This was my first witness statement in the brood meddling judicial review.
For the Claimant
Dr Mark Avery
16 April 2018
IN THE HIGH COURT (ADMINISTRATIVE COURT) CO/ /2018
IN AN APPLICATION FOR PERMISSION
TO APPLY FOR JUDICIAL REVIEW
DR MARK AVERY
First Interested Party
SECRETARY OF STATE FOR THE ENVIRONMENT
FOOD AND RURAL AFFAIRS
Second Interested Party
FIRST WITNESS STATEMENT OF MARK AVERY
I, Dr Mark Avery, of 9 Lawson Street, Raunds, Wellingborough NN9 6NG, WILL SAY AS FOLLOWS:
- I am the Claimant in these proceedings and I provide this statement in support of my application for judicial review. The purpose of this statement is to support my application for permission to proceed with a judicial review challenging Natural England’s decision dated 16 January 2018 to grant a licence for the “brood management” of Hen Harriers.
- Except where I indicate to the contrary, I make this witness statement on the basis of facts and matters within my knowledge. Where these facts and matters are within my own knowledge, they are true. Where the facts and matters in this witness statement are not within my knowledge, they are true to the best of my information and belief.
- I was born in Bristol, UK, on 29 March 1958. I am a scientist by training and worked for the Royal Society for the Protection of Birds (RSPB) for 25 years from 1986 to 2011.
- I graduated from Cambridge University in 1979 with an upper second class degree in Natural Sciences having studied Applied Biology for my final year. I worked as a research assistant to Dr John Krebs (now Professor Lord Krebs FRS) in the Zoology Department of Oxford University during 1979-80. I then did a PhD based at the Zoology Department of Aberdeen University, supervised by Prof Paul Racey, on the Winter Activity of Pipistrelle Bats Pipistrellus pipistrellus which I was awarded in 1983. In 1984 and 1985 I held a Natural Environment Research Council Research Fellowship at The Zoology Department at Oxford studying the social behaviour of European Bee-eaters.
- In 1986 I joined the RSPB’s Research Department as a Biologist studying the science behind a range of bird conservation issues such as upland forestry, the conservation throughout the European Union of the Roseate Tern Sterna dougallii and the impacts of sandeel fisheries on seabird populations. I was promoted to Senior Research Biologist and in 1992 to Head of Science at RSPB.
- I have published numerous scientific papers and articles in a wide range of journals including Nature, Journal of Animal Ecology, Journal of Applied Ecology etc.
- From July 1998 to April 2011 I was the RSPB’s Conservation Director with responsibility for strategic direction of RSPB’s UK and International Conservation work. This involved advocacy of RSPB views and policies to politicians, civil servants etc as well as leading the acquisition by RSPB of land for nature reserves, working with statutory agencies and other interest groups and continuing to have responsibility for the RSPB’s science.
- Since leaving the RSPB in 2011 I have written and published books, all with themes of birds and nature conservation: Blogging for Nature (self-published 2011), Fighting for Birds (Pelagic Publishing, 2012), Behind the Binoculars (with Keith Betton, Pelagic Publishing, 2013), A Message from Martha (Bloomsbury 2014), Inglorious (Bloomsbury, 2015, second edition 2016), Remarkable Birds (Thames and Hudson 2016) and Behind More Binoculars (with Keith Betton, Pelagic Publishing, 2017).
- I have also written for wildlife magazines including a monthly column, The Political Birder, for Birdwatch magazine since 2011, a regular column for British Wildlife magazine, and less regularly or more distantly for BBC Wildlife magazine, The Field, Hillwalking UK, Wild Travel magazine, British Birds and occasionally for national newspapers The Guardian, The Independent, New European. All of this writing is in the general area of birds and nature conservation.
- I have also worked for a variety of environmental non-governmental organisations as a consultant during the past seven years.
- I have written a daily blog called Standing Up for Nature since I left the RSPB which discusses current conservation issues and news. My blog has featured a large amount of comment and reporting on issues surrounding grouse moors and Hen Harriers.
- In summary, I am a scientist with a love of nature and a long track record of involvement in nature conservation over 30+ years, with a particular interest in grouse shooting and its impact on the environment including the magnificent bird the Hen Harrier.
