Late last week, I heard that our appeal on the unlawfulness of Natural England’s brood-meddling scheme had failed. That judgment has now been handed down and is public. The RSPB’s similar but independent challenge has also failed.
It’s difficult to say much about this result without sounding like a bad loser – tell me whether you think I pull it off below – but first some important thank yous.
Thank you to all who contributed to the crowdfunders to make the original challenge and then to mount this appeal (see here and here). I’m sorry that a bunch of judges have not seen the world like we do, but the generosity of over a thousand people made these two challenges possible.
Thank you to the brilliant lawyers, Tessa Gregory at Leigh Day, and David Wolfe QC and Zoe Leventhal at Matrix Chambers, who have argued the case with such skill, passion and dedication. They now know more about Hen Harriers and grouse moors and I know a bit more about how the law works.
And thank you to the RSPB for making their legal challenge alongside mine – I wondered whether they would, but they did.
A brief recap: this challenge was over the licensing of an otherwise unlawful action by Natural England. Natural England authorised meddling of Hen Harrier nests in northern England so that Hen Harrier nests that should have been protected were actually removed from the wild, the chicks raised in captivity and then released back into the wild. This is a scheme more or less only supported by those interest groups responsible for illegal persecution of Hen Harriers on grouse moors. It has been opposed by raptor workers, the birding public and conservationists. It’s a way of giving the criminals what they want (the absence of Hen Harriers) by dressing it up as a conservation scheme and a piece of research (in my opinion).
The legal challenge: the Hen Harrier is a protected species and our case was simply that Natural England had to consider alternatives to brood meddling and only carry out this otherwise unlawful action if alternative actions were judged to be no good. Natural England did not consider alternatives and argued that they didn’t have to because this was a piece of research. Now, twice, judges have agreed with this view.
I don’t know much about the law but I do know something about research, and the brood meddling scheme is a poor piece of research – both in concept and in delivery. The original judgment, and now the Court of Appeal’s decision, leave open the possibility that other harmful and unlawful actions may be authorised under the cover of research. This is a source of considerable concern and I’m sure that the RSPB will be considering whether it should allow such a potentially harmful view to remain unchallenged.
What next?: we could appeal to the Supreme Court. That would cost money, time and effort. How would you feel about that? I have asked for permission to appeal because that decision had to be made last week, in a 48-hour period, after a wait since January for the Appeal Court decision. However, it seems very unlikely that we would get to the Supreme Court in time to have any impact on brood meddling in 2021 so an appeal would in many ways be somewhat academic.
Justice delayed is justice denied: this challenge started in January 2018 and was first heard in court in December 2018 and January 2019, and the result of that hearing emerged in March 2019. I sought permission to appeal straight away but we didn’t get back into court until March 2020 when, because of illness of one of the judges, there then followed an enormous delay in rescheduling the appeal which took place in January 2021, and it has taken until now for that judgment to be handed down. Delays of this sort are almost unprecedented. If things had followed a more normal timetable then we would have been able to refer the Appeal Court decision to the European Court of Justice but that option is no longer available. It is also the case that although my challenge started before any brood meddling had been carried out the slow course of legal events now means that the fifth year of the scheme is likely to have happened before any prospect of winning a legal challenge on its legality.
On a personal level: I’m glad I took this challenge and I’m grateful to everyone who has helped. The right of an individual citizen to challenge decisions of statutory authorities is a right that we should prize and defend. Surprise, surprise, this government seems intent on weakening the access of individuals like me in this case, to carry out challenges of this general type. I could not have taken this challenge without the ability to raise funds through crowdfunding.
There is quite a lot of work involved in taking such challenges – lots for the lawyers but quite a lot of reading, writing, listening and deciding for the Claimant too. Since January 2018, this case has been part of my life and that’s quite an investment of emotional energy and time. I’ve considered that I have been working for Hen Harriers and for those wonderful people who funded the original challenge and the appeal. I gave it my best shot and I’m glad that I did. We lost, but without a legal challenge we would always have wondered whether we might have won.
[registration_form]
I’m sure you will, if you can, compare notes with the RSPB about the merits of a Supreme Court Appeal and make a co-ordinated decision.
As a contributor, can I thank you and the legal team sincerely for your commitment over such an extended period.
It is disappointing that the appeal failed but it is true that Natural England are given discretion in the legislation, now approved by the judges.
It does not in any way override the appalling way that NE have behaved in this matter.
Undoubtedly, you have dragged the RSPB into their action, both of which have helped shine a light into the corrupt practices of NE. Well done and also thanks for all that you and WJ have done in your other legal actions.
What next?: we could appeal to the Supreme Court. That would cost money, time and effort. How would you feel about that?
