RSPB response to Defra consultation on changes to game licensing and game management
1. Introduction The RSPB welcomes this opportunity to respond to Defra’s consultation on changes to game licensing and game management in England and Wales. The RSPB is Europe’s largest wildlife conservation charity. With the support of more than one million members, we conserve and enhance the populations of wild birds, other wildlife and the habitats in which they live. We focus on priority species, habitats and sites, and set clear conservation objectives and actions. These include taking action to protect threatened species at national and international level, owning and managing land as nature reserves and influencing land-use practices and government policies to benefit wildlife and the wider countryside. We are partners in conservation programmes for several game birds, including black grouse in England and Wales. We are joint Lead Partner for the black grouse Biodiversity Action Plan, with the Game Conservancy Trust. The RSPB is the UK Partner of BirdLife International.
The RSPB believes that Part I of the Wildlife and Countryside Act (WCA) 1981 lies at the core of legislation to protect wild birds in England and Wales. We consider that it has been a significant factor in the recovery of many species, and is a critical component in the transposition of the EC Birds and Habitats Directives into domestic law. The Game Act 1831, by contrast, is outdated in respect of many of its provisions, and does not provide adequate protection for wild game birds. We believe that legislation needs to change to keep pace with a changing environment and will actively support any amendments to legislation that enhance the protection of biodiversity.
Our support for Defra’s proposed changes to game licensing (set out in Part 1) is qualified. While we understand Defra’s desire to scrap outdated and ineffectual licensing requirements under the Game Acts, we believe that Defra should do more to ensure it is delivering its obligations under the EC Birds Directive and Sustainable Hunting Initiative. We urge Defra to consider the merits of introducing a compulsory licensing scheme for all game shoots in England and Wales, and to conduct a full review of the impact of shooting on game and quarry species. We believe the latter is a prerequisite to any loosening of restrictions on dealing in game birds during the close season. We believe that changes to the WCA 1981 are required to complement Defra’s proposed changes to the Game Acts, and ensure that protection for wild game birds is enhanced. We are therefore concerned that there is currently no legislative opportunity to achieve this.
We note that the WCA 1981 plays an important role in regulating hunting of species listed on Schedule 2(I), and believe it is entirely consistent for species currently covered by the Game Act 1831 to be brought under the same protective and regulatory framework. This is desirable given the poor conservation status of several game birds, particularly black grouse, grey partridge, common snipe and woodcock, the populations of which have declined significantly over recent decades. We therefore welcome the opportunity to comment on Defra’s proposed changes to game management (set out in Part 2) at this early stage, and strongly support the need for a further consultation on subsequent legislative changes to the WCA 1981.
Our comments follow the response form included at Annex B to the consultation document.
2. Part 1: Changes to game licensing (RRO proposals)
Proposal A: Remove the requirement to hold a game licence to take or kill game.
While we understand Defra’s desire to scrap outdated and ineffectual licensing requirements,we do not feel that the current low level of regard for the licensing system amongst hunters and low level of enforcement by the police are satisfactory reasons for scrapping it. The opportunity to hunt birds is not a right – the EC Directive on the Conservation of Wild Birds (79/409/EEC) makes clear the circumstances under which hunting is permissible. It brings a duty of care towards quarry species, and places a responsibility on both Member States and those who hunt to ensure that the populations of quarry species are conserved. The Wildlife and Countryside Act (WCA) 1981 establishes the necessary protections and offences to achieve this (other than currently for game birds) in England and Wales.
Should an individual be convicted of an offence when in pursuit of quarry, the courts should be able to punish that individual by removing their opportunity to hunt birds. In the absence of an effective game licencing system, an alternative means of achieving this is needed, such as disqualification from owning or possessing a firearm upon conviction and/or the introduction of a new offence similar to that contained in Section 7(3) of the WCA 1981. This would prevent those convicted of an offence from killing or taking quarry for a set period.
