system or live with it. And in this case, I can live with it, not happily, in a rather grumpy way, but I can live with it as the benefits of massive legal protection for wildlife far outweigh a few ‘difficult to achieve’ licensed deaths of protected wildlife. And the possibility of licences being granted under particular circumstances should make the penalties for not going through the legal process more demanding too.
So my advice to fellow raptor enthusiasts and nature conservationists would be not to feel downcast and not to go over the top about this. It may be the thin edge of a wedge that never gets any thicker.
My advice to the shooting community would be that if you see this as a thin edge of a massive wedge then you will energise even more opposition to all shooting. Your choice. After misplaying lead ammunition for years, misplaying grouse shooting, you can go ahead and get the public wound up about Pheasant shooting in a way that only you can – go ahead if you want to bring the roof down on your own heads.
My advice to Natural England is that they should up their game. They do not seem to have played this one very well at all. If there is a flood of licence applications for Buzzard control then NE must scrutinise each and every one extremely carefully and reject any that fall in any way short of sufficient evidence, which it is likely that most would.
Of course, the best way to make sure that no licenses are given to protect grouse shooting from Hen Harriers is to campaign to end driven grouse shooting.
Sadly it always seems to be “one step forward, two steps back.” Keep plugging away Mark; maybe one day eh?
I suppose that you are right Mark still galling though, especially as this is a keeper with a poison possession conviction. In principle I do not think that wildlife law should protect the entirely artificially maintained pheasant population.
However a much more interesting point is that I was under the impression that the Bird directives , which OK licences like this under some circumstances, forbid them if it becomes a plug hole type effect for the controlled species and how will this not? You kill the territorial buzzards and they are replaced, you kill them and they are replaced, how will this not happen?
That is why most if not all licences must be refuted and refused.
Mark,
I agree with your round-up of the recent case referred to above. But I would add two additional thoughts. Firstly, the NGO and their funders have spent a lot of money moving the interpretation of the law precisely nowhere and have instead brought about a legal judgement that Natural England, in this instance, should apply the guidance on licencing fairly. In other words, as you write, this whole case has been about process and not outcomes. Buzzards are just as vulnerable to a license on the 15th November 2015 as they were on the 15th November 2014 (and 2013, 2012, 2011…etc). Tim Bonner (Countryside Alliance) has called this a massive win (https://twitter.com/CA_TimB/status/665230059771441153); rather it is confirming the status quo. In my view, for what it is worth, the likelihood of a gamekeeper being able to obtain a licence is very remote, even with this ruling.
But a second person’s view is probably worth more than mine, they being a lawyer. Rosalind English’s blog can be read here: http://ukhumanrightsblog.com/2015/11/14/buzzards-should-not-be-protected-any-more-than-herring-gulls-and-cormorants-high-court/ but my take on this is that Justice Ouseley’s decision may be legally flawed and ripe for appeal at the Supreme Court. In her blog, Rosalind points out:
“Article 192 TFEU [Treaty on the Functioning of the European Union] encapsulates the EU principle of preserving and protecting the quality of the environment. Under Article 193, the Treaty says that environmental measures shall not prevent any member state from “maintaining or introducing more stringent protective measures”. If that is the case, it is at least arguable that a public authority such as NE may lawfully apply a different approach to raptor applications from those applied to other species of birds, in different circumstances.”
She goes on to write:
“It may be the case, as the judge concludes, that “seen as individual birds or species, the contrast between the grant to the Claimant of licences to shoot herring and greater black-blacked gull and the refusal of the buzzard applications lacks lawful and rational justification”. But the claimant is not the target of the legislation either in its EU or domestic form: the bird is. The entire package of environmental protection rests on shaky ground, if judged from the point of view of persons affected.”
Thus, as I interpret Rosalind’s comment above, the decision published on the 13th November 2015 could (?should) be appealed at the Supreme Court on the grounds that the decision was legally flawed. I would argue that this is important based on her final sentence, “The entire package of environmental…” as if ignored, it has leaves open the opportunity for parties to obtain derogations from environmental compliance if they can demonstrate that they are being economically inconvenienced by the legislation. I don’t know the answer to this, but could a company refer to this decision under the auspices of the Waste Regulations which are governed by the EU’s Waste Framework Directive and successfully argue that disposing of contaminated waste is too much of a burden for them and they should be allowed just to discharge the effluent in to the nearest watercourse?
