Legislation| PPC96 August 2019

Since April this year, it’s been all hands on deck in the pest management world, getting to grips with changes in bird control licences and the way we manage pest birds.

Now that we have some new general licences, surely it’s business as usual? Not quite.

Communications Officer, Kathryn Shaw takes a look at all things bird licence; where did they come from? Where did they go? What’s the same? What’s new?

SPEED VIEW

• All birds, nests and eggs are protected by law
• General licences were developed in the 90s to avoid having to apply for individual licences
• General licences did not allow killing or trapping with impunity
• This year Wild Justice claimed the old licences were unlawful, as there was no way of checking they were being used correctly
• On 23 April, Natural England announced GL04, GL05 and GL06 would be withdrawn
• Three new general licences have been published by Defra – but with key differences
• Before and alongside new licence use “reasonable endeavours must continue to be made to achieve the purpose in question using lawful methods” – ie non-lethal methods of control.

There’s been a lot of concern about the way the old licences were revoked and uncertainty about what would come next.

Now we’ve had new licences published, it’s more important than ever that pest management professionals understand the licences we use to control and manage these protected species.

That’s why we’ve put together this bumper article with the who, what, where, why, when and how of general licences for bird control.

Let’s start from the beginning.

Wildlife and Countryside Act 1981

Our brief history lesson begins in 1979 when the UK adopted the European Directive on the Conservation of Wild Birds.

The directive included provisions on the protection of vulnerable species, protection for all wild birds and restrictions on killing/selling and keeping wild birds.

For the UK to comply with the terms of the directive, several pieces of legislation were drawn up and passed in Parliament.

As part of this, the Wildlife and Countryside Act 1981 was born.

Natural England and general licences

Nevertheless, in the interests of public health, exceptions were needed for pest controllers, farmers and gamekeepers to be able to continue doing their jobs.

For the majority of bird species, it is necessary to apply for a specific licence to carry out lethal control and, in England, Natural England operates that licensing system.

Ongoing monitoring of bird species in the UK means that the list of approved birds fluctuates...

However, a system was developed in the 1990s by Natural England in response to the need for a wider application of bird control without having to apply for individual licences.

These were the general licences.

The three licences permitted the legal control of protected bird species of low conservation concern to:

• Protect public health and safety
• Prevent serious damage and disease
• Protect plants and wildlife.

Crucially, the general licences did not give people a licence to kill or trap birds with impunity.

You needed to be able to identify the species of bird as being eligible for control and you needed to have a valid reason, like the ones identified above.

Ongoing monitoring of bird species in the UK means that the list of approved birds fluctuates, with some birds falling off the list only to return once they’re determined to have recovered numbers.

And anyone carrying out control of birds must still follow animal welfare laws, making sure that birds are dealt with in a quick and humane manner.

Wild Justice legal challenge

In February 2019 Wild Justice, a not-for-profit company set up by wildlife campaigners Chris Packham, Dr Mark Avery and Dr Ruth Tingay, sent a ‘Pre Action Protocol’ letter to Natural England.

In this letter, they claimed that the licences (GL04, GL05 and GL06) were unlawful, as there was essentially no way of auditing that the licences were being used for the limited purposes set out in law.

Wild Justice also believed that the licences did not allow Natural England to ensure that birds were only killed after non-lethal means had been tried or properly assessed.

In essence, the challenge was not against the basic principle of general licences, but Wild Justice believes that the level of control offered by individual licences is much greater.

The group states that it didn’t want to change the law but wanted to see the law implemented correctly.

Natural England responded to the letter in March, which Wild Justice deemed to be inadequate.

And so they sought permission from the court for a judicial review of their decision.

On 23 April, Natural England announced the General Licences GL04, GL05 and GL06 would be withdrawn two days later (what we call in the BPCA office ‘a big news day’).

In essence, the challenge was not against the basic principle of general licences, but Wild Justice believes that the level of control offered by individual licences is much greater.

Industry reaction

The decision to revoke the general licences came out of the blue, even for Wild Justice.

Pulling the licences at such short notice, with no immediate alternative in place, rightfully caused panic across the pest management industry.

As part of a longer statement released at the time Ian Andrew, BPCA Chief Executive said:

“We’re concerned that well trained and experienced pest management professionals will unwittingly be breaking the law while trying to protect their clients because of the lack of warning or due process.

“We believe the professional judgement of a proficient, trained and experienced pest management company, like a BPCA member, should be enough to satisfy the condition that all other bird management options have been exhausted before lethal action is taken.”

The revocation of the General Licences was a controversial move, which spurred more extreme pro-shooting groups to send death threats to Chris Packham, famous for presenting BBC Springwatch.

Critically it seemed like it could leave the pest management sector, for an unknown period of time, with no legal way of controlling birds.

This would impact the agricultural sector, food premises, construction projects and many other businesses or industries that relied on timely pest control to operate safely.

Section 4 defence

Natural England began working on new general licences. But in the interim, there was a lot of confusion among pest management companies about what legal avenues remained open for them with regards to bird control.

