Necessary protection
ABOLITION OF (I) REQUIREMENT TO HOLD A GAME LICENCE
TO KILL OR TAKE GAME AND OF (II) REQUIREMENT TO HOLD LOCAL AUTHORITY
LICENCE AND AN EXCISE LICENCE IN ORDER TO DEAL IN GAME
26. The Department considers that no protections
currently exist as a result of the requirement to hold a licence
in order to kill game species. It is argued that the licence requirement
does not act to limit the killing of game or to impose any standard
with respect to the act of killing. The penalties for shooting
outside the various close seasons would not be affected. Similarly,
property rights to game would not be affected, as poaching and
related trespass would remain illegal under the 1831 and Night
Poaching Acts. Finally, it is noted that the proposal has no relevance
to the issue of public safety from firearms, as the licensing
system for guns is entirely separate from this legislation.
27. It is proposed that there should be no system
for the licensing of game dealers and that persons should be entirely
free to trade in lawfully killed game. The Department considers
that the existing legislation requiring the licences to deal in
game does not currently provide any protection to the public health,
as the process of licensing has no connection with the enforcement
of food standards under the Food Safety Act 1990 and the General
Food Regulations 2004.
28. The Department has also reasoned that the existing
legislation has no direct effect on the conservation and protection
of game species. This is because any person who pays the necessary
fees can obtain licences to kill and trade in game - the licensing
machinery therefore does little if anything to restrict access
to the practice of hunting or the trade in its products.
29. While we found it easy to accept that the form
of the existing provisions in themselves did nothing to restrict
the number of game animals taken and killed, we were concerned
that any proposal designed to make it easier to kill and to sell
game might unhelpfully incentivise activities which are, and would
remain, illegal. We therefore asked the Department to explain
what forecasts it had made of the effects of the proposed Order
on quantities of domestic game demanded and supplied; on levels
of poaching and on the possible impact which an increased demand
for game might have on other wild animals, such as birds of prey,
which could potentially suffer the consequences of being predator
species in respect of an expanded game industry.
30. In relation to future levels of demand for domestically
sourced game within the United Kingdom, the Department gave a
less than unequivocal position, although we well understand why
it might be difficult to offer any very meaningful forecasts in
this respect.[12] The
majority of game from the UK is sold abroad, and the Department
reasons that demand for UK sourced game will therefore largely
depend on "how domestic costs of production compare with
those experienced by world suppliers, and it is not certain what
the result will be". The Department believes that domestic
consumer demand will have only a marginal effect on UK game supply,
given that the UK has not been a major consumer of game, whether
domestically or foreign-sourced. While the deregulatory effects
of the proposed Order might make it easier to increase UK consumers'
awareness of game, and thereby bring about some increases in domestic
demand, the Department stated that it was not possible to make
any predictions with confidence but its "best assumption"
was that domestic demand would not substantially change. On the
basis of the Department's advice on this issue, we are not aware
of any firm reason to consider that demand for UK sourced game
would substantially change as a result of the deregulatory effect
of the proposed Order.
31. In respect of the effect of the proposed Order
on future levels of poaching, we note first of all that poaching
would remain a crime under the proposal. In its response to our
question, the Department has not offered a forecast of the effect
of the proposal on the level of poaching. It has instead stated
that there are in its view mechanisms in place to monitor and
respond to any future change in the levels of poaching through
the newly established National Wildlife Crime Unit (NWCU), which
provides a forum for the exchange of intelligence between police
and HM Revenue and Customs across the country. Should levels of
poaching increase, the Department considers the NWCU would "raise
this issue directly with Department officials … Steps could
then be taken to raise enforcement activity where it was required".[13]
The Department further notes that the requirements under EU legislation
relating to traceability of foodstuffs require traders in game
to keep records which would enable them to identify the source
of the game they sell, if asked to do so by the enforcement authorities
(in this case, the Food Standards Agency, and local Trading Standards
or Environmental Health Departments).[14]
On the basis of these considerations, we conclude that there
is no evidence that the proposed Order would increase the unlawful
killing of game or trade in illegally killed game birds. We also
believe the Game Laws amended as proposed, other related statutory
provisions controlling the killing of wild animals and the related
enforcement machinery would be adequate to address any criminal
activities arising in the context of reasonable changes in the
level of demand for game.