What is wrong with “Brood Management”
- I am bringing these judicial review proceedings because in my view Natural England’s decision to grant a licence which authorises the disturbing and taking of Hen Harrier eggs and/or chicks from their nests, rearing them in captivity and then releasing them in the same general vicinity as their capture (otherwise known as “brood management’), is wrong and unlawful. It is an unwarranted, unnecessary and inherently risky experiment on a species whose population in the UK is already drastically below what it should be because of the illegal persecution it faces from those involved in the grouse shooting industry.
- Natural England’s licence of brood management does not adequately address the underlying cause for the low population and lack of breeding success of the Hen Harrier – illegal persecution and criminal activity on moorlands. Rather it seeks to test whether disturbing the very few breeding pairs of Hen Harriers there are in England, taking their eggs and/or chicks, rearing those chicks in captivity and (if they survive that) releasing them in the same vicinity facing the same threat, will soften the criminal minds of those who carry out illegal persecution. This is both wrong and unlawful.
- “Brood Management” is not an established conservation technique. The only other circumstances I am aware of where techniques akin to brood management have been employed are in the very different circumstances of i) reintroductions (or translocations) where species, which have been extirpated (or almost extirpated) in part of their natural range, are reintroduced to expand their range and increase their numbers in the wild: such as has been done with the Red Kite and White-tailed Eagle in the UK; and ii) ‘rescues’ where birds are taken/rescued from immediate danger, reared in captivity and then released into the wild into an area where they are not in any particular danger (as has been done in the case of the Montagu’s Harrier in France where the flightless chicks of birds which have nested in cereal crops and are at danger of being killed accidentally during the harvesting of the crop are removed). And in both of those circumstances the use of such a technique is carefully prescribed by the International Union for the Conservation of Nature (IUCN) guidelines which make it clear that the birds should only be released in areas where the reasons the bird either became extinct or was under threat have been adequately addressed.
- The above makes obvious sense in conservation terms. However, there is no evidence whatsoever that Natural England have taken any steps to minimise or seek to reduce the risks of illegal persecution that limit Hen Harrier numbers to such a low level in the areas where this trial is to be conducted. As such Natural England’s brood management plan clearly fails the IUCN guidelines in its proposal to take birds in danger, rear them in captivity and release them back into the same danger without doing anything to diminish that danger.
- Natural England may respond that this is only a trial but that is no answer to my objections. Brood Management is being trialled with a view to it being rolled out on a larger scale. Furthermore, the Hen Harrier enjoys the highest legal protection a bird can enjoy under domestic and European law which means that actions such as disturbing and taking the Hen Harrier can only be undertaken (even for the purposes of a trial), if there are no other alternative satisfactory solutions. In this situation there are clear and viable alternative ways of addressing the persecution of the Hen Harrier which should have been considered by Natural England, but were not.
The Licensing Decision
- I first learned of the Defendant’s decision to license brood management through reading the (excellent) Raptor Persecution UK blog entitled ‘Five year Hen Harrier brood meddling trial gets green light to start this year’ published on 17 January 2018 https://raptorpersecutionscotland.wordpress.com/2018/01/17/five-year-hen-harrier-brood-meddling-trial-gets-green-light-to-start-this-year/
- I already knew that the licensing of brood management was a possibility because two years earlier on 14 January 2016 a Department for Environment Food and Rural Affairs (Defra) led sub-group of the Upland Stakeholder Forum had published the Joint action plan to increase the English hen harrier population (“Joint Action Plan”) which had included (most controversially) brood management as one of six initiatives (the others being: monitoring of the populations in England and the UK via satellite tagging; encouraging diversionary feeding of nesting Hen Harriers by landowners; working with the Raptor Persecution Priority Delivery Group to analyse monitoring information and build intelligence; protecting nests and winter roots from wildlife crime; and southern reintroduction.).
- I and nature conservationists had been very vocal and very critical of the Joint Action Plan and particularly the brood management proposals. We considered that the Joint Action Plan reflected the highly skewed membership of the sub-group which excluded raptor workers (despite requests from the North of England Raptor Forum to be represented as an interested party) but included three pro-shooting organisations whose memberships must include those parties whose criminal actions are endangering the Hen Harrier: the Game and Wildlife Conservation Trust, the National Gamekeepers’ Organisation and the Moorland Association. We were surprised and disappointed when the RSPB initially welcomed the plan but pleased when a few months later they reversed that decision.