Richard
My life in the countryside has been much enhanced with the return of the buzzard.A sign that some things are imoroving,bucking the trend of declining farm bird populations .A sign of hope that the environment is becoming cleaner,a soaring,screeching protest against a Silent Spring.
Buzzards are a protected species.A licence to kill one should surely be issued only if a rare species is threatened by their presence?
It is pheasants before peasants yet again!
Well I for one, am up for a campaign against driven pheasant shooting. Its just as damaging as driven grouse.
There is the natural environment… and if you want to work against this then you need to take steps to protect you interests by prevention. I don’t think that killing the wildlife should fall into that category. The wildlife is part of the force majeur that we all have to cope with. King Canute could not turn back the waves.
The great countryman Alex Hogg of the SGA laments the loss of 5oo poults in a single night due to cold weather. What should he have done to prevent this? Provide adequate shelter to the exotic birds or should he have shot the weather system? A buzzard takes a poult from a release pen…. why is there no roof on the pen? Buzzards, foxes, stoats and weasels are all part of nature, if you put domestic animals out into the wild and don’t protect them from nature then its your own fault if you loose some.
Full ecological analysis of pheasant shooting is long, long overdue. Before anyone, including Martin Harper, claims that it can be good for conservation how much farmland here and abroad (soymeal may require clearing rainforest!) is used to provide feed, therefore contributing to intensification of agriculture? How much energy is used heating pheasant pens? How many shoots are still trying to get way with planting invasive snowberry and salmon berry as game cover? What are the effects of pheasant releases on other wildlife, can they deplete reptile populations, do cock pheasants drive away waders, does all the protein being injected into the environment when it should be naturally declining help to maintain unnaturally high predator populations? Sure proper ecologists will think of a few more questions. An awful lot that currently don’t have answers, but aren’t even being asked so no surprise. RSPB could state publicly we need to review what really is happening with pheasant shooting which is only fair enough.
Indeed, the Industry has been allowed to get away with a claim that the shooting industry benefits wildlife based on a very partial and superficial evaluation of the evidence. I am not against pheasant shooting, although I think it needs better regulation, and the basis for that regulation might be a comprehensive understanding of ecological impact.
Indeed..an animal welfarist might well ask why wasnt the man prosecuted for allowing this to happen, especially when you consider that pheasants are apparently classed as “livestock” when in their pen. I personally helped investigate the placing of poison meat baits at a pheasant pen, [presumably to kill predators], which also contained a pile of dead pheasants. When analysed they were found to have died from feather pecking – caused by overcrowding. A gamekeeper with over 40 years “experience” was behind that criminal idiocy.
Totally agree,apart from the last paragraph,and even that might do some good though
doomed to fail.
Has anyone yet done any work on the impact of large numbers of pheasants on native invertebrate populations? I’m sure that they must have a big impact on the things with large larvae and relatively low populations – like butterflies….
my feeling on this Mark is that there should be more onus on the pheasant shooting estates to protect their livestock. as custodians of large parts of our semi-natural landscapes it is their responsibility to farm with the natural system not against it. I think this is why, with several thousand pairs of White-tailed Eagles, Norway has never had a confirmed case of domestic lamb predation by this big eagle. It was the livestock managers in southern Africa who made small improvements to ensure food and shelter for their animals that had the best rewards in productivity, not the managers who spent a disproportionately large amount of time and resources trying (unsuccessfully) to get rid of predators. The onus should be on the gamekeepers to provide refuge for their pheasant poults and they should need to prove irrefutably that they have done this and that there is still evidence of predation by a ‘rogue’ predator. Rogue predators will tend to crop up more where keepers are lax about providing adequate shelter..
“rogue predator”
An interesting concept. I would like to think that a predator that defeats the attempts at husbandry by a gamekeeper – if we are to anthropomorphise it – should be awarded the accolade of “genius” rather than a the pejorative one suggested, and selected for a fast-track breeding programme to develop genius bird-brains to run the economy, DECC, etc. That Nature is wasted on them, look. I made room for Nature in my garden even more so than usual this year and now I have nothing to eat. HUGE crop of Nasturshalums but I find them a bit peppery personally
filbert – genius!
