Appendix
B
Letter from Department for Environment, Food and
Rural Affairs to the Committee Specialist: Proposal for the Regulatory
Reform (Game) Order 2007
Thank you for your letter of 1 February that raised
a number of questions on the two RRO proposals on game and deer
following the presentation to the regulatory Reform Committee
on 31 January.
The attached paper, plus 3 annexes, provides the
Department's response to [all] the questions raised by the Committee.
Unfortunately we are unable to provide complete responses to questions
28 and 29 pending further legal consideration. I will forward
the department's response to these questions by 16 February. I
hope this does not inconvenience your work too much.
I hope the Committee finds these responses useful
and informative. If, however, anything in the response is unclear,
or any issue requires further clarification, please do not hesitate
to contact me.
9 February 2007
Extract from annexed paper giving answers relating
to the game proposal
Proposal for the Regulatory Reform (Game) Order
2007
Q1. Does the Department agree that the prohibition
on taking and killing game in section 23 of the 1831 Act constitutes
a burden which would be removed by the proposed Order and if
not, why not?
The Department agrees with the Committee that the
prohibition on taking and killing game in section 23 of the 1831
Act constitutes a burden which would be removed by the proposed
Order. Section 23 of the 1831 Act contains the penalty for killing
or taking game without a game certificate and would be repealed
under this proposal. If section 23 were repealed, a burden as
defined by section 2(1)(a) of the Regulatory Reform Act 2001,
would be removed by the proposed Order. The Department concedes
that it overlooked the inclusion of this burden under paragraph
26 (b) in section 6.1 of the Explanatory document. The effect
of the removal of this burden on necessary protection and impact
on rights and freedoms is covered in terms of proposal A in sections
V.iv and V of the Explanatory Document submitted to the Committee
Q2. Please confirm whether the Department considers
that the imposition of this new burden would satisfy the condition
of proportionality required by section 1(1)(c)(ii) of the Regulatory
Reform Act and if so how it does so.
The Department confirms that the imposition of the
new burden would satisfy the condition of proportionality required
by section 1(1)(c)(ii) of the Regulatory Reform Act. The Department
believes the new burden is small and proportionate to the benefit
created, especially when compared to the overall aim of reducing
burdens on game dealers in the rest of the proposed Order.
Removing the restriction on dealing in game birds
during the close season would enable game lawfully taken during
the open season to be bought and sold during the close seasons.
However, removing the restriction could also allow a game bird
that was illegally taken to be lawfully sold during the close
season. For this reason, the Department consider that the dealing
in game birds should be permitted all year around, but only if
lawfully killed or taken during the relevant open season. Currently
there is no prohibition on dealing in game birds which have been
unlawfully killed or taken.
The new burden would create a new criminal offence
of selling game birds which have been unlawfully killed or taken
where the person concerned knew or had reason to believe that
they were so killed or taken. The new offence is necessary to
maintain the protection afforded to game birds during the close
season whilst allowing the sale of game lawfully taken during
the open season to be sold all year round. The new burden would
ensure game birds would be protected during the close season and
game bird populations sustained. The new burden would bring the
legislation regarding the sale of game birds into line with other
huntable species protected under the Wildlife and Countryside
Act 1981 ("the 1981 Act"). The new offence would also
ensure that the legislation with respect to the sale of game implements
Article 6 of the Wild Birds Directive[20]
(Article 6 restricts the sale, transport for sale etc of wild
birds). The new offence complies with the restrictions of sections
3(3) and (4) of the 2001 Act. After carefully considering possible
alternatives, the Department decided that the onus of proof under
the new offence should remain with the prosecution. The prosecution
would therefore need to show that the person selling game knew
that the game bird