Should the proposals in Part 2 to the consultation document be progressed, we believe Section 2(1) of the WCA 1981 should be amended to read: ‘subject to the provisions of this section, an authorised person shall not be guilty …’. This would require hunters to obtain authorisation from the landowner or occupier to shoot quarry, and bring offences pertaining to quarry species (including game birds) into line with those for other species.
An improvement on licensing individuals would be to license game shoots. We strongly believe that game shoots should adhere to a set of commonly agreed standards, including compliance with Parts I and II of the WCA 1981. We note the introduction of the Game Shoots Standards Assurance Scheme 1, and await evidence that participating shoots are operating within the law. However, the evidence to date demonstrates that many do not. Illegal persecution is primarily responsible for the very low numbers of hen harriers breeding successfully in England. Monitoring by English Nature suggests that 60% of hen harrier nesting attempts on moors away from Bowland fail due to adult birds disappearing – an unnaturally high rate of loss which can only be explained by illegal persecution 2. Of 39 convictions for offences against birds of prey in
1 http://www.cla.org.uk/gameshootstandards/default.htm 2 http://www.english-nature.org.uk/news/story.asp?ID=827 England and Wales between 2000 and 2006, 23 (59%) were of gamekeepers or others employed by the game shooting industry 3.
We suggest that Defra assesses the merits of introducing a compulsory licensing scheme for all game shoots – both upland and lowland – in England and Wales. Failure to adhere to agreed standards, including legislation governing the protection of quarry species and birds of prey and use of lead shot, should result in courts having the option to withdraw a shoot’s licence to operate. Such a scheme could also be used to mandate the provision of bag records on an annual basis, as a requirement of licence renewal, enabling Government to ensure it is delivering its obligations under the EC Birds Directive and Sustainable Hunting Initiative.
Proposal B: Remove the requirement for a local authority licence and an excise licence in order to deal in game.
We have no objection to the requirement for a licence to deal in game being removed. We note, however, that this will allow those convicted of an offence (eg selling a bird that had been unlawfully killed) to continue to deal in game. In other words, the option to withdraw a licence to deal upon conviction will no longer exist, and the deterrent value of this option will be lost.
Should the proposals in Part 2 of the consultation document be progressed, and the definition of ‘wild bird’ in Section 1(1) of the WCA 1981 be amended to include game birds, sales controls under Section 6(2) will apply. As with sales of dead birds for taxidermy, sales of game birds for human consumption could be controlled under the terms of a licence issued under Section 16(4). We suggest that a new offence similar to that contained in Section 7(3) be introduced, preventing those convicted of an offence from dealing in game birds for a period of five years.
Proposal C: Remove the restriction on dealing in game birds and deer during the close season, permitting sale all year round provided they were lawfully killed.
We object to the restriction on dealing in game birds during the close season being removed, and do not see how Defra can determine that this will have no impact on the conservation status of game birds. We do not believe that Defra is in possession of sufficient facts to conclude this, and are particularly concerned that it has done so for black grouse in light of its listing on Annex III/2 of the EC Birds Directive. Article 6 requires Member States to consult the EC with a view to examining jointly whether the marketing of black grouse specimens would result or could reasonably be expected to result in the population levels, geographical distribution or reproductive rate of the species being endangered throughout the Community. We would expect to see the EC’s recommendation as part of Defra’s consultation on advanced RRO proposals, yet Defra admits (paragraph 76) that this process is not complete. This is unacceptable, and not conducive to an open exploration of the issues around marketing of black grouse.
Article 7 of the EC Birds Directive requires Member States to ensure that hunting is compatible as regards the populations of quarry species, and that it does not jeopardize conservation efforts in
3 Figures derived from the RSPB’s Species Protection Database. their area of distribution. There has not been a review of the impact of shooting on the conservation status of game or quarry species in the UK for over 25 years, since the WCA 1981 came into force. The conservation status of several quarry species, particularly black grouse, grey partridge, common snipe and woodcock has worsened significantly over recent decades 4, 5, and the question of whether shooting of these species should continue to be permitted under legislation has yet to be answered.