Mark, I’m sure you won’t lose any sleep over this but I can’t agree with your laid back approach to this issue. I’ve had to read your blog three times because I assumed at first you were playing devil’s advocate or something a bit too clever for my brain, but you seem to be genuinely saying that it’s okay for the odd Buzzard (and presumably Hen Harrier by extension of the same argument) to be “bumped off”, if it means that wider protection is afforded to most other species. Why isn’t that just inconsistent, perhaps even hypocritical? Surely the point is that there is no ethical, logical or scientific justification in controlling Buzzards to protect pheasants, so the legal protection afforded to Chaffinches at least should be provided for Buzzards? How can we make progress with saving Hen Harriers if we can let the shooting interests “bump off” a few Buzzards with no justification whatsoever? Are you saying you actually believe that Buzzards significantly affect the viability of pheasant shoots, when most of the birds are released within 48 hours of the commercial massacre? I’m sincerely hoping you’ll chastise me for misunderstanding your point, and it will all become clear.
Jack Snipe – no sleep lost so far, but that might be because you posted in the middle of the night!
You don’t say what you would like the legal system to do. What it does is protect all species (except gamebirds and those under the general licence) except there is a small get-out from total protection where it is possible, if you ask, and fill out forms, and satisfy the right criteria, to remove that protection under specific circumstances. If Chaffinches eat Pheasants then you could probably get a licence to kill them – but only if you satisfied the licence conditions and under specific, local, circumstances. It’s difficult to see how the legal position could be anything other than that.
And this case doesn’t change that – as I understand it. What it does is rap NE over the knuckles for using the wrong criteria to refuse a licence. Nothing has changed legally, except those who want to kill protected species have been given a glimmer of hope that they might be able to get a licence now and again. They haven’t been given one, and the Buzzard remains protected. The main problem for the Buzzard is still all those people who kill it illegally and not those who might get a licence to kill a very few legally. The body at fault, on the face of it, and according to the judge, is Natural England.
So your error is the ‘no justification whatsoever’ – the licensing system has to ensure that there is justification.
And the judge’s judgement is mostly about whether the state, Natural England, dealt fairly and legally with the individual applying for the license – that is an important legal protection for us all. Is it OK for Pheasant shooters to be treated unfairly by Natural England? Of course not.
Those of us who want the law to be upheld can’t have it both ways. I want the law that protects Buzzards and Hen Harriers to be implemented and to count for something. And I bang on about it quite a lot. What is wrong with the system is not that protected species can very rarely be killed under licence but that protected species are regularly killed illegally. The faults are of implementation, not of the general framework.
Most laws have exceptions. I’m glad that it’s illegal to kill people but I’m quite glad that if there is a terrorist shooting people, the law allows the police, without filling in a form, but as an exception under specific circumstances, to bump them off. No, Buzzards aren’t terrorists, but most legal protection has exceptions written in to the laws and we have to live with them if we are the ones banging on about the need for the laws to be changed. Or we can campaign to change the law – that’s respectable too. You didn’t say how you would like the law to be changed in this case.
I’d just add that one of the few vaguely legitimate arguments against allowing the return of beavers and other UK extinct wildlife is a concern that if they are reintroduced, as protected species if they then cause significant local problems there’s no way of dealing with it. The licencing system provides the way of dealing with it.
Imagine, for instance, a Lynx that for whatever reason (injury say) starts to actively and specifically target livestock. The licencing system allows a legal means to kill that animal, which is much better all round than either never reintroducing lynx in the first place or creating a situation where farmers feel that indiscriminate illegal “control” (which would be easy to do and hard to prosecute) is their only option.
I agree with Mark, we need a licencing system to allow legal control under limited specific circumstances, otherwise we’re positively inviting illegal control, which we already know is very hard to police.
I also agree with Mark’s rule of law point.
It’s rare for me to disagree with you, Mark, so it may be that I’m missing something here. But if, as Langholm 1 clearly suggested and you concede, Hen Harriers cause economic losses to grouse shooting businesses, what is to stop any estate from applying for a license to kill them? And what would be the legal grounds for NE refusing them?
AlanTwo – the legal grounds right now would be that it’s a species way below its carrying capacity whose population status would be harmed by any control. And also that non-lethal means exist to reduce the impact of the problem. Although, in actual fact that is only a partial solution.
But in the long term, the solution is actually to ban driven grouse shooting.