Do it. I’ll donate. I know it will probably fail even then, and btw you should pull a leaf from the shooters playbook and find out any dirt on the judge and their shooting connections, because fighting dirty is the only way and fighting to the bitter end by wasting your opponents time in making them fight even forgone conclusions is exactly how shooters and the establishment win. If you keep pre-conceding, then they keep winning. They fight every lost cause to the bitter end, and that way the push their agenda even if they lose. Stop being good losers, the sore losers are the ones who win in the end.
May be I am but can you explain why
Thanks Mark and team, together with all those like minded folk who supported the challenge, for pursuing this. While we know that morally, scientifically and philosophically brood melding is wrong it has not been viewed that way from a legal point of view.
Although it has dragged on and on it may be that it has acted as something of a deterrent during this period. In that time Wild Justice has been born and taken on challenges, you have shown the way and clearly this Government is rattled by being called into question. We can all have conspiracy thoughts on why the challenge failed, thoughts that are not a long way away from the reasoning behind brood meddling in the first place.
Probably prudent to accept that the brood management is a good solution if the objective is to increase harriers. The more these cases go on, the more they look like vendettas and not in the interests of the birds.
David – you’ll have to spell out the evidence that brood management increases HH numbers. Can you?
It is no good thanking your legal team,every time you go to court you lose.That makes you a loser!
David – simply untrue, but thank you for your comment. Have a look at this one https://markavery.info/2019/01/30/wuthering-moors-16/
A rather belated comment. My inclination is to make the appeal to the Supreme Court. Perhaps consult the RSPB as welll. However I think we have to be guided by Leigh Day on this. If they think there is a reasonable chance of success then go for it, is my view.
Your thanks and praise to Leigh Day is quite right Mark and any criticism of you for doing so is utter rubbish. You and they make an excellent team. I bet one could not find a better one on these outs of wildlife issues.
Putting aside the legal niceties I am sure it makes a difference if the judges are personally sympathetic to the claim or whether they are shooters of our wildlife for fun.
Again the only winners are the legal teams. Keep giving them other people’s money their laughing at you
George – it’s interesting how many previously silent people comment on a blog post like this one. It’s not just other people’s money – it’s my money too, thanks. And the money I raised, unlike the money that NE spent on the case, was donated by willing and informed donors. It is fairly normal for lawyers to be paid for doing legal work – but of course, I was a volunteer. The hundreds of hours I have donated to this case (and indeed others) have been given willingly but at some cost to myself.
Sorry I don’t understand why do you want to stop people helping hen harriers and increasing their numbers
Maybe you are just thick, then? If you cannot understand, perhaps the problem is you.
Please explain you wish to stop people helping hen harriers when the same action is perfectly acceptable for other species
“Please explain you wish to stop people helping hen harriers when the same action is perfectly acceptable for other species”
I daresay you know the answer well enough but in case you really don’t understand here are a few pointers for you.
Brood management is sometimes used as a kind of last resort measure to help populations that are in extremis, where there is a high likelihood of nest failure without such intervention and/or where a pair can thereby be enabled to produce more fledged broods than would be possible naturally. The goal is to increase the wild population in the long run.
In the case of brood management (or meddling) with hen harriers on grouse moors the objective is not really to increase the number of hen harriers but actually to remove them from the grouse moors thereby saving the grouse moor managers the trouble of bumping them off illegally. In the absence of gamekeeper persecution hen harriers are perfectly able to rear their own broods successfully. This brood meddling is therefore comparable to preventing your house being burgled by putting your valuables out in the garden for the burglars to take at their convenience.
Whenever conservationists do resort to such ‘hands-on’ intensive care methods as brood management or reintroductions they first need to take great care to ensure that the problems that caused the species to have a poor conservation status in the first place have been adequately resolved. There is no point, for example, reintroducing a species into an area from which it has been lost if the habitat remains unfavourable. In the case of the british hen harrier population, the problem that caused its population to dwindle was game keeper persecution associated with grouse shooting and sadly this problem has not been resolved. The RSPB’s recently published bird crime report found that 2020 was the worst year on record for bird of prey persecution. A number of raptor species were affected including hen harriers, for whom satellite tagging evidence shows that they continue to ‘disappear’ over grouse moors. There is no conservation benefit in rearing and releasing chicks if they are going to subsequently get shot when they begin to wander over the moors which, sadly, remains a very likely fate.
So, in short, the answer to your question is that people here do not wish to stop anyone genuinely helping hen harriers but we do not believe that the brood meddling scheme is achieving this or actually intended to.
Sorry Mark but NR spent money on the case because you brought it to the court
Steve – well yes, obviously, but that is a different point. And it is difficult to secure permission for judicial review so there was a judge involved too, as well as the RSPB.
