Challenge being heard in High Court to protect endangered hen harriers

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The High Court is hearing a legal challenge to the brood management of endangered hen harriers on 5 and 6 December 2018.

Leading conservationist Mark Avery, represented by law firm Leigh Day, is bringing the judicial review challenge against Natural England's decision to grant a licence to allow brood management of the birds. The RSPB have also brought a separate judicial review against the decision.

In January 2018 Natural England granted a two-year licence to trial the brood management of hen harriers - one of the rarest birds in England that has the highest possible conservation status for a wild bird and is a protected species under the EU Birds Directive. Brood management involves authorising what is otherwise a criminal offence - the removal of the eggs or chicks of hen harriers from their nests. Under the proposed licences the young birds are reared in captivity before they are reintroduced into the wild.

Campaigners argue that the plan places the precarious English population of hen harriers at further significant risk and fails to address what all agree is the root cause of the hen harrier's decline, illegal persecution on grouse moors where the bird of prey is known to kill red grouse.  Critics are concerned that the plan will do nothing to boost the hen harrier population and only serves to placate grouse moor owners and the grouse shooting industry.

The ongoing problem of the persecution of hen harriers is tragically highlighted by five birds already having been reported missing on or near land managed for grouse shooting in the north of England.  Studies have shown that England should be able to support around 300 hen harrier pairs. But this year (which was a relatively successful year due to high vole numbers which is a main prey species for hen harriers) only 34 chicks fledged from nine English nests, according to a report by Natural England and in 2017 there were only 10 chicks in the whole of England.

Natural England's stated rationale for the trial is to see whether brood management "could reduce the perceived conflict between hen harriers and grouse management" and thereby lead to fewer attempts to kill hen harriers illegally.
 
In his legal case Dr Avery argues that Natural England's decision to grant the licence was unlawful as there were alternative satisfactory solutions available which under the EU Birds Directive had to be considered before Natural England could decide to authorise the taking of eggs and the disturbing of a hen harrier's nest which is ordinarily a criminal offence. He will argue that the alternative solutions that Natural England should have considered include: licensing grouse shooting; increasing criminal enforcement, introducing vicarious liability for wildlife crime (as recently adopted in Scotland) and considering banning grouse shooting altogether.
 
Mark Avery said: "The fragile hen harrier population must be protected and allowed to thrive in its natural habitat. It is incredibly sad that Natural England seems to be more interested in serving the grouse shooting industry than the wellbeing of these magnificent birds. In Scotland a range of measures are being pursued which if implemented well and with vigour stand a good chance of making a significant difference, yet in England where the numbers of hen harrier are far fewer, the Government has ignored the measures being taken north of the border and chosen to waste its time and money on brood meddling"

Tessa Gregory, partner at law firm Leigh Day, added: "Our client believes that there were many alternatives to be considered before deciding on the damaging and pointless measure of allowing brood management of these endangered birds. It is time for the Government to start tackling the real issue: illegal persecution by the grouse shooting industry.  Our client has demonstrated that there are many other measures which could be taken that would serve to protect the hen harrier and address criminality in the grouse shooting industry. We hope that the court will agree with our legal arguments and quash Natural England's decision to allow brood management of hen harriers."

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