32. Another point on which we questioned the Department
was the possible effects of the proposal, and of any increase
in demand for game it might occasion, on the protection and conservation
of non-game species such as, for instance, birds of prey. The
issue of concern to us was whether a demand for game might lead
to an increase in the commission of illegal acts against species
which prey on game birds.
33. The Department responded that, because the existing
game licence is no effective barrier to participation in game
shooting, its abolition is unlikely to have an effect on levels
of illegal activity against non-game species. It stated that,
while it has been recognised that birds of prey do take some birds
released at game shoots, most of the birds so taken by raptors
are pheasants and red legged partridge, which are preyed upon
by sparrowhawks, buzzards and tawny owls, none of which birds
of prey is a species of conservation concern. It noted that the
British Association for Shooting and Conservation, which provides
advice to gamekeepers on legal methods of control, has acknowledged
that a small number of pheasants are taken from release pens.
34. The Department stated that a number of efforts
have been made to prevent the unlawful killing of birds which
prey on moorland game, such as hen harriers and peregrine falcons.
In particular Operation Artemis, launched in 2004 and continuing,
is the national police strategy to catch criminals involved in
illegal activity against these rare birds. Under the aegis of
this strategy, volunteers carry out monitoring of the population
of hen harriers throughout the year. Monitoring of the wild bird
populations in general is carried out by the British Trust for
Ornithology through the Government's statutory conservation adviser,
the Joint Nature Conservation Committee (JNCC).[15]
The JNCC is able to advise Government on any long term trends
in respect of the population of endangered bird species.
35. It therefore appeared to us that the question
for consideration was whether the removal of the requirement to
hold a licence to kill game, or to hold licences to trade in game,
or the permitting of trade in lawfully killed game throughout
the year would be likely in themselves to cause a significant
increase in the number of endangered birds killed in order to
facilitate that trade. There is no meaningful evidence about the
possible effect of the proposal on levels of demand for game sourced
in the UK. In view of the fact there is no reason to consider
that UK demand for game would be significantly enhanced by the
proposal and of the extant provisions in law and the on-going
administrative action of Government and voluntary bodies to protect
rare birds we do not consider that the proposed Order would remove
any necessary protection for endangered animals.
ABOLITION OF THE RESTRICTION ON DEALING IN GAME BIRDS
AND VENISON DURING CLOSE SEASONS AND PERMITTING YEAR ROUND SALES
OF LAWFULLY KILLED GAME
36. The Department considers that the proposed requirement
that only lawfully killed game could be sold throughout the year
will prevent any loss of protection. If a person takes or kills
game during the close season, they will still be committing an
offence and the Department further proposes that the selling of
birds taken or killed unlawfully (under the Night Poaching Act
1828, the 1831 Act, the Poaching Prevention Act 1862 or Wildlife
and Countryside Act 1981), where the person selling either knew
or had reason to believe it was unlawfully taken or killed, should
be an offence. It is already an offence to sell venison taken
contrary to the 1991 Act. The new offence created by this element
of the proposal is analogous with provisions of the 1991 Act concerning
the sale of venison.
37. The Department stated in the Explanatory Statement
that record keeping required under EC Regulation 178/2002 will
provide enforcement authorities with information necessary to
mount prosecution of those who deal in unlawfully killed game
birds and deer, whether under the new offence created by article
5 of the proposed Order or the existing offence in section 11
of the 1991 Act. We therefore asked the Department to specify
the record keeping requirements imposed by EC Regulation 178/2002
and to explain how these compared with the provision it is proposed
should be repealed.