- In truth, following publication of the Join Action Plan I did not expect brood management to be licensed. When on 17 January 2018 I learned it had been I was deeply dismayed because the proposals do not fully or adequately address the core problem for the bird, that of criminal persecution. I wrote the following blog also posted on 17 January 2018:
Yesterday Natural England announced that it had issued licences for Defra’s highly controversial Hen Harrier brood management scheme (but this blog by Raptor Persecution UK is a much better description of what is going on).
Natural England was once a statutory nature conservation organisation of high repute but it is no longer fit for purpose. All NE staff should hang their heads in shame today, either because of their actions, or their inaction or simply because their organisation has moved beyond the pale. Those paid Natural England board members who regard themselves as conservationists should consider their positions.
So, what’s all the fuss about? Regular readers of this blog will know, but it’s probably worth a quick summary. The Hen Harrier is a rare bird which ought to be much commoner but its numbers are greatly suppressed by illegal persecution by grouse shooting interests. Hen Harriers eat mostly voles and small birds but they can reduce the numbers of Red Grouse which are shot for fun on upland heather moorland. Killing of Hen Harriers to protect grouse shooting incomes is systematic, ruthless and entirely illegal – it has been illegal for more than 60 years.
That is the situation and that’s not under dispute. Under such circumstances one would expect a government department responsible for nature conservation to be tackling the wildlife crime which has driven down Hen Harrier numbers but instead this government has colluded with the criminals and come up with a bizarre scheme called brood management.
Grouse shooting interests don’t like Hen Harriers and break the law to kill them but the government reaction is not to enforce the law, it is to give the criminals what they usually get through crime by a government-funded scheme which takes nestling Hen Harriers away from the grouse moors and keeps them in cages during the summer months so that they are not fed grouse by their parents. They’ll then be released back on the grouse moors later in the season (where they will be persecuted as normal). This is a taxpayer-funded scheme that gives the criminals what they want without them running the risk of getting prosecuted.
Defra is soft on crime, and not so much soft on the causes of crime but more like completely in bed with the criminals. Natural England’s job is to plump up the pillows, smooth the sheets and supply hot water bottles.
This announcement has stung the RSPB into using strong words to condemn it. The RSPB official Twitter account, @natures_voice, with 282,000 followers (that’s around 3-4 times the membership of the Conservative Party these days) said this late last night:
Alternatives to Brood management
- As I set out above it is my view that Natural England failed unlawfully to consider alternative actions to brood management of Hen Harriers in their decision to license this activity. I also consider Natural England has a wider responsibility to ensure that actions for Hen Harriers wherever possible and feasible enhance their actions across the range of their work to conserve nature and so, for example, preference should always be given to those actions which would deal with the generic issue of wildlife crime at the same time as the specific wildlife crime against Hen Harriers.
- Examples of alternative actions that ought to have been considered include:
- Increased action to detect wildlife crime against Hen Harriers and other protected species
- The Joint Action Plan is weak on law enforcement, there are no proposals to put additional funds or resources towards increased detection and enforcement of wildlife crime and it appears to put the onus on working with the Raptor Persecution Priority Delivery Group which is widely regarded as an ineffective talking shop. Natural England should be doing far more. It should be engaging the general public who live in and use the uplands to mobilise them as eyes in the field to aid detection of wildlife crime and to raise the public’s ability to identify and report wildlife crimes. Leaflets? Public meetings? Training courses for estate workers? Clear statements that whistleblowers with evidence of wildlife crime will be protected? Promotion of the Defra helpline on which poisoning incidents can be reported? Promotion of the RSPB wildlife crime hotline on which suspected wildlife crimes can be reported? A whole range of outreach measures are available and should have been implemented with more vigour and considered ahead of consideration of brood management.
- Analysing and publishing data collected in Natural England’s own tagging study.