We believe Defra should conduct a full review of the impact of shooting on game and quarry species. Following the conclusion of a review, and any consequent changes to the species covered by the Game Act 1831 and Schedule 2(I) to the WCA 1981, we would be prepared to reconsider our objection to this proposal.
Should the proposals in Part 2 of the consultation document be progressed, and the definition of ‘wild bird’ in Section 1(1) of the WCA 1981 be amended to include game birds, existing possession and sales controls will apply. While we support the introduction of an offence covering sale of game birds that have been unlawfully killed, we would rather this be achieved by bringing game birds under the WCA 1981, as opposed to adding a new offence to the Game Act 1831, the provisions of which are outdated. The offence should also apply to birds taken or killed in circumstances which constitute an offence under the Environmental Protection (Restriction on Use of Lead Shot) (England) Regulations 1999 (as amended) and the Environmental Protection (Restriction on Use of Lead Shot) (Wales) Regulations 2002.
Taking this route negates Defra’s question concerning burden of proof, and achieves consistency with possession and sales offences under Sections 1(2) and 6(2) of the WCA 1981. We believe the burden should fall partly on a game dealer to show that he did not know nor had reason to believe that a bird was unlawfully killed or taken prior to sale. Defra recognises that it would be ‘very difficult’ for the prosecution to prove all elements of an offence (paragraph 73), restricting the number of cases that could be brought and failing to achieve increased protection for game birds. Offences relating to possession and sale of dead wild birds are well established under the WCA 1981, and are supported by a High Court decision concerning the meaning of ‘possession’ 6. This places a burden, though only on balance of probabilities, for a person to show that their possession of a dead wild bird is lawful.
We agree that the maximum penalty should be the same as for other wildlife offences under the WCA 1981, ie a person convicted of the offence would be liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both.
We have no comment on the proposal to remove the restriction on dealing in deer.
4 http://www.rspb.org.uk/action/inthered.asp 5 GREGORY RD, WILKINSON NI, NOBLE DG, ROBINSON JA, BROWN AF, HUGHES J, PROCTER D, GIBBONS DW and GALBRAITH CA (2002) The Population Status of birds in the United Kingdom, Channel Islands and Isle of Man: an analysis of conservation concern 2002-2007. British Birds 95: 410-450. 6 Kirkland v Robinson 1986. 3. Part 2: Changes to game management (options being consulted on)
While we welcome the opportunity to comment on Defra’s proposals at this early stage, we strongly support the need for a further consultation on any subsequent legislative changes.
Proposal A: Options for retaining close seasons for game birds within the Game Act 1831 or transferring them into the WCA 1981.
We strongly support Defra’s intent to retain close seasons for game birds in the legislation, this is required to transpose the requirements of the EC Birds Directive into domestic legislation. We agree the merit in having close seasons set out in one piece of legislation, and in standardising maximum penalties.
Option 1: Do nothing and retain the close seasons within the Game Act 1831. We do not support this option, as it does not improve the protection afforded to game birds.
Option 2: Retain the close seasons in the Game Act 1831 and increase maximum penalties. We do not support this option, as raising the deterrent effect of penalties is, on its own, insufficient to improve the protection afforded to game birds.
Option 3: Retain the close seasons in the Game Act 1831 and add provisions equivalent to those currently in the WCA 1981 for protecting quarry species. We do not support this option, as it involves adding new provisions to outdated legislation, requiring primary legislative time. We would prefer to see provision made for game birds in the WCA 1981, bringing protection for game birds into line with that for other quarry species.
Option 4: Add a new part to the WCA 1981 specifically dealing with game bird species in which close seasons, and other relevant provisions would be set out. We do not support this option, which seems overly cumbersome compared to option 5.
