Wild Justice victory over unlawful licences for killing of wild birds in Northern Ireland

The Department of Agriculture, Environment and Rural Affairs (DAERA) has conceded Wild Justice’s claim that the decision to issue three general licences on 10 September 2021 that permit the killing of birds in the province is unlawful.

Birds affected by the licences are Hooded Crow, Carrion Crow, Feral Pigeon, Great Black-backed Gull, Lesser Black-backed Gull, Jackdaw, Magpie, Rook, and Woodpigeon, Herring Gull, House Sparrow, and Starling.

DAERA had failed to provide a response, as required by the Judicial Review Practice Direction of Northern Ireland, and conceded the claim shortly before Wild Justice was due to launch formal proceedings in the courts.

DAERA has now written to assure Wild Justice that its flawed general licences will be replaced by interim licences and that a full consultation will be launched in due course.

Wild Justice, represented by Leigh Day acting through their agent Phoenix Law, first raised concerns with DAERA about its approach to general licences for bird killings in May 2019, following a successful legal challenge to Natural England’s 2019 general licences.

Earlier this year, Wild Justice wrote again to DAERA regarding serious flaws in its 2020 general licences, and asked them to revise those due to be issued in September 2021.

DAERA’s response, which came after a long delay and after Wild Justice complained to the Information Commissioner’s Office, made clear that DAERA had failed to comply with the Wildlife (Northern Ireland) Order 1985 when issuing the 2020 general licences. DAERA subsequently launched a mini consultation but withdrew it just days later, stating only that it contained “errors”.

After DAERA issued new licences in September 2021 on precisely the same terms as the 2020 licences, and without any evidence to support the bird species listed, Wild Justice sent a formal pre-action protocol letter challenging DAERA’s decision. The 2021 general licences permitted the killing of wild birds for certain purposes:

• General Licence TGP/1/2021 - killing for the purpose of preserving public health or public safety
• General Licence TGP/2/2021 - killing for the purpose of preventing the spread of disease and preventing serious damage to livestock, foodstuffs for livestock, crops, vegetables, fruit, growing timber and fisheries
• General Licence TGP/3/2021 - killing for the purpose of conserving wild birds.

The species to which all the licences applied are Hooded Crow, Carrion Crow, Feral Pigeon, Great Black-backed Gull, Lesser Black-backed Gull, Jackdaw, Magpie, Rook, and Woodpigeon. Licences 2 and 3 also permitted the killing of Herring Gull, House Sparrow, and Starling.

In their pre-action letter, Wild Justice set out that the 2021 General Licences were unlawful and breached the 1985 Order for these reasons:

• DAERA had not satisfied itself that there was no other satisfactory solution in relation to the killing being authorised for the respective purposes for which the 2021 General licences were issued.
• DAERA did not comply with Section 18(6) of the 1985 Order in that it failed to specify the circumstances and conditions subject to which birds may be killed or the “Area of Use” for the 2021 General Licences. There was no evidence to justify the inclusion of certain species in the 2021 General Licences.
• DAERA failed to seek out the relevant information required to make a decision to grant the 2021 General Licences at all.
• DAERA failed to complete any consultation prior to issuing the 2021 General Licences.

Wild Justice, led by Dr Mark Avery, Dr Ruth Tingay and Chris Packham CBE, welcome DAERA’s decision to withdraw the unlawful 2021 general licences.

Following the concession, Wild Justice said:

“The DAERA General Licences we challenged were not fit for purpose and were unlawful to boot. DAERA seemed to think that Woodpigeons and Feral Pigeons threatened conservation interests in Northern Ireland – a totally bizarre idea. And yet it took a tiny organisation, supported by thousands of people, to raise the money and to hire brilliant lawyers to bring these flawed licences down. We look forward to seeing lawful replacement licences in the very near future. DAERA must do better and Wild Justice remains ready, willing and able to take further legal challenges on behalf of wildlife in the UK.”

Leigh Day Associate Tom Short said:

“Our client welcomes DAERA’s belated concession that its 2021 general licences are not fit for purpose. DAERA had blatantly, as in previous years, failed to follow the process it is required to, and had issued the licences without any evidence to support them. That is not how a licensing system permitting the killing of otherwise protected wild birds should operate, and it is astonishing that DAERA has up until now failed to engage with the problem since it was first raised by Wild Justice in May 2019. Our client welcomes DAERA’s commitment to now reform its licensing and to move to a full consultation on the issue.”