Photo: Gordon Yates

Late last week, I heard that our appeal on the unlawfulness of Natural England’s brood-meddling scheme had failed. That judgment has now been handed down and is public. The RSPB’s similar but independent challenge has also failed.

It’s difficult to say much about this result without sounding like a bad loser – tell me whether you think I pull it off below – but first some important thank yous.

Thank you to all who contributed to the crowdfunders to make the original challenge and then to mount this appeal (see here and here). I’m sorry that a bunch of judges have not seen the world like we do, but the generosity of over a thousand people made these two challenges possible.

Thank you to the brilliant lawyers, Tessa Gregory at Leigh Day, and David Wolfe QC and Zoe Leventhal at Matrix Chambers, who have argued the case with such skill, passion and dedication. They now know more about Hen Harriers and grouse moors and I know a bit more about how the law works.

And thank you to the RSPB for making their legal challenge alongside mine – I wondered whether they would, but they did.

A brief recap: this challenge was over the licensing of an otherwise unlawful action by Natural England. Natural England authorised meddling of Hen Harrier nests in northern England so that Hen Harrier nests that should have been protected were actually removed from the wild, the chicks raised in captivity and then released back into the wild. This is a scheme more or less only supported by those interest groups responsible for illegal persecution of Hen Harriers on grouse moors. It has been opposed by raptor workers, the birding public and conservationists. It’s a way of giving the criminals what they want (the absence of Hen Harriers) by dressing it up as a conservation scheme and a piece of research (in my opinion).

The legal challenge: the Hen Harrier is a protected species and our case was simply that Natural England had to consider alternatives to brood meddling and only carry out this otherwise unlawful action if alternative actions were judged to be no good. Natural England did not consider alternatives and argued that they didn’t have to because this was a piece of research. Now, twice, judges have agreed with this view.

I don’t know much about the law but I do know something about research, and the brood meddling scheme is a poor piece of research – both in concept and in delivery. The original judgment, and now the Court of Appeal’s decision, leave open the possibility that other harmful and unlawful actions may be authorised under the cover of research. This is a source of considerable concern and I’m sure that the RSPB will be considering whether it should allow such a potentially harmful view to remain unchallenged.

What next?: we could appeal to the Supreme Court. That would cost money, time and effort. How would you feel about that? I have asked for permission to appeal because that decision had to be made last week, in a 48-hour period, after a wait since January for the Appeal Court decision. However, it seems very unlikely that we would get to the Supreme Court in time to have any impact on brood meddling in 2021 so an appeal would in many ways be somewhat academic.

Justice delayed is justice denied: this challenge started in January 2018 and was first heard in court in December 2018 and January 2019, and the result of that hearing emerged in March 2019. I sought permission to appeal straight away but we didn’t get back into court until March 2020 when, because of illness of one of the judges, there then followed an enormous delay in rescheduling the appeal which took place in January 2021, and it has taken until now for that judgment to be handed down. Delays of this sort are almost unprecedented. If things had followed a more normal timetable then we would have been able to refer the Appeal Court decision to the European Court of Justice but that option is no longer available. It is also the case that although my challenge started before any brood meddling had been carried out the slow course of legal events now means that the fifth year of the scheme is likely to have happened before any prospect of winning a legal challenge on its legality.

On a personal level: I’m glad I took this challenge and I’m grateful to everyone who has helped. The right of an individual citizen to challenge decisions of statutory authorities is a right that we should prize and defend. Surprise, surprise, this government seems intent on weakening the access of individuals like me in this case, to carry out challenges of this general type. I could not have taken this challenge without the ability to raise funds through crowdfunding.

There is quite a lot of work involved in taking such challenges – lots for the lawyers but quite a lot of reading, writing, listening and deciding for the Claimant too. Since January 2018, this case has been part of my life and that’s quite an investment of emotional energy and time. I’ve considered that I have been working for Hen Harriers and for those wonderful people who funded the original challenge and the appeal. I gave it my best shot and I’m glad that I did. We lost, but without a legal challenge we would always have wondered whether we might have won.


The post Justice for Hen Harriers? appeared first on Mark Avery.

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