Wildlife and nature conservation law

The legal challenge was not concerned with the wider merits, or otherwise, of the use of general licences as a regulatory tool in line with the requirements of the Wildlife and Countryside Act 1981 (the ‘Wildlife Act’). Rather, the legal challenge concerned the lawful basis on which three particular general licences were granted by Natural England on 1 January 2019; namely General Licences GL04, GL05 and GL06 (the ‘General Licences’).

The Wildlife Act provides for the protection of birds and prevention of poaching. The Wildlife Act makes it a criminal offence to intentionally kill a wild bird, but provides for an exception to this where the appropriate authority has lawfully granted a licence and the killing is in accordance with the terms of that licence.

Natural England is only permitted to grant licences for specific narrow purposes listed in the Wildlife Act, such as preventing serious damage to crops. Natural England’s power to grant the General Licences is dependent on Natural England first being satisfied that there would be no other alternative solution to killing the wild birds covered by each General Licence for each specific purpose listed in the respective licence during its operation.

Before granting the General Licences in 2019, Natural England did not consider that matter at all, let alone properly satisfy itself. As Natural England had not met the condition of first satisfying itself, it was not permitted in law to grant the General Licences. Wild Justice contended that the General Licences were therefore unlawful.

On 13 February 2019, Wild Justice sent Natural England a Pre-action Protocol letter setting out its legal concerns about the General Licences. Wild Justice asked Natural England to do two things: (1) accept that the General Licences were granted unlawfully; (2) replace them with a lawful alternative once they expired on 31 December 2019. It was of course open to Natural England to demonstrate that it had in fact satisfied itself before granting the General Licences.

On 13 March 2019, Natural England responded in writing to Wild Justice’s pre-action protocol letter. Natural England’s letter followed a confidential ‘without prejudice’ meeting that Wild Justice attended to discuss its concerns with Natural England. In its written response, Natural England accepted that it needed to be satisfied that there are no other satisfactory solutions before issuing the General Licences. Natural England did not, however, say that it had satisfied itself, nor did it provide any evidence that it had done so. Instead, Natural England omitted to indicate what its position was regarding the substance of Wild Justice’s legal argument: it did not concede the legal point or provide evidence for the lawfulness of the 2019 General Licences.

Natural England stated in its letter that it intended to review the General Licences later in 2019. Natural England declined to provide any detail about its intended review of the General Licences, or to indicate when Natural England had decided there would be such a review.

It is in everyone’s interest that licences granted by Natural England are lawful. Legal proceedings were an appropriate way to secure legal certainty in the absence of a clear response by Natural England to the concerns raised by Wild Justice in pre-action correspondence.

Legal proceedings of this kind must be brought within three months of the decision subject to scrutiny; in this case, the three months started to run from 1 January 2019 when Natural England granted the General Licences. To ensure the claim was filed in good time, Wild Justice filed proceedings in court on 21 March 2019 after carefully considering Natural England’s formal pre-action response of 13 March 2019.

On 23 April, the day before Natural England was due to file its legal grounds defending the claim, Natural England wrote to Leigh Day to concede the claim. Natural England had not been able to demonstrate that it had satisfied itself that there were no other satisfactory solutions before granting the General Licences. The claim was subsequently withdrawn from the court by consent.

At almost exactly the same time on 23 April, Natural England separately made a public announcement that it had decided to revoke the three General Licences starting two days later from the end of 25 April and that, on an interim basis, anyone wanting to kill any of the species formerly listed on those General Licences would need to apply for and receive a specific licence from Natural England. Natural England also publicly announced that a longer-term review of general and class licences is planned. The scope and timing of that review is yet to be announced.

Natural England took the decision to revoke the General Licences. Wild Justice was not approached by Natural England about this prior to its announcement. Wild Justice did not ask for the licences to be revoked with immediate effect and did not consider it necessary to do so. Wild Justice asked Natural England to replace the current licences with a lawful alternative once they expired on 31 December 2019.

Wild Justice’s challenge against Natural England’s decision to grant the General Licences had the following chronology:

1 January 2019 – Natural England grants the 2019 General Licences GL04-06 (the ‘General Licences’) which ‘authorise’ the killing of 16 bird species.

13 February – Leigh Day sent Natural England a Pre-Action Protocol (‘PAP’) legal letter on behalf of Wild Justice setting out why our client considered the General Licences to be unlawful.

26 February – Natural England responds, a day ahead of the formal deadline for response, asking for two more weeks.

27 February – Wild Justice gives Natural England a further week.

1 March – Natural England asks for a meeting with Wild Justice.

13 March – Chris Packham, Dr Ruth Tingay, Dr Mark Avery and two of their lawyers meet Natural England.

15 March – Wild Justice receives a confused and ambiguous written legal response from Natural England which does not concede the legal argument, nor provide evidence for the lawfulness of the General Licences.

15 March – Wild Justice launches crowdfunder on Crowdjustice platform to raise funds for legal challenge – this was the first public mention of what the case was about.

21 March – Leigh Day files legal claim in the court on behalf of Wild Justice seeking judicial review of Natural England’s decision to grant the General Licences.

25 March – crowdfunder reaches target of £36,000 in 10 days.

23 April – Natural England concedes the claim and separately makes a public announcement of its decision to revoke the General Licences

26 April – Natural England publishes an interim general licence to kill or take Carrion Crows to prevent serious damage to livestock including poultry and reared gamebirds.

3 May – Natural England publishes interim general licences for controlling Canada Geese and Wood Pigeon.

3 May – Leigh Day writes to Scottish Natural Heritage, the Department of Agriculture, Environment and Rural Affairs in Northern Ireland, and Natural Resources Wales to bring the outcome of the legal challenge to their attention.

4 May – Responsibility for granting general licences is transferred to Defra with immediate effect. Defra announces a call for evidence on the use of general licences for the management of certain wild birds with a closing date of 13 May 2019.

8 May – The Environment, Food and Rural Affairs Committee announces that it will hold a one-off evidence session with Defra Ministers and Natural England on 21 May 2019 on Natural England’s decision to withdraw and reissue the general licences for controlling wild birds, and the subsequent decision by Defra to take over this responsibility.