Option 5: Move close seasons into the WCA 1981 and treat game birds in a similar way to quarry species. We support this option as it achieves a consistency of approach to the protection of quarry species and should make legislative requirements clearer both to those who have to abide by them and those charged with enforcing them. We support an extension of the definition of ‘wild bird’ to include those game birds not covered by the WCA 1981 (in particular black grouse, red grouse, grey partridge and ptarmigan), and note that Sections 5 and 16 of the WCA 1981 already apply to game birds. We also note that the EC sent a final written warning to the UK Government in 2004 because the WCA 1981 ‘is not strict enough concerning trading in wild birds and species’ 7. The EC highlighted that ‘certain game species are not covered by the provision on the prohibition on trade’ contained in the WCA 1981. Extending the definition of ‘wild bird’ is required if the UK is to deliver its obligations under the EC Birds Directive.
7 http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/04/128&format=HTML&aged=0&language= EN&guiLanguage=en We support the standardisation of maximum penalties, and provision to be made for the Secretary of State to amend close seasons for game birds by order, as is the case currently for birds on Schedule 2(I) to the WCA 1981. This provision is important in the context of climate change, and the potential for the period of reproduction for game birds to shift in line with climatic trends. It also provides a means of reducing hunting pressure on species of high conservation concern, such as black grouse and grey partridge 8, through the declaration of a period of special protection should this become necessary. If this option is progressed through primary legislation, and the definition of ‘wild bird’ and Schedule 2(I) amended to include game birds, then presumably Sections 2(5), 2(6) and 2(7) of the WCA 1981 will apply to game birds.
We do not understand Defra’s analysis of provisions for licensed control of game birds (paragraph 268). The definition of ‘wild bird’ in Section 27 of the WCA 1981 excludes game birds, except with regard to the provisions of Sections 5 and 16. The provision to control game birds under licence already therefore exists. We have no objection to the defences contained in Section 4 of the WCA 1981 being applied to game birds, should option 5 be progressed.
Proposal B: Retain or remove the restriction on shooting game on Sundays and Christmas Day.
While we understand Defra’s desire to review the merits of allowing game to be shot on Sundays and Christmas Day, we question whether Defra is in possession of sufficient facts to conclude no conservation impact is likely to result (paragraph 270).
Should the proposals in Part 2 be progressed, and the definition of ‘wild bird’ in Section 1(1) of the WCA 1981 be amended to include game birds, the Secretary of State will be able to set restrictions on shooting at the county or borough level under Section 2(3). The existing restrictions partly reflect the rights of other countryside users to enjoy quiet recreation without the disturbance caused by hunting activity – we have long supported these rights (eg during the passage of the Wildlife & Countryside Bill in 1980) and believe they should be safeguarded.
Proposal C: Repeal provisions about the appointment of gamekeepers.
We support the provisions concerning the appointment of gamekeepers being repealed.
4. Additional comments
A) Do the proposals put forward maintain necessary protections for those affected?
We can only answer this for the proposals contained in Part 1 to the consultation. We are unable to conclude whether the proposals maintain necessary protections for the bird species affected,
8 GREGORY RD, WILKINSON NI, NOBLE DG, ROBINSON JA, BROWN AF, HUGHES J, PROCTER D, GIBBONS DW and GALBRAITH CA (2002) The Population Status of birds in the United Kingdom, Channel Islands and Isle of Man: an analysis of conservation concern 2002-2007. British Birds 95: 410-450. as we do not see how Defra can determine that these will have no impact on the conservation status of game birds. There has not been a review of the impact of shooting on the conservation status of game or quarry species for over 25 years, since the WCA 1981 came into force, and the question of whether shooting of these species should continue to be permitted under legislation has yet to be answered. We believe a full review of the impact of shooting on game and quarry species should be conducted to inform updates of the Game Act 1831 and WCA 1981.
To answer this for the proposals contained in Part 2, we would require sight of Defra’s preferred options for legislative change and accompanying legal drafting.
B) Do the proposals put forward prevent any person from continuing to exercise any right or freedom which he might reasonably expect to continue to exercise?
We can only answer this for the proposals contained in Part 1 to the consultation. We believe that the proposals do not prevent any person from continuing to exercise any right or freedom which he might reasonably expect to continue to exercise. The introduction of an offence, covering sale of game birds that have been unlawfully killed, will not in our view impact on a game dealer’s rights or freedoms. As concluded in the consultation paper (paragraph 247), dealers should not reasonably expect to be able to lawfully sell unlawfully taken game birds. We also believe that the rights of other countryside users to enjoy quiet recreation without the disturbance caused by hunting activity should be safeguarded.
To answer this for the proposals contained in Part 2, we would require sight of Defra’s preferred options for legislative change and accompanying legal drafting.
C) Game licensing (birds): Proposal C considers imposing a new burden in the form of a new offence of selling game birds which have been unlawfully killed or taken. It also considers whether a new burden of proof should fall on the dealer to show that he did not know nor had any reason to believe the bird was unlawfully killed or taken (rather than the prosecuting authority showing that it was). Your views on whether the tests of proportionality, fair balance and desirability are satisfied are sought.
We believe that this new burden is justified against the tests outlined: dealers should not reasonably expect to be able to lawfully sell unlawfully taken game birds. Dealers are used to operating within the requirements of the law for quarry species, and bringing legislation covering game birds into line with that covering other quarry species should simplify matters. We also believe the burden should fall partly on a game dealer to show that he did not know nor had reason to believe that a bird was unlawfully killed or taken prior to sale.
D) Game licensing (deer): Proposal C considers whether to reinstate the reporting provisions of section 11 of the Deer Act 1991 to all dealers in venison in addition to those reporting requirements required under the food hygiene regulations. Your views on whether the tests of proportionality, fair balance and desirability are satisfied are sought.
No comment. E) Game management: Proposal A considers 5 options for the future protection of game birds. Options 2 to 5 could all involve the imposition of new burdens to a greater or lesser extent. Your views on whether the tests of proportionality, fair balance and desirability in relation to each of these potential new burdens are satisfied are sought. i) Increase of maximum penalties. We believe that this new burden is justified against the tests outlined: the maximum penalties allowed under the Game Act 1831 are pitifully small compared to those allowed under the WCA 1981, and we think it entirely reasonably that they be increased in line. The deterrent effect of having higher maximum penalties will be greater, leading to greater protection for game birds. ii) Injuring game birds. We believe that this new burden is justified against the tests outlined: there is no justification for game birds to be treated differently to other wild birds in terms of the basic protection afforded by Section 1(1)(a) of the WCA 1981, when the defence under Section 2(1) covers species included on Schedule 2(I) to the Act. iii) Protection of nests. We believe that this new burden is justified against the tests outlined: there is no justification for game birds to be treated differently to other wild birds in terms of the basic protection afforded by Section 1(1)(b) and (c) of the WCA 1981, when legitimate game management activities, such as taking game bird eggs for rearing in captivity, can be enabled under a Section 16 licence. For species of high conservation concern (eg black grouse or grey partridge), individual licences should be required. iv) Protection of eggs. We believe that this new burden is justified against the tests outlined: comments as for iii) above. v) Possession of game birds and their eggs. We believe that this new burden is justified against the tests outlined: comments as for iii) above. The defence under Section 2(1) which covers species included on Schedule 2(I) to the WCA 1981 would also apply.
F) Do you have any views on the costs and savings set out in Chapter 2 in Part 1 and Part 2 of this consultation document and as addressed by the partial Regulatory Impact Assessment attached at Annex E?
No additional comments.
G) Are there any other benefits that would be gained from the proposals in Part 1 and Part 2?
No additional comments.
RSPB Species Conservation Department 20 October 2006