Mark, of course you have considered this matter carefully but I think that you are too relaxed about it. I make no comment on the court proceedings in this case and their outcome. My feeling however is that the event should be a catalyst for a concerted and if necessary repeated push, by individuals and by non-government conservation bodies alike, to impress on politicians the following: (a) the absurdity of classifying, in law, as “livestock” non-native game birds that are reared and released primarily for shooting purposes and only secondarily for food consumption – and even at that to some extent as a by-product only; (b) the importance of thorough research into the effects, benign or malign, that non-native game bird release have on the environment; and (c) the need to ensure that, AT LEAST until the results of such research have been fully analysed and validated, no legally protected native predators (avian and mammalian) are killed or otherwise interfered with, under licence, in the supposed interests of non-native game birds.
Patrick – some of those things would be good to do.
On reflection it’s incredibly poor considering that it’s been going on for years (over a hundred?) and as it now involves 42 million birds, that there doesn’t seem to be any comprehensive research on the ecological impacts of pheasant rearing and shooting. A bloody awful omission that doesn’t reflect too well on the conservation sector. Needs to be addressed pronto. Also wee point, perhaps legitimate worries that the failure of NE in the High Court will make it a bit easier for licenses to be granted for non too valid reasons, there is and will be a considerable political push for predator ‘control’ that is even worse than might be supposed. Easy to miss, but there is an outfit called the Predator Action Group (PAG) comprising members of the angling community, including fishing ‘celebs’ like Jim Davidson and Chris Tarrant, who are fighting hell for leather to get otters, cormorants and other fish eaters culled. Sadly the ecological credentials of this lot aren’t any better than the shooters, which is very depressing. Eel, moorhen and even kingfisher declines have been blamed on otters (sound familiar?) and there is a spurious and ludicrous argument that cormorants are an invasive species, because the ones on freshwater flew in from the continent !?! The number of licenses already granted to kill cormorants is pretty high, a couple of thousand I think this year, can’t believe that they have all been rigorously scrutinised re legitimacy of case (in fact that requirement may have been dropped) and now growing pressure to kill the demonised otter because it eats the bloated, artificial varieties of carp that anglers like to catch.
“… the game-shooting industry’s own science has shown the impact to be virtually negligible, with an average of only 1-2% of pheasant poults taken by birds of prey”
Quote is from RPS. It flags an aspect that I don’t understand. In terms of time energy money what does it cost to shoot a buzzard, with or without a licence, compared to the cost of replacing the small losses caused by them? I posit that reared pheasants are as cheap as chips and therefore not worth the management time to count or replace losses. A gamekeeper explained to me that the reason that he never had to shoot poachers was that pheasants were so cheap in the shops that they weren’t worth poaching. He seemed quite disappointed.
In the eight years I have lived in the centre of a lowland shooting estate with a considerable buzzard population I have seen only one instance of a buzzard eating a game bird – an already very flattened partridge on a farm track. It’s a mystery to me just what they do eat – although I have seen them standing on molehills peering at the ground for hours on end. If they are developing a taste for moles I look forward to seeing huge flocks of them.
they do eat moles and earthworms and young rabbits and quite a lot of already dead things. They are an amazing generalist predator and it is great to see them back on their ecological role. But any falconer knows they are slack mettled and not very good at actively hunting and killing things. They seem to be too clever for this knowing they can get food other ways. So yes any buzzard which manages to catch and overpower an adult gamebird is to be congratulated! they need to stay protected. We have worked so hard to get them there. The attention they are getting from the game industry is unwarranted and at Langholm 2 they are being portrayed as active predators of adult grouse. It seems to me the game industry are set on derogating raptors for control purposes and trying to set a precedent with the abundant species. But even if buzzards are catching adult grouse occasionally you factor in the circumstances that the grouse population has become naive and riddled with parasites and disease because of an effective absence of predation for a century and a half. Leave the buzzards to do their thing I say and game managers need to learn to tolerate some losses to raptors just as they tolerate losses to weather and disease and of course lead pollution.
It just exposes the irrational way with which the shooting industry considers these issues. When combined with groupthink.
I agree that this research is absolutely essential, but it should be the shooting industry which pays for it, not wildlife NGOs spending their precious funds. They wont of course, because they have absolutely no consideration for anyone else as is shown by their attitude to lead shot.
My Lord, I agree with most of what you say. I am off for a lie down.