A little while ago Mrs Justice Lang handed down her judgment on the legal challenges by myself and the RSPB. We lost.
In fact we both lost on all counts so it sounds like a bit of a massacre – but it wasn’t.
Our challenge was of the decision by Natural England to issue licences for Hen Harriers to be taken from their broods, raised in captivity and then released into peril again on or near grouse moors. Our claim was not simply that it’s a stupid idea (though it is a stupid idea) but that it was illegal under the Wildlife and Countryside Act and the Birds Directive. The judge found against us and agreed with Natural England that the licence was for research purposes, not yet for conservation purposes, and therefore could proceed.
It’s disappointing to lose but I’d like to thank all my supporters and my legal team for mounting this challenge and the RSPB for taking their challenge alongside mine. It needed to be done, it certainly wasn’t frivolous (otherwise we would not have been given permission to proceed with the judicial review) and it may not be over yet.
Several good things have come out of our challenge. What are those good things?:
- No brood meddling occurred in 2018 – we’ll never really know whether the two legal challenges helped prevent any brood meddling last year, but they may have done.
- I’m no lawyer but I am a scientist by training so I feel competent to comment on the science. Natural England will look very foolish unless they demonstrate a high degree of scientific rigour in what – if anything – they allow to happen under licence. We would have to expect that there would be a controlled comparison of the success of brood meddling and its consequences for Hen Harriers. That might well have to involve decent sample sizes of meddled and unmeddled Hen Harrier nests on grouse moors – something that would be very difficult to achieve in most years in England. Just ‘seeing what happens’ won’t cut it. How do NE think that they will demonstrate that chicks taken into captivity from grouse moor sites do better than those from ‘unmeddled’ nests and at the same time show how birds released from captivity suvive as well as those reared from ‘unmeddled’ grouse moor nests? I look forward to seeing how NE addresses this challenge with their willing partners in the grouse shooting community. NE may have to ensure that a good proportion of ‘control’ nests get a 24-hour guard to enable themselves to make much of the data. Otherwise they are heading for a muddled meddling study.
- I’m no lawyer, but as an observer in court, albeit not a completely impartial one, NE looked a shambles at many stages. If they carry out the research on brood meddling (if!) and if it shows anything of value (if!) then they will still have to face the questions about whether they have fully considered alternative legal actions to conserve Hen Harriers if they consider licensing brood meddling as a conservation measure. We are ready for that discussion now, NE showed no sign of being ready for it at all. But they have time to ensure that other measures such as better law enforcement are put in place while the research goes on (if it goes on).
- We may seek to appeal the judgment in the Court of Appeal. There are legal issues coming out of the judgment which we feel are important to challenge or at least clarify. I can’t say more about that now but I have been, and am, taking legal advice.
So, we lost. But we have already done some good. And it may not yet be over…