I've just had a read of the full judgment, WJ have had their trousers taken down, any claim by them to have 'succeeded' is spin, pure and simple. Actually, I wouldn't call it spin, just a straight lie.
I'll try to summarise for those who (understandably) would rather not read 14 pages of legalese.
WJ brought their review on 3 grounds:
Ground 1 - said that each licence should have specified the circumstances in which it may be used. WJ contended that without the licences specifying limits of time and space, the killing or taking of some wild birds may be authorised when such control is unnecessary.
Ground 2 - said that a general licence is not appropriate where NRW could not satisfy itself that there are no other satisfactory solutions on each occasion that the licence is used. WJ contended that such a licence should be conditioned to limit its use to where NRW can be satisfied that appropriate solutions have been considered to try to fulfil the stated purpose prior to use of the licence. To put it another way, the contention is that every time the licence is used killing or taking must be as a last resort, and NRW itself would have to be satisfied of that fact.
Ground 3 - said that as such licences are granted under a framework of limited derogations from the general prohibition on the killing or taking or wild birds, such derogations are only lawful if properly justified. This meant that positive evidence would be required to justify derogations, and not just an absence of evidence pointing to other satisfactory solutions.
Dealing with ground 1 first, this was dismissed as the Court determined it would be impractical for NRW to set out such requirements as it would be inevitable that it could not do so without excluding some situations where it would be appropriate for a GL to be used. Accordingly, it was correct for NRW to place the onus of the user of the GL to satisfy themselves that they were acting lawfully.
Whilst WJ appear to be making hay from this comment that control of crows should only occur at the same time as threatened birds are breeding, this is taking the judgment out of context. It appears that this example was used by the barristers involved as an illustration of how NRW might be expected to tighten the wording. Importantly, the Court discussed that it is for the user of the GL to satisfy themselves of lawful use in the circumstances under which they choose to use the GL. Therefore, there is an argument that crows could be controlled, outside the breeding seasons of protected birds, if you could evidence that it was necessary to engage in control all year round in order to keep numbers below a harmful threshold.
Turning to ground 2, this was dismissed as it sought too high a standard. In effect, it would stop the GL being a 'general' license if NRW had to be satisfied, in every situation, that the use of the GL would be lawful.
Here, there was a suggestion that NRW should add wording similar to that Natural England has added to say that lethal control should only be used as a last resort after non-lethal methods have been exhausted or ruled impractical. However, this is not a ruling by the Court, only a passing comment. Importantly, the Court went on to say that 'that ultimately that is a matter for the NRW acting rationally on the evidence before it', i.e. it is for NRW to decide whether it needs to do that and it is not for the Court to determine this. Therefore, WJ would be wasting its time to bring a future JR if this wording is not added.
Finally, ground 3 was dismissed as the Court held that it was open to NRW to, effectively, prioritise the preservation of at risk species by issuing GLs for the control of predators, or the protection of crops from pests, where there is reason for it to be believed that those predators/pests pose a risk of harm. The Court refused to be drawn in by WJ's argument that NRW could only issue GLs were it was scientifically proven that the target species was causing harm.
There we have it, WJ failed on all 3 of their claims and not one ruling was made which gave them anything for their time and effort. The best they have is a couple of comments from the Judge which, if read in context of the judgment, have no legal weight.
Personally, I think there are some important take away points from this.
First, the Court was clear that the issuing and wording of the GLs is for the relevant statutory authority. So long as they do not act unlawfully or irrationally, it is not for a third party, such as WJ, to come along and seek a JR because they would prefer a different wording, or no GL for that species. This ought to weigh heavily in event of future challenges.
Second, it has been made clear that it is legal for the authority to issue licenses which place onus on the user to ensure compliance. This is important as it allows relatively 'open' GLs which can be employed to cover the many potential uses they might be put to.
Third, it has put to bed the frankly ridiculous argument from WJ that the GLs should only be issued in circumstances where the authority is sure that non-lethal alternatives will not work. The logical conclusion of this argument would have been to replace the GLs with individual licenses, as that is the only way to ensure this.
Regrettably, this would suggest that WJ would indeed have lost their JR in England had NE had the balls to see it through. More positively, it paves the way for less onerous GLs in the future.
Finally, it would seem that BASCs submissions were helpful, as they are repeatedly referred to in the judgment. On this occasion, good work!
