We lost – but we’ve already made a difference

A little while ago Mrs Justice Lang handed down her judgment on the legal challenges by myself and the RSPBWe 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?:

  1. 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.
  2. 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.
  3. 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).
  4. 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…

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53 Replies to “We lost – but we’ve already made a difference”

  1. Battles can often be lost on the way to winning the war. Keep calm and carry on.
    Thank you for trying, personally, I think it was money well spent.

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    1. Paul - thanks. I think my money and time was well spent too. And an appeal is very possible (thouh not certain).

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  2. I'm not too surprised that both legal challenges failed.
    I do agree that the challenge, probably only one, needed to be made. NE need to be kept reminded of their statutory duty. Even though you lost, you are making a difference, I'm sure. Well done.

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    1. Alex - I'm not surprised either - but I wouldn't have been surprised if they had both succeeded either! Thank you.

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  3. 'Research purposes' - Don't some countries use that excuse to continue their horrific whaling? Hopefully Tony Juniper can have some influence to stop the madness.

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        1. Why would it be? I can't see why it should. It would be sad indeed if NE felt bound by the court's decision to plough on now irrespective of any further evidence or argument that might seek to change their minds. If you come out of the court room and immediately start bandying about a new and contradictory set of facts to those you gave in court then, yes, I would think you run the risk of being charged with perjury but I can't see how or why the court should expect you to hold the same view on how to interpret or act on those facts for ever afterwards.
          I hope that NE will come to realise that the practical difficulties of undertaking a properly rigorous trial are such that they do abandon the idea.

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  4. Mark if this legalized persecution goes ahead does this ruling put legal constraints on what they can now do? There are obvious logical constraints as you have so eloquently laid out but can they just ignore them?

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  5. I was always concerned that the grouse moors taking part in the study would refuse to allow the birds to be released on their land if fitted with satellite tags. With the renewed emphasis on the research aspect, it is inconceivable that they could be released without tags. This of course assumes that 2 or more estates close enough to each other would let birds nest. I assume the research does not have the ability to remove every egg or hatched bird.
    As the rate of vanished not found birds is running at over 40%, which is well above any tag failure rate, how would NE and their partners portray this strange result when the research is published, if it ever is?
    That alone may be worth the cost of the challenge. It is certainly less than the cost of fitting so many tags in the UK which seem to vanish without trace.
    I'm not convinced that an appeal would be fruitful, as the research or trial aspect is not capable of challenge.

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  6. This is an important case. The idea that you can use this type of conservation research or monitoring to justify a decision on not addressing basic harmful effects, when the information coming from it may not be fit for purpose, has always been a worrying issue in nature conservation. Validity rests on the quality of study and the practical feedback mechanism that surely must be defined in front of the experiment. If the research cannot clearly inform and enable an approved conservation process or holds risk (including delay), to the required conservation outcome, there is a case that it is in itself harmful. Congrats to all involved so far & good luck with the follow-up - Onwards!

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  7. Great effort Mark and others. I'm no scientist but I cannot see how NE can conduct such "research" in any meaningful way given the extent of the wildlife crime in UK uplands. They will surely need to tackle that before such "research" can progress.

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      1. Why shouldn't they brazen it out, they've stuffed the uppity commoners like me and thee and they know that in the UK we are so obsessed with being seen as respectable and milquetoast moral highground methods that there will be no actual resistance or interference. This is licence to do as they please because nobody is going to take any real action against them.

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  8. If the licence is legit for research purposes then all the research must be published including null or inconclusive. Nothing to be consigned to the filing cabinet with the 95% of all studies that show nothing happened.

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  9. The full judgement is available here

    http://www.bailii.org/ew/cases/EWHC/Admin/2019/585.html

    While NE may have won (so far) the driven grouse shooting industry does not come out of this well.

    'The loss of grouse chicks is damaging to the grouse shooting industry and in consequence, hen harriers have been illegally killed, and their nests destroyed, on grouse moors, despite their legally protected status...…...'

    'It was common ground at the hearing before me that the main threat to the conservation of hen harriers is unlawful persecution by those associated with the grouse moor industry. Although the killing of birds and the destruction of nests is a criminal offence, there have not been sufficient successful prosecutions to prevent or deter the unlawful persecution.'

    The fight goes on.

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    1. De - indeed indeeed. And it can't be long before that NE Hen Harrier satellite-tagging paper emerges...

