Supplementary written evidence submitted by the Royal Society for the Protection of Birds
This supplementary memorandum answers some questions raised during the RSPB’s oral evidence to the Committee on 7 March 2012. It also responds to evidence, both written and oral, presented by other witnesses to the Committee to date.
Protection of SSSIs
1. In response to Q2 from the Chair (Oral evidence, 7 March) , we were initially concerned that the draft National Planning Policy Framework (NPPF) would undermine protection for SSSIs, because it would essentially have raised the bar of harm over which an application could be refused from ‘adverse effect’ to ‘significant and demonstrable harm’. Furthermore, the draft NPPF gave economic objectives clear primacy over environmental objectives as the purpose of the planning system, meaning it would have been easier for a local authority to consider that the economic benefits of a proposed development would outweigh the environmental harm.
2. However, the published NPPF makes it clear that the presumption will not apply where ‘specific policies in this Framework indicate that development should be restricted’. There is a footnote that goes on to say ‘for example, those policies relating to sites protected under the Birds and Habitats Directives and or Sites of Special Scientific Interest.’ By virtue of the above, we believe that there is no greater threat to SSSIs resulting from the NPPF.
Natural England enforcement policy
3. In relation to protected sites, in paragraphs 59 to 61 of its original submission, the RSPB raised concerns that:
- There was a lack of appetite within Defra and Natural England for robust enforcement action;
- A lack of published analysis by Natural England of compliance with and efficacy of restoration orders;
- A lack of published analysis of the efficacy of prosecution as a deterrent.
4. These concerns have since been further exacerbated by a Natural England announcement in respect of a case they were progressing in respect of alleged illegal damage (including drainage) to Walshaw Moor  . Walshaw Moor is an area of blanket bog, wet heath and dry heath in the South Pennines Site of Special Scientific Interest. (This area is also a Special Area of Conservation (SAC) under the EU Habitats Directive and a Special Protection Area (SPA) under the EU Birds Directive).
5. However, on 25 March 2012 Natural England announced that it had reached an agreement with Walshaw Moor Estate Limited (owners of Walshaw Moor) allowing both parties to end the legal actions they had been pursuing  .
6. From the information published by Natural England to date, it remains unclear how the issue of the alleged illegal damage (including drainage) of SSSI/SAC/SPA habitats is being addressed under the agreement reached with Walshaw Moor Estate Limited.
Comments on ACPO written evidence
7. Para 3.7: We note and support ACPO’s contention that an offence of vicarious liability, if introduced to England and Wales, would help address persecution of birds of prey.
8. Paras 3.8 - 3.10: We are wary of any proposals that might result in a default position of using civil sanctions instead of prosecution (though their use in dealing with first-time offenders – who might otherwise only receive a warning or a caution – could be explored). That said, we see merit in the considered use of, inter alia, fixed monetary penalties, enforcement undertakings, anti-social behaviour orders and serious crime prevention orders, where appropriate, in relation to wildlife offences. We are also wary of any proposals that might reduce the enforcement powers of the police in relation to wildlife crime. We note the imminent creation of the National Crime Agency, and its potential role in tackling serious and organised wildlife crime, such as raptor persecution and aspects of trade in wildlife and/or derivatives.
9. Paras 3.11 - 3.13, 6.7 - 6.12: We note and support ACPO’s comments regarding the (in)adequacy of penalties for serious wildlife offences. We advocate a review of currently available sanctions through the Law Commission’s review of wildlife legislation, including potential for the Proceeds of Crime Act 2002 to apply to wildlife offences. We note and support ACPO’s comments that serious offences, which in our view includes raptor persecution, should be tried at Crown Court and therefore be subject to more stringent penalties. Crown Court trials would carry the additional benefit of such offences being recorded for official reporting purposes by the Home Office. By way of example, penalties provided under the Environmental Permitting (England and Wales) Regulations 2010 can reach fines of up to £50,000 and/or up to 12 months in prison in the Magistrates Court, and unlimited fines and/or up to 5 years in prison in the Crown Court. This compares to a maximum £5000 fine and/or six months in prison for wildlife offences.
10. Para 4.8: We note ACPO’s comments regarding the conduct of a thematic inspection into the policing of wildlife crime in Scotland, and believe a similar review should be carried out in England.
11. Para 4.9: We note and support ACPO’s comments regarding the need for responsibility for tackling serious and organised wildlife crime, which in our view should include raptor persecution, to be elevated to the National Crime Agency.
12. Paras 5.6 - 5.8: We note ACPO’s comments regarding current funding arrangements for the National Wildlife Crime Unit (NWCU), particularly impacts on operational capability and capacity, and contend that the relevant Government departments must introduce a secure, long-term funding solution for the Unit.