- Natural England has been tagging (initially radio tags, then satellite tags) Hen Harriers since 2002. These data have not been properly analysed nor the results published. This should have been a high priority. A good preliminary report (publications.naturalengland.org.uk/file/81030 ) was published in 2008 but nothing similar has emerged since despite a decade of further data collection and potential analysis. I understand that these data are currently being analysed by two academics but any publication date is quite a long way off. These data on the ranging behaviour and the locations of the suspected deaths of the individual Hen Harriers clearly hold relevance for correct deployment of detection and enforcement resources and should have been analysed properly long before now.
- Monitoring and Protecting Hen Harrier nests and winter roosts
- There are good examples of Hen Harrier nests being protected from criminal activity if they are found early enough in the nesting season. For example, the rapid detection of a nesting pair and appointment of three wardens to carry out 24-hour surveillance led to successful nesting of Hen Harriers in the Goyt Valley, Derbyshire/Staffs border in 1997, which was the first successful Hen Harrier nest in Derbyshire since 1870. Natural England should be working with raptor workers, RSPB, birders, landowners, National Park and Areas of Outstanding Natural Beauty staff and others to ensure that every potential nesting attempt is detected early, landowners are informed of their responsibilities and that there are eyes in the field and boots on the ground. Rapid detection of displaying birds in spring, and on-the-ground monitoring of the birds would cut down the possibility of crimes being committed.
- Natural England has also not invested sufficient resources in protecting winter roosts of Hen Harriers where we know that many Hen Harriers are killed (not least from Natural England’s own satellite tagging project). Natural England has not engaged with the North of England Raptor Forum to ensure that the activities of those volunteer raptor workers are encouraged and increased through partnership working across the whole of the north of England. This is clearly an alternative action.
- Seeking voluntary commitments from Landowners/ land managers that they will not persecute and will seek to protect the Hen Harrier
- The Langholm Study (also known as the Joint Raptor Study) took place between 1992 and 1996 on the grouse moor of the Duke of Buccleuch in southern Scotland and shows what can happen if landowners commit to ensuring that birds of prey are not persecuted on their land. I was a member of the scientific steering committee. Hen Harriers and Peregrine Falcons were ‘protected’ during this period by His Grace making it abundantly clear to his staff and anyone else in the neighbourhood that he wished for no illegal persecution to occur during the course of the study. The result was that Hen Harrier and Peregrine numbers both rose to largely unprecedented numbers: Hen Harriers increased from 0-2 pairs in the years preceding the study to 14 nesting females in 1996. This was taken as an indication of the impact of illegal persecution of Hen Harriers in the preceding years. This high nesting population of Hen Harriers on a single, albeit large, shooting estate demonstrated the potential for Hen Harrier population increase if only wildlife crime were to end.
- The Langholm study was only possible because the Duke of Buccleuch ensured the protection of Hen Harriers and Peregrine Falcons on his estate. Natural England should be seeking similar commitments from landowners and land managers of grouse moors in northern England to uphold the law, particularly if, as is often claimed, the criminal actions against Hen Harriers are taken by a few bad apples in the grouse shooting industry. Natural England, with its close relationship with landowners, is well placed to encourage law-abiding estates to self-identify and put more pressure on the bad apples if that is indeed the situation in the industry.
- Natural England should seek public statements from the co-signatories of the Joint Action Plan (the National Gamekeepers’ Organisation, the Moorland Association and the Game and Wildlife Conservation Trust) that their members will not break the law and that they realise that criminal elements within their own industry are the cause of the Hen Harrier’s poor conservation status.
- In addition, Natural England should seek to publish a register of grouse shooting estates in England which have publicly stated that they will abide by the law and which will work closely with conservation organisations (eg Natural England, the RSPB and the North England Raptor Forum) to secure a better future for this highly persecuted bird.
- Increased action on diversionary feeding of Hen Harriers
- Diversionary feeding is the technique of providing nesting Hen Harriers with an easily accessible source of food for their young in order to reduce their predation on Red Grouse chicks. Diversionary feeding reduces predation pressure from adult Hen Harriers provisioning nests (the stated rationale for brood management given in the NESAC paper to Natural England Board). It is tried and tested and has no practical drawbacks of implementation on the ground compared with the risky and unproven technique of brood management. Its major drawback is that for it to have an impact on Hen Harrier population levels it depends on a voluntary cessation or reduction of wildlife crime in a much larger area than the landholding on which the Hen Harriers nest. Natural England issue a class licence for diversionary feeding each year, for which landowners can apply; however, there were no applications to exercise this licence in 2016 or 2017. Natural England should be doing more to encourage landowners to ‘allow’ Hen Harriers to nest on grouse moors (ie not to break the law) and to use diversionary feeding to reduce the impacts on their businesses. The similarity of outcome and advantages of having a proven track record do not seem to have been considered by Natural England.