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  10. Well done for trying Mark, it certainly needed to be done, there is no shame at all in loosing and we are a little clearer on the law's opinion of all this.
    I'm sure it won't change minds on brood meddling this side of the divide but may just make NE think very hard before they go much further. Lets be blunt here there have been no brood meddled nests in the years since it was announced. Why because there have essentially been almost no nests on grouse moors and with the winter killing continuing demonstrating unremitting intolerance of harriers there seems little prospect currently ( or ever) of the brood meddled sample size being big enough for comparison of unmeddled nests in any scientific analysis.
    The grouse botherers and their pals in DEFRA/ NE are backed into a corner of their own making, not wanting to stop their campaign of extermination so this sop to them will never deliver, not wanting to try supplementary feeding, they rely entirely on government protection. This in the end will be a false dawn. If the dubious southern re-introduction goes ahead it cannot however you look at it help their cause. They are stuck in a corner of their own making and it is our intention and indeed duty to make that corner smaller and smaller.
    We are slowly but surely winning.

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  11. Well done to you all. Has the court said then, that meddling for 'conservation' purposes would be illegal?

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    1. There lies the madness. What do they claim the 'trial' is for, if not to roll it out for 'conservation purposes'? Mark, i hope you make an appeal.
      [For 'conservation purposes' read: a kicking the can down the road for another 20 years to appease the criminals.]
      It also begs the question if this is all the Hen Harrier Action Plan entails then they are doing sod all for raptors in the uplands. Well we knew that, but this makes it even more obvious.
      Tony Juniper, help!

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  12. Bad luck Mark. But you are almost certainly correct that what looks on face value like a defeat need not be read as one. If NE have been forced by your challenge into some introspection and now recognise a need to apply significantly more scientific rigour to their decisions and actions on brood meddling than they hitherto thought they could get away with, you can claim some real success. Indeed this case, and your recounting of the hearing above, has more parallels then you can shake a clutch of stolen eggs at with the legal challenges to NE that I have been (and continue to be) involved in with Tom Langton. More on this in a future guest blog maybe (I too am constrained by in-motion legal machinations). The overarching and sad point is that it appears to take legal challenges, or at least the threat of them, to force large parts of the modern NE to even contemplate applying the level of scientific rigour to their functions that one might reasonably expect of a statutory nature conservation body.

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  13. Great effort Mark and RSPB. It seems to me that you can challenge any attempt to role brood management out as a conservation tactic later. At that point, NE will absolutely have to consider alternative solutions etc.

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  14. Nice try. It had to be done.

    An obvious question arises, and you will have thought of it. A question that I have often asked myself. Can a 'research' licence be issued for an activity that could not be lawfully licensed as 'conservation'? On the face of it, the (legal) answer may be, 'yes' despite that seeming pretty irrational. And, in asking the question in this instance, there is an assumption that brood meddling, as proposed here, is NOT compatible with the BD, which is a separate legal question to which we don't yet have a definitive answer. So I think there is plenty of further scope for giving your money to lawyers, Mark!

    As to, "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", well, you'd think so wouldn't you. However, if the example of SNH's behaviour with the Strathbraan raven 'research' licence is indicative, the statutory conservation agencies have moved well beyond having any sense of shame about what they enable in the name of research. Welcome to the post-truth era, mate.

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    1. Keith - that was argued in court - apparently the judge doesn't agree with you/us Keith. I guess she has had a lot more legal experience.

      Yes but this time NE only has permission to go ahead (subject to appeal if there were to be one or more appeals) on the ground that it is 'research'. So it had better look like proper research right from the start if NE decides to proceed. NE must be taking a deep breath over this.

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  15. So which of the judges friends and families goes shooting? We all know the establishment looks after itself, and stuff like this is never judged according to the law but by corrupt backroomers making sure the poors don't get uppity. Having exhausted the "civil" option, I hope now that the next step is the uncivil ones. Because that is the only way to change an establishment and our rotten class system. The French knew this way back in the 1789.

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    1. I am always disturbed when it is asserted without evidence that a public official is corrupt simply because they have made a decision that the accuser disagrees with. I've been on the receiving end of such fabricated accusations and the bullying injustice of it still pisses me off. In this case, too, the decision was one of lawful process, not about whether brood meddling is a good idea or not. Please remember that.

      If the judge accused you of corruption without any evidence whatsoever you'd be outraged (and rightly so).

      Beware of where "Enemies of the People" takes us. It's done Trump et al and the Daily Mail a lot better service than it has progressives or environmentalists.