Comments on Defra written evidence
13. Para 1.9 - 1.10: We note and support Defra’s comments regarding the role of the UK Wildlife Law Enforcement Working Group (WLEWG); the advice it provides is pivotal to decisions on the UK wildlife crime priorities for enforcement activity, taken by senior Government and enforcement officials through the UK wildlife crime Tasking and Coordinating Group (UKTCG). The WLEWG has identified that golden eagle, goshawk, hen harrier, peregrine and white-tailed eagle are all species which are or are suspected to be subject to criminal activity, which may be adversely affecting their conservation status.
14. Para 3.23 We note Defra’s comments concerning the new National Crime Agency’s response to serious and organised criminality and its relationship with specialist units including those tackling wildlife crime. We support Defra in its work with the Home Office to ensure a complete understanding of the National Crime Agency’s needs and re-iterate our opinion at para 42 of our original submission that responsibility for tackling serious and organised wildlife crime, including raptor persecution, should lie with the NCA with support from the NWCU.
15. Paras 4.3 - 4.4 We note the comments relating to AVHLA’s regulation of CITES permits and its willingness to initiate inquiries if criminal activity is suspected. We re-iterate our concerns, as outlined at paras 46 – 47 of the RSPB’s original submission, about the case (also referenced by TRAFFIC at para 37 of its evidence) in which a dealer was allowed to import birds of prey for a bogus conservation breeding programme thereby evading strict EU health regulations. We contend that AHVLA needs to change its approach to ensure that only birds destined for genuine conservation programmes are permitted to enter the UK.
Comments on Home Office written evidence
16. We note the comments made in the introduction which mirror Defra’s comments on the role of the NCA with regard to working with specialist units to tackle wildlife crime. We welcome the Home Office’s recognition that wildlife crime can be committed by organised criminals and contend that persecution of raptors fulfils the definition of serious and organised crime as evidenced at paras 3 – 7 of our original submission.
17. We also note Home Office comments regarding current funding arrangements for the National Wildlife Crime Unit, particularly impacts on operational capability and capacity, and contend that the relevant Government departments must introduce a secure, long-term funding solution for the Unit.
Comments on National Gamekeepers’ Organisation oral evidence
18. During oral evidence, the representative of the National Gamekeepers’ Organisation (NGO) stated, in regard to recovering bird of prey populations (Q64), "Some of them are now so numerous, the buzzard in particular, that they are becoming a serious problem and Natural England are having to look at licensed control as a route to saving wildlife". We believe that this statement is misleading and requires clarification for the reasons set out below.
19. Defra has recently convened a stakeholder group to discuss buzzard predation of pheasant poults in response to a letter from the NGO to the Minister. This does not equate to Defra (or Natural England) "having to look at licensed control". The NGO’s letter was prompted by the refusal by Natural England of a number of applications for lethal control of buzzards to protect pheasant poults during 2011. No such licences have been granted since the Wildlife and Countryside Act (WCA) 1981 came into force.
20. The remit of the stakeholder group is being finalised, but the first meeting was focussed on buzzard predation of pheasant poults. It does not include other species of birds of prey and it is aimed at reducing losses of pheasant poults in release pens (legally classified as "livestock" under the WCA 1981) and not "to saving wildlife" as argued by the NGO’s representative in oral evidence. Natural England has recommended that predation of other species of wildlife by buzzards should be excluded from the group’s terms of reference, due to the lack of evidence for a negative impact. The RSPB supports this view.
21. The NGO’s statement therefore contains three significant inaccuracies;
- Natural England is not "having to look at licensed control (of buzzards)", implying a proactive stance towards controlling buzzards on the part of Government. To date, all applications for licences made for the purpose of protecting livestock have, as far as we are we aware, been refused by Natural England.
- There is no evidence to support the contention that "some (birds of prey) are now so numerous ... that they are becoming a serious problem (for wildlife)".
- The stakeholder discussion group convened by Defra (not Natural England) is focussed on buzzard predation of pheasant poults, not "saving wildlife".
22. Given these significant inaccuracies, we request that this statement be removed from the record and disregarded by the Committee in its deliberations.
23. Discussion during this session also concerned the lack of a lowland breeding population of hen harriers and the possible causes of this (Q60-63). The following information may be useful to the Committee when placing that discussion in context.
24. The hen harrier was once a widespread and fairly common bird in Britain and there are breeding records from many English counties from the early part of the 19th century. Numbers declined as a result of changes in habitat, for example the drainage and cultivation of marshes and heathland, and because of persecution by those seeking to protect poultry or gamebirds.
25. By the end of the 19th century the hen harrier had been lost from mainland Britain, with a small population surviving on the Western Isles and on Orkney. After the Second World War, the hen harrier recolonised the British mainland, due probably to a reduction in the number of active gamekeepers and a corresponding drop in the intensity of persecution.