- Alternative forms of trialling brood management
- Brood management is a gift to grouse moor owners – it gives them what they want and does not necessarily aid the recovery of the Hen Harrier.
- The Joint Action Plan only says that Natural England should ‘scope out’ brood management and yet this is an area where Natural England has been conspicuously active in going well beyond the minimum and with apparently greater enthusiasm than it has taken forward other less risky and more proven alternatives.
- Natural England has even set the distance threshold (the distance between two adjacent pairs of Hen Harriers that could trigger brood management) at an inappropriate level of 7km, whereas Elston et al (2014, https://besjournals.onlinelibrary.wiley.com/doi/epdf/10.1111/1365-2664.12315) calculated that the distance at which Hen Harriers have a serious economic impact on grouse bags is 10km. A 7km distance between nests represents a density of half the level of one set at 10km (since for the density within a radius of xkm distance is over an area of x2km2 , and 72 is less than half 102”).
- For even a trial of brood management to be worth considering the following conditions should have been set: (1) that Natural England’s data on Hen Harrier movements and survival should have been fully analysed, published and assessed to understand its implications and to target necessary actions; and (2) that the English population of Hen Harriers should be above a certain threshold number of pairs (I would suggest 20 pairs) for at least three years in five before any trial is licensed. This would address the aims of the Joint Action Plan and ensure that brood management was contingent on a reduction in wildlife crime. This is clearly a better alternative to rolling out a trial in the absence of any commitment from the criminal elements that they will reduce their level of crime if given the gift of brood management.
- Financial incentives to tolerate Hen Harrier nests
- Hen Harriers can have an economic impact on the viability of grouse shoots if Hen Harrier densities are sufficiently high (and so can other species of birds of prey). Under these circumstances Natural England could offer financial incentives to land owners for the successful nesting of Hen Harriers on their land. Such incentives should be available to all private land owners including conservation charities. This would be a test of the grouse shooting industry’s willingness to act in good faith to ‘allow’ (ie not commit wildlife crimes against) Hen Harriers to nest in the English uplands.
- Vicarious liability
- In Scotland, vicarious liability for wildlife crime came into force on 1 January 2012 as part of the provisions of the Wildlife and Natural Environment (Scotland) Act 2011 (Part 2, section 24). Under these provisions a person such as a landowner or game manager can be found guilty of an offence committed by another person who is acting as their employee or agent. While it is a defence to show that the accused did not know the offence was being committed by their employee or agent, it is also necessary to show that all reasonable steps were taken and all due diligence was exercised to prevent the offence being committed. There have been two successful convictions to date (neither on grouse moors, but both involving bird of prey persecution): Ninian Robert Hathorn Johnston Stewart pleaded guilty and Graham Christie. This is a measure which would act as a deterrent to those who commit wildlife crimes, including crimes against Hen Harriers. It is clearly an alternative action.
- Withdrawal of the general licence from individual shooting estates
- In Scotland, a former minister, Paul Wheelhouse, ‘required SNH to deliver a process whereby the ability to control crows and gulls under the General Licences (GLs) would be withdrawn for an area or persons if, on the balance of probability, SNH consider crimes against birds of prey are occurring on an area.’’ These provisions came into existence on 1 January 2014. They did not require primary legislation. They have been used and they act as a general deterrent to those engaged in wildlife crime including wildlife crime against Hen Harriers. Control of common avian predators, eg Carrion Crows and Magpies, is licensed under a similar General Licence in England and a similar process would be feasible. This is clearly an alternative which should have been considered.