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  16. If "the licence was for research purposes, not yet for conservation purposes, and therefore could proceed" was the judge interested in whether the design of the research project was robust and whether it was being overseen by a panel of reputable, appropriately qualified and independent scientists? And whether that panel has met and given an opinion on the project's design?

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    1. Relating to this, are all the documents in the public domain, not least details of experimental design, social research methods (I see they'll be looking at whether brood removal changes perception and practice of driven grouse moor managers - there are established social science methods for revealing such information)? Do we know which scientists are actually going to do all this research? We know that NE has provided four years worth of funding to Exeter University for a PhD for the lowland reintroduction - presumably they're also funding a PhD or similar associated with brood removal?

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  17. The Judgement

    '5. The proposed brood management scheme seeks to manage the conflict between the conservation of hen harriers and the grouse shooting industry'

    To a stupid lay person that seems to contradict the conclusion.

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    1. I'm not sure that 5 is properly framed surely it should say
      "The proposed brood management scheme seeks to manage the conflict between the lawful conservation of Hen Harriers and their illegal persecution by criminal elements within grouse shooting."
      Makes the scheme look what it is a sop to the criminals rather than tackling their criminality. The scheme is living proof that the government and NE have neither the will, nor are prepared to commit resources to stopping that criminality. What other criminality would get that sort of reaction from government?

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      1. I have just read through the whole thing.
        It was painful. She agreed with every point made by NE and disagreed with every point made by Mark and the RSPB.
        I need a drink.

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      2. Yes, utterly astonishing that a judge would accept as a fact that the police and the courts were incapable of preventing raptor crime and that there was no other alternative than to legalise brood persecution.
        Like you say i can't imagine any other crime receiving that kind of treatment or any other social class.

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  18. "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".

    &

    "We may seek to appeal the judgment in the Court of Appeal."

    Conceivably the appeal process could also prevent any brood meddling in 2019 depending on the timing of events?

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    1. Irrespective of whether or not it is successful, I mean. Obviously if an appeal is successful it will prevent it every year.

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  19. The word 'conservation' is used 67 times in the judges ruling (excluding the 2 used to describe Mark and the RSPB) but nah this is isn't about conservation.

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    1. Peter - Tony is a good guy but he can't do evreything. We'll have to see how he spends his time and his efforts. He has an awful lot to do.

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  20. If the project is allowed to proceed simply because of it's merits as a "study" that would in theory put NE in a real transparency spotlight. It would almost certainly create unwelcome publicity and, quite possibly, second thoughts from it's proponents. What options does that leave - the "status quo ?"

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  21. Well done Mark and the RSPB.
    Two things come to my mind, firstly, if NE won the case on the grounds that the brood meddling is for research then if they try to take the practice forward into a general brood meddling of wild birds then the judgement in this case my not be at all valid. Secondly hopefully Tony Juniper might be in the position of CEO of NE before too long and he might take a very different view, especially if he reads Dieter Helns book.
    So by the sound of things this is not a loss but merely a temporary set back in a series of battles which may be part of a war if NE wish it that way.
    Good luck to all and the RSPB

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  22. It should have been about whether brood meddling was a good idea or not and not about lawful process.
    And there are quite a few solicitors with shooting interests supporting the nasty brigade. Check out LinkedIn.

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    1. Loki - the conversation about whether it is a good idea is one for the pub not the court. Judges don’t judge the quality of ideas just the legality of actions.

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  23. A big thanks to Mark for stepping in and putting the effort in. Unfortunately the courts do not have a good record on rulings with regard to conservation and the environment. There's a whole load of reasons for this. However, I think the deep reason is courts are not good at adjudicating of matters of scientific evidence. The way science sees evidence is entirely different to the way it's seen in a legal context.

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  24. Thank you all for trying, and whilst the outcome may not be what we wanted it brings the issue to the attention of more of the public, raising the profile of driven grouse shooting and the practices it relies upon to continue.

    Mrs Justice Lang's judgement will serve to strengthen resolve, I sense the momentum is building as more lights are shone into mirky corners.

    Quis custodiet ipsos custodes?

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  25. Many thanks Mark and others for taking this one on. It is extraordinary that the Government's supposed conservation body is prepared to interfere with hen harrier broods, without a robust research plan in place, simply because it's not possible to track down and prevent criminal activity. I sense that the issue of raptor persecution is getting a lot more publicity now, with the finger clearly being pointed to those who manage grouse moors, so there is more public understanding and support. Is there a way of challenging NE to present its 'research' proposals?

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