People were urged to apply for an individual licence if necessary and, in limited circumstances, people could potentially cite a ‘section 4 defence’ as a means of undertaking urgent action against pest birds.

In brief, section 4 of the Wildlife and Countryside Act 1981 states that it is not an offence to kill or take wild birds as long as it falls under very specific circumstances.

These include situations where you’ve taken a bird that has been injured by a third party and needs nursing back to health before release, for example. Or if you’d killed a bird that has been injured by a third party and had no chance of recovery.

...it could give pest management professionals a means to continue in their role while waiting for individual licence applications to be processed and the new general licences to be issued.

It also states that you can control birds if you can prove that it is necessary to protect public health and safety, prevent serious damage to livestock or halt the spread of disease.

Section 4 is by no means a license for anyone to kill or take any bird without method or reason, but it could give pest management professionals a means to continue in their role while waiting for individual licence applications to be processed and the new general licences to be issued.

This was the advice BPCA issued to all member companies so they could continue their work.

New general licences

At the end of April and the beginning of May, Natural England released three general licences.

These would be the first new general licences issued and were much more specific with regards to what types of birds could be controlled and for what purpose.

Natural England had been making an effort to engage with the sector and get out licences which covered most pest management situations.

A full schedule of new licences was published, with licences for feral pigeons and gulls being thankfully close to the top of the list.

BPCA had spoken and met with Natural England several times to ensure licences for feral pigeons and gulls were prioritised and fit for purpose.

We were given access to draft licences for comment.

Defra takeover

On 4 May, another surprise came in the form of Secretary of State Michael Gove, who had the Department for Environment, Food and Rural Affairs (Defra) take over responsibility for the revoked general licences from Natural England.

This caused concern, as talks between Natural England and affected parties had been going well, and a rough timeline for the rest of the licences had been agreed.

Nevertheless, Defra ploughed ahead and made a call for evidence on the impact of Natural England’s decision to revoke the general licences, receiving over 6,000 responses to that request.

BPCA published an open letter in response to that call, with the support of many BPCA member companies. You can read it in full on the BPCA website.

Following the call for evidence and the overwhelming response received, Defra released three new general licences for bird control on 4 June.

These were a more in-depth version of the newly released licences from Natural England the previous month and covered multiple species of the bird under each provision.

As of publication, the new general licences allow the following:

Species not included

The new licences are available to use now, and any bird species not covered by these licences can still be controlled by applying for the individual licences.

• WML GL36 Serious damage – does not include jay, collared dove and lesser blackbacked gull
• WML GL35 Public health or public safety – does not include jay, wood pigeon, collared dove, lesser black-backed gull and herring gull
• WML GL36 Conservation – does not include feral pigeon and lesser black-backed gull.

 Gull control

Notably, gulls have been excluded from all three.

Defra has attributed this to their poorer conservation status and has assured the industry that a new class licence for gulls will be ready in time for the breeding season in 2020.

Class licences have a bad reputation in terms of the difficulty in applying for them, however assurances have been made by Defra that these new class licence application processes will be much more user-friendly.

Areas excluded for licence

Another change to the new general licences is which locations are not included; Special Areas of Conservation (SACs), Special Protection Areas (SPAs), Ramsar sites or any area within 300 metres of any of these.

If you have applied for an individual licence which covers these you can still use it and, as before, you still need to have consent from Natural England to carry out the activity on Sites of Special Scientific Interest (SSSI).

Although this is not necessarily usual work for the majority of pest management companies, it is still worth keeping in mind.

Reasonable measures

New conditions were included in the three new general licences, which it was hoped would prevent future legal challenges.

It is now required that before and alongside their use “reasonable endeavours must continue to be made to achieve the purpose in question using lawful methods” not covered by the licences.

This condition is about making sure that people are doing everything practicably possible before taking or killing a wild bird.

In practice, it means taking that ‘risk hierarchy’ approach, which is something that BPCA members do as standard.

New conditions were included in the three new general licences, which it was hoped would prevent future legal challenges.

But now it’s been made clear as a condition of the new licences, so it’s advisable to record all non-lethal action taken before using lethal methods of control.

You don’t have to try non-lethal measures if impractical, ineffective or disproportionate to do so, but you should document why you’ve chosen lethal control in your site report.

What does the future hold?

We know that the general licences released by Defra will only be valid until 29 February 2020.

A statement from Defra explained that they will be leading a review of the longer-term general licensing arrangements, which will be launched this summer with an initial public consultation.

BPCA will be involved in talks with both Defra and Natural England to make sure new measures are fit for purpose for our members.

In the meantime, the new conditions of the licences could actually generate some positive business opportunities for members.

Where customers want a quick, lethal solution to a bird problem (and you’ve struggled to explain to them why you need other methods first), you can now use this information to help sell non-lethal solutions.

This, in turn, should help increase your bottom line.

Need support with bird work or licences?

BPCA members have access to a technical team that’s always in direct contact with Natural England and Defra.

If you need advice you can trust, contact us today.

enquiry@bpca.org.uk

Source: PPC96