38. In its reply, the Department notes that, while
information required to be recorded under the Regulation is similar
to that required under the existing section 11 of the 1991 Act,
it is not identical. In particular it notes that the Regulation
makes requirements about record keeping only for the purpose of
ensuring traceability of foodstuffs and it therefore makes no
requirement in respect of recording the place or premises at which
any deer was killed, or how it was killed. The response states
that Article 18 of the Regulation requires that food and feed
businesses must identify their suppliers of food and food producing
animals, identify the businesses to which they have supplied products
and maintain appropriate records which can be made available to
the appropriate authorities on demand. Records kept must include
the name and address of suppliers and business customers, the
nature of products supplied and the date of transaction or delivery.
However, there is no requirement that records must be capable
of being used to track all inputs to outputs (as would be necessary
to provide full internal traceability).
39. We consider that there is a possibility that
unlawfully killed venison might in future be sold contrary to
the 1991 Act (as of course can sometimes occur now). However,
it does not appear to us that the additional existing requirements
in respect of record keeping of the 1991 Act can be said to offer
any substantial impediment to those who would wish to carry on
this illegal trade. In particular, we note that while the Regulation
does not require records to be kept of the place and manner of
killing of deer, any person supplying deer he knew to have been
unlawfully taken or killed would be most unlikely to offer that
information to another person in order for its illegal place and
manner of killing to be duly recorded. The requirement in the
Regulation to record from whom venison has been received appears
to offer a more helpful means for enforcement officers to pursue
cases of illegal supply. On this basis the requirements of the
1991 Act, where they differ from those of the Regulation, appear
to serve no effective purpose in respect of maintaining protection
against the unlawful killing of deer. We agree that this element
of the proposal would give rise to no loss of necessary protection.
Continued exercise of rights and
freedoms
ABOLITION OF REQUIREMENT TO HOLD A GAME LICENCE TO
KILL OR TAKE GAME
40. The Department summarises the effect of this
element of the proposal on existing rights and freedoms in the
Explanatory Statement thus: "Removing the requirement for
a licence would enable everyone who wished to take or kill game
outside the close season to do so without the unnecessary administrative
burden that licences impose, providing they have the right to
kill game over that land". We agree.
ABOLITION OF REQUIREMENT TO HOLD LOCAL AUTHORITY
LICENCE AND AN EXCISE LICENCE IN ORDER TO DEAL IN GAME
41. The Department considers that no existing rights
and freedoms would be affected by the removal of the existing
licensing requirement and that freedoms are enhanced by removing
the requirement to hold licences to deal in game. We agree.
REMOVAL OF THE RESTRICTION ON DEALING IN GAME BIRD
AND VENISON DURING CLOSE SEASON AND PERMITTING YEAR ROUND SALES
OF LAWFULLY KILLED GAME
42. The Department proposes to expand existing rights
by permitting the sale of game birds and venison at any time,
providing the birds and deer have been lawfully taken or killed.
A new offence of selling a game bird which has been unlawfully
taken or killed is proposed and to that extent, an existing freedom
is removed. There is already a similar provision in the 1991 Act
regarding illegally obtained venison. The Government does not
consider it can be reasonable to expect to continue to be free
to trade in birds which have been illegally killed or taken. We
agree.
43. We consider that no person would be deprived
of any right or freedom they might reasonably expect to continue
to enjoy as a result of the proposal.
Estimates of costs and benefits
44. The Department has presented its consideration
of the costs and benefits which it expects would arise from the
making of the proposed Order in the Regulatory Impact Assessment
reproduced at Annex B to the Explanatory Statement. Paragraphs
87-89 of the Explanatory Statement are headed as a summary of
this, but they deal largely with the existence of the alternatives
of reform and leaving the extant legislation in place.
45. Removal of licensing requirements - The
Department states that it is estimated that 480,000 people are
currently involved in the shooting of live quarry but that only
20% of these people are believed to be compliant with the Game
Acts, presumably meaning that they have obtained a licence to
shoot game. The costs of the licensing system are born between
the Department, local authorities who issue the licences and the
individuals who pay for them. At full compliance, the estimated
breakdown is given as:[16]