- Licensing grouse shooting
- The UK is unusual in its lax form of regulation of game shooting. There is no requirement for shooting estates or those engaged in game shooting as an activity to restrict the number of game killed, nor to report on that number, nor to report on their activities, for example under the General Licence. Scottish Natural Heritage (the fairly close equivalent of Natural England in Scotland) produced a review of game bird hunting licensing arrangements in 14 European countries. The review showed how little regulation there is in the UK and was a factor in the Scottish government taking steps towards licensing of grouse shooting.
- In Scotland, the government has set up an expert committee to look at the ecological benefits and disbenefits of grouse shooting as a step towards licensing this activity and the Scottish National Party has adopted a policy to support licensing for driven grouse estates. The apparent rationale for moving towards licensing in Scotland is that there is too much wildlife crime against a range of protected wildlife including Hen Harriers, that the grouse shooting industry is the source of much of this wildlife crime and that the status quo is not acceptable. These are the same conditions that apply in England and therefore licensing of the whole industry is clearly an alternative that should be investigated with as much vigour as it is in Scotland.
- A current e-petition on the Parliament website in favour of licensing driven grouse shooting has already collected over 15,000 signatures and will remain open for signature until June 2018.  The Government in their online written response to the petition state (emphasis added): “The Government has no plans to license grouse moors nor to introduce vicarious liability in England for offences related to wildlife crime. The introduction of such new regulation would require evidence that it will be effective. We are not aware of compelling evidence that the introduction of such provisions would have a significant deterrent effect on those who persecute wildlife.” The Government might be right that there is no “compelling” evidence that licensing grouse moors and/ or introducing vicarious liability would have a significant deterrent effect on those who persecute wildlife but surely the best way of finding out if they do would be to run trials of them. That would make a lot more sense than running trials of Brood Management which put the endangered Hen Harrier at further risk.
- Banning driven grouse shooting
- It is my view that the environmental disbenefits to society as a whole of the intense management regime necessary to enable driven grouse shooting, and its dependence on wildlife crime to be economically successful, and the long-term intransigence of the grouse shooting industry, mean that the most effective means to protect habitats such as blanket bogs and species such as the Hen Harrier and deliver benefits to the taxpayer and wider community rather than to the grouse shooting industry (to the many rather than the few) would be to ban driven grouse shooting and that this will be how this issue will eventually end. An e-petition on the parliament website which I proposed in 2016 gained 123,077 signatures in six months which demonstrates that a large number of ordinary people support such action. Similar e-petitions in favour of grouse shooting, or as set out above in favour of licensing of grouse shooting, have been much less successful in terms of signatures raised which appears to demonstrate considerable public support for banning driven grouse shooting. A ban is clearly an alternative to brood management which would solve the problem and deliver wider benefits, including wider environmental benefits which form part of Natural England’s responsibilities. Certainly if the alternatives set out above were trialled and failed, then in my view an all-out ban of driven grouse shooting would become a very clear and feasible future option and an alternative which Natural England should consider.
- Faced with similar legal, economic and biological issues the Scottish government has moved much more quickly and sensibly, and I argue lawfully, to address wildlife crime against Hen Harriers. It is notable that the Scottish government and Scottish Natural Heritage has not introduced ‘brood management’ as any part of its response to wildlife crime on grouse moors.
- Instead, in Scotland, a wide range of measures have been introduced which could also have been introduced in England but have not been properly considered by Defra and Natural England.
- The response of the authorities in England to the plight of the Hen Harrier has been pitifully inadequate and the licensing of the risky, untested and unpopular trial of brood management is of no value to Hen Harriers compared with the alternatives available and is an indication that in England the authorities with responsibility for nature conservation are more concerned about working closely with grouse moor interests than in fulfilling their legal responsibilities to protect Nature.
- If Hen Harriers had had a voice at the table during the production of the Joint Action Plan they would never have supported brood management. They would have pointed out that their problems derive from the illegal activity of the very industry most strongly represented around the table and most keenly advocating brood management. Hen Harriers would have voted for increased regulation of the grouse shooting industry and would have voted strongly against brood management because they would have known it is a risky business with little chance of success as it does not tackle the causes of wildlife crime. Hen Harriers would be most unimpressed by Defra and Natural England and would undoubtedly be seeking a judicial review of this decision.
Dr Mark Avery
 This is a matter which the Natural England Science Advisory Committee (NESAC) singularly fail to address in their 2015 advice to the Natural England board.