I am writing to you concerning the legal case which has recently been brought against Natural England over the way that they have issued general licences for controlling certain species of wild birds.
The legal basis on which Natural England had issued these licences has been challenged through a Judicial Review brought by the organisation Wild Justice.
First introduced by MAFF in the 1990’s, general licences are used for activities that carry a low risk to the conservation or welfare of a protected species. General licences are published on gov.uk and unlike individual licences, users do not need to apply for a general licence or report on its use, but they must comply with the terms of the licence.
The use of general licences is provided for in the Wildlife and Countryside Act 1981 (WCA). They have existed in their current form, with the contested condition or similar, since around 2004. Natural England took on responsibility for general licenses in 2008 and last reviewed them in 2014.
Wild Justice contended that the general licences were unlawful as the licensing authority (currently Natural England) has failed to comply with section 16 (1A)(1) to the WCA:
(1A)The appropriate authority –
shall not grant a licence for any purpose mentioned in subsection (1) unless it is satisfied that, as regards that purpose, there is no other satisfactory solution”
In order to exercise the power, Natural England must be satisfied that there are no satisfactory alternative solutions. Natural England’s approach was to cover this through a condition in the general licence which requires users to be satisfied that appropriate legal methods of resolving the problem such as scaring and proofing are either ineffective or impracticable.
Wild Justice argued that in leaving the decision as to whether alternative solutions are ineffective or impracticable to the licence user, Natural England has not complied with section 16(1A) 1 to the WCA and that therefore the licences are unlawful.
The advice provided to Natural England stated that Wild Justice had a strong argument. This led Natural England to the decision that it had no option other than to revoke these licences. Leaving the licences in place would mean that users could not be assured that actions taken under the licence were lawful.
While the case brought by Wild Justice is concerned with the general licences issued in 2019 it highlights a potential legal deficiency in the licences which may date back to 2004, when the contested licencing condition was introduced by the Labour Government.
Natural England is an independent body charged by statute with promoting conservation. It has to accept the legal position in this instance, but nevertheless fully recognises that this action is deeply concerning to those planning to use these licences. Natural England is therefore moving quickly to minimise short term disruption to those who have a legitimate need to lethally control wild birds. They are determined to ensure that a robust system of general licencing is in place.
Natural England is working at pace to undertake licensing assessments to enable the permitting of lethal control of certain bird species in defined situations. For example, to prevent serious damage to livestock from carrion crows and to preserve public health and safety from the impacts of feral pigeons. Natural England is prioritising circumstances that are likely to be of the greatest need and impact at this time of year. They will start issuing these new general licences on gov.uk from next Monday.
In the meantime, where action is not covered by a general licence, those in need will be able to apply for an individual licence using a simplified process on gov.uk. In limited circumstances, applicants may be allowed to undertake urgent action in accordance with the existing requirements of section 4 of the WCA.
Work on the three general licences in question will form the first part of a wider review of general and class licensing by Natural England, due to be completed this year.
Wildlife licensing is a devolved issue. While this legal challenge only directly applies to England, it may raise questions about parallel processes in the Devolved Administrations.
I hope this letter provides reassurance that we are fully aware of the implications of the withdrawal of these licences, and the concern this has caused many who rely on them to legitimately control certain wild birds. My department is working with Natural England to ensure that satisfactory alternative arrangements are in place as soon as possible.
Natural England’s enquiries helpline is enquiries@naturalengland.org.uk.
With every good wish,
Michael Gove