26. Northern England was re-colonised in the mid-1960s and in the 1970s and 1980s up to 25 nesting attempts were made each year in Cumbria, Derbyshire, Durham, Lancashire, Northumberland and Yorkshire. It was hoped that this was the start of a more widespread recovery but this was not to be. The population did not increase further and since the mid-1990s there has been a significant decline in the bird’s fortunes and a marked contraction of breeding range  .
27. In modern times, the hen harrier has shown a strong association with heather moorland as a breeding bird in England and nests are almost always sited so that the surrounding mature heather provides cover and protection. There is no evidence of hen harriers habitually using crops as nesting habitat in the UK as they do in some parts of Europe and this explains its absence as a breeding species from the farmed landscape of lowland England   .
Hen harrier persecution
28. A small number of written and oral submissions have sought to cast doubt over the scale of illegal bird of prey killing and its impacts, especially in relation to the hen harrier. In response, the RSPB draws the Committee’s attention to the following evidence:
29. The Government has identified raptor persecution as one of six UK wildlife crime priorities, with a focus on golden eagle, white-tailed eagle, hen harrier, red kite, peregrine and goshawk. The Wildlife Law Enforcement Working Group has identified these as species that are or are suspected to be subject to criminal activity which may be adversely affecting their conservation status. (see RSPB’s original submission para 6 and para 13 above).
30. There is a significant quantity of published evidence, including peer-reviewed scientific papers, which clearly links raptor persecution, including of hen harriers, to upland moors managed for driven grouse shooting (see RSPB’s original submission para 7).
31. The Government’s UK-wide nature conservation advisory body, the Joint Nature Conservation Committee (JNCC), has published a conservation framework that identifies persecution as the principal constraint on the UK hen harrier population. Harrier persecution incidents in Scotland were found to be directly related to the distribution of grouse moors. A significant negative relationship exists between the density of hen harrier persecution incidents and the proportion of successful nests on grouse moors. JNCC concludes that Wales and Northern Ireland appear to be on track to achieve favourable conservation status for this species but that England is unlikely to achieve this unless illegal persecution is considerably reduced  (see RSPB’s original submission Appendix 1).
32. Natural England, the government’s advisers on the natural environment, identifies persecution as the "prime cause of hen harrier disappearance"  . It has concluded that a) very few harrier nesting attempts are successful on grouse moors, b) there is compelling evidence that persecution continues, both during and following the breeding season, and c) persecution continues to limit hen harrier recovery in England. Natural England’s view is that ".... the critically low breeding numbers and patchy distribution of the hen harrier in England is a result of persecution - both in the breeding season, and at communal roosts in the winter - especially on areas managed for red grouse or with game rearing interests"  .
Comment on Countryside Alliance written evidence
33. At para 7 allegations were made concerning the "recent publication of out of date research into the breeding success of peregrine falcons on grouse moors". The Committee may like to note that the publication concerned was published in a peer-reviewed scientific journal and used data collected over nearly three decades of nest monitoring by the Northern England Raptor Forum (NERF) between 1990 and 2006  .
34. It was further commented that, "As a result of this, the National Wildlife Crime Unit circulated a clarification to all Police Wildlife Crime Officers in the UK, and to all Partnership for Action Against Wildlife Crime members, in which it was drawn to the attention of those studying the research paper that the data used was out of date, and that in using such information there was a clear danger that the research paper might be misunderstood as representing the current situation, which it did not".
35. For the avoidance of doubt, this does not represent the opinion of the NWCU. In an email to the RSPB dated 29th December 2012, the NWCU states, "We were [then] contacted by Scottish Land & Estates (SLE) with concerns over the NERF paper and were asked to circulate a ‘response’ paper (from the Countryside Alliance) along with a caveat (which was provided to us by SLE). We duly circulated the caveat to all our PWECO’s on 28th November as requested. The caveat was clearly marked as being from CA and was never stated to be the opinion of NWCU. I believe that the PAW secretariat (both in Scotland and E&W) circulated the same reports (and the later caveats) to all PAW partners "  .
26 April 2012
 Gibbons D W, Reid J B, Chapman R A 1993 The New Atlas of Breeding Birds in Britain and Ireland 1988 - 1991 T & A D Poyser
 Watson D W 1977 The Hen Harrier T & A D Poyser
 A future for the Hen Harrier in England? Natural England http://naturalengland.etraderstores.com/NaturalEnglandShop/NE140
 Amar A et al. 2012. Linking nest histories, remotely sensed land use data and wildlife crime records to explore the impact of grouse moor management on peregrine falcon populations. Biological Conservation 145, Issue 1, 86-94.
 S. Eddy (NWCU) in litt .