That’s all very well putting so.e of your own money up but why do you want to stop some thing that is perfectly acceptable for other species
Again your team won’t give an answer to why you won’t to stop people helping hen harriers
Until the excellent response from Mr Wallace, I suggest that nobody has bothered to answer your ridiculous question because it’s based upon a blatant lie.
The courts have now on several recent occasions ruled that Natural England, Defra and Governments are entitled to engage in or facilitate scientifically and ethically dubious practices as long as it is all done in the name of ‘research’. The parallels here with Tom Langton’s challenges against the badger cull are hard to ignore: indeed parts of the judgment appear almost copycat. On badgers, seeing if the almost total extermination of a native mammal species across large areas has any effect on bovine TB infection rates has been determined by the senior courts to be a lawful approach, notwithstanding the clear evidence that there are much more obvious (albeit politically uncomfortable) avenues for tackling the disease. What next? Exterminating wigeon to see if coastal grazing marshes might then sequester more carbon?
Tackling inadequately regulated livestock movement and poor farm biosecurity and tackling raptor persecution on upland shooting estates are two elephants in the same room as Defra and NE. But they cannot be ignored forever.
Indeed, the ‘ha, you lost’ jibes from those who normally have nothing to offer by way of comment on your blog are woefully simplistic and uninformed. Don’t let them put you off continuing to pursue the legal angle (as if you would!). What’s fundamentally wrong has a habit of outing itself eventually, and legal pressure tends to expedite the process. On badgers, for example, the Government is now coming to recognise that the poor results from badger culling cannot continue to be disguised forever and the official syntax around the issue is changing to try and pave the way for an inglorious (if you’ll forgive me) exit from the whole embarrassing and blood stained affair (but not before they kill almost as many badgers again). There can be no doubt that the Langton challenges have brought this realisation forward in the minds of those who might otherwise have been content to let culling continue indefinitely. Similarly, failure to tackle the raptor persecution issue will eventually be a body that floats to the surface so obviously that not even Defra or NE can pretend not to see it any more. Continuing to expose brood meddling for the distraction/deflection that it is may well hasten that process.
Dominic tells it well. You are doing a great job, keep it up please for all of us. The government has escaped again via a back toilet window on a situation as distasteful and nationally important as badger culling. We challenged supplementary badger culling amongst other things 2017-2019 because the evidence base was equivocal and experimental conditions were poor. But an Appeal was refused by the Supreme Court just a few months before DEFRA announced it was phasing it out. Lose, win. We had exposed the poor science and the courts had required the government to ‘adapt and learn’ which is court-speak for ‘sort yourselves out’. Now DEFRA have learnt that badger culling doesn’t work, they have fudged their forward plans with a fanciful ‘risk pathways’ approach to culling 100% of badger locally. But now the APHA pilot Cumbria experiment is a ludicrous fail in 2020 – paving the way for new legal scrutiny. The beauty of the legal pathway is that we all chip in a little or a lot according to circumstances, make good use of the Aarhus Convention, and gain proper access to the basis of decision-making and hopefully then justice. Yes, it is a gruelling and thankless work and all credit, you have done the heavy lifting here. But if government refuses to communicate properly and favour partisan exploiters over professional environmentalists and the concerned public, then there is no alternative. The courts are leaning towards the governments ability to circumnavigate legislation on the back of its retained advice. I.e. you can bend the law if you are the government and an expert or two and a tame panel that you employ thinks there is an experiment to be had. This is dangerous ground and asking the Supreme Court is a natural way to tie up the matter. You may or may not learn more from doing that but supporters will expect you to do so if the potential benefit outweighs any risk. Quite often you think you have lost and then find out you have won because of the pressure you have brought and the learning you have created. It may not be obvious or immediate. I’m sure this is the case with Hen Harrier meddling. Because our wish to see wildlife left alone to flourish is greater than their ability to keep faking and fudging it and stalling urgent response to the UK biodiversity emergency. Kowtowing to selfish and criminal behaviour is failing our wildlife and killing our planet.
If you do decide to follow on, our money will be in the pot. And it is not lost money. At least we have the 2nd prize that the courts and government know they are being watched. I’ll take that and pay for it.
The judges will also know that this was funded with money given willingly by the public and not misspent taxpayers money that we have no say in.
I think the improvement , over the last couple of springs, in the numbers of successfully breeding Hen Harriers in England, is mainly due to a realization by the shooting industry of the effects that increasingly negative publicity may
be having . The licencing of brood management has also provided some reassurance to a number of estates who wish to follow this path.
Increasingly birds are being allowed to settle and breed where, a short while ago , they would have been destroyed, a similar mindset, i feel, is also being applied in autumn and winter on some moors.
In this respect, brood management at present is of benefit , to a degree, things are being learned , and attitudes tested, but it is as much a scientific experiment as Japanese whaling.