Taking pigeon off the General Licence could lead to the imposition of a close season for the birds
By Charles Nodder
Wednesday, 17 October 2012
How wildlife legislation may affect our sport
Why are we hearing so little about the most fundamental proposals ever made to reform the laws governing UK sporting shooting? Admittedly, public consultation on the Law Commission’s review of wildlife law in England and Wales does not end until 30 November, but its document came out in August, and so far comment in the shooting world has been minimal.
One reason, perhaps, is that the subject matter covered by the Law Commission’s 184-page report is complex and takes time to understand. But make no mistake: the reforms could affect us all. The brief, given to the Commission by DEFRA, was to examine all existing wildlife laws and to present proposals for reform to make them simpler, more logical, more consistent and more flexible. This is what the Commission does for a living and about three-quarters of everything it suggests to Government is eventually reflected in new Acts. So, as the report itself says: “The final output of this project will be legislation.”
A law to govern all
Think of any subject to do with shooting and wildlife law: the dates of the close seasons, perhaps, or the past rows about woodpigeon control and the EU’s attempt, some years back, to force the UK to protect crows and magpies in the spring. Recall the discussions there have been over the years about poaching, the difficulty of getting convictions and the inadequacy of the legal penalties. Add in the tricky issue of releasing gamebirds into habitats where they would probably not normally survive in the wild, or even the common practice of planting non-native gamecrops in UK soils, and you begin to get a picture of just some of the things this review could affect — there are as many more again. Never before has the whole legal background to shooting been thrown into the melting pot all at once.
Let me just say, however, that it is not all bad. For a start, the Law Commission’s analysis of what is wrong with current wildlife law is spot on. There is too much of it; it is confusing, even at times contradictory; it is often at odds with EU regulations and the UK’s international obligations and some of it is chronically old-fashioned. I know from the calls I get from National Gamekeepers Organisation (NGO) members just how hard the existing mish-mash of statutes, some dating back to Victorian times, can be to understand. A set of laws so complex that neither shooters nor the police can always be certain what they mean is surely ripe for reform. And a great deal of what the Law Commission proposes concerning a single new Act of Parliament makes total sense. Why should we have separate Acts for badgers, seals or deer? Surely if a new regulatory basis for legislation can be correctly drawn, it should be suitable for the conservation and management of all species. But “getting it right” is going to be crucial: the stakes are just so high.
Take an example. The Commission says that the way the UK uses General Licences to permit the shooting of woodpigeon and the taking of crows and magpies is probably at odds with the intentions of the EU Birds Directive to which, as members of the EU, we are in thrall. They are probably right. This poses a risk of summary action by the European Court, so the Commission is proposing that we should scrap UK General Licences and instead hunt these species under the wording of Article 7 of the EU directive itself. On the face of it there are some attractions to this. Woodpigeon shooters would no longer have to be in a position to prove they were protecting crops, for example, something that has always sat uneasily in relation to roost shooting for sport, or pulling down an occasional stratospheric pigeon on a pheasant drive. But transposing Article 7 would also mean that these species would have to have a close season coinciding with the period during which they breed.
For woodies, that would imply a close season lasting most of the year, while for crows and magpies it would mean no control in the spring, which is exactly when the gamekeepers need to kill them. The need for some culling in the close season is recognised by the Law Commission, which suggests that the UK Government could allow for it, under EU law, by showing that such control was compatible with the principles of “wise use”. But could that be done to the satisfaction of the European Court without regular population counts of the species concerned and bag returns completed by everyone who killed woodies or corvids during their breeding season? You see the difficulties.
Or what about the practice — fundamental to 83 per cent of UK shoots — of releasing gamebirds? At the moment you can let any animal or bird go provided it is “of a type ordinarily resident in Great Britain in the wild state”. In other words, if the species is living and breeding happily somewhere on our island, or is a regular visitor, we can let it go anywhere (providing it isn’t on a list of real nasties such as mink or coypu). But there is a suggestion in the Law Commission’s report that this wording doesn’t fully meet international conservation obligations and should be changed to prohibit the release of any species outside its natural range. Where might that leave pheasant releasing in areas of the wetter West, where the birds don’t exist in the wild, or the now common practice of putting out redleg partridges, originally birds of the Mediterranean, 1,500ft up a grouse moor? A couple of words altered without due care and significant chunks of current UK shooting practice could come tumbling down.
Farmers and foresters
It won’t just be the shooting world that has concerns. Badger groups are unlikely to give up their own hard-won Badgers Act, as is suggested, without a fight. After all, this might one day allow a more sensible risk-based approach to “their” species’ management. Nor are farmers’ and foresters’ representatives likely to be thrilled at the proposed removal of the defence, which currently allows them a get-out clause for ploughing or felling whenever a protected species is harmed “as an incidental result of a lawful operation that could not reasonably have been avoided.”
There are things in the review, too, that I think will worry the RSPB, but I’m not going to do their work for them by mentioning them!
But there are also some massive upsides in the proposals as well. The redefinition of gamebirds as wild birds, rather than a separate category defined in 19th century law could, if done correctly, legitimise catching-up under licence outside the shooting season. The suggestion that poaching offences are simplified would make the burden of proof much easier; while bringing fines and imprisonment for poaching into line with the much more serious penalties for other wildlife crimes could be a huge deterrent. The overall legal simplification proposed would be welcome too, provided it could be done effectively, and bringing our statutes more closely into line with their parent EU directives would make the law in England and Wales less vulnerable to unforeseen and un-controlled interference by the European Court.
So it’s all to play for. Wildlife law reform is up and running and, whatever happens, its impacts will be considerable. We have to make sure that the process turns out right and there is still a lot of scope for that. For a start, the Law Commission is only now seeking comments from organisations and the public on its proposals. Well-founded arguments about the need to readjust them will be heard and will be reacted to — that is the Law Commission’s way. Then eventually, the process — which has already taken two years — will result in a draft Bill for Parliament to debate. That too presents great opportunities for changes, both good and bad, as anyone who can remember the debates over the 1981 Wildlife and Countryside Act will agree.
One of the key questions in all this is under what political leadership those debates may one day take place. The Law Commission’s draft Bill is not due till 2014 and it may be some time after that before Parliamentary time is available to debate it, so the likelihood of the current coalition still being in power is slim. Votes in Parliament, and indeed at the next General Election, will thus have a fundamental impact on the future of all our sport.
Let me end, however, on a positive note. One reason you have not heard much about all this — yet — is that our representative shooting bodies are already working doggedly through the Law Commission’s report with finetooth combs, finding the good bits to support and identifying the bad bits that will need, one way or another, to be excised. And they are working on this together, meeting and sharing their collective expertise so that nothing is missed.
As well as considerable threats, there are massive opportunities in this whole process. The co-ordinated work of our representative bodies provides the best hope that shooting will emerge unscathed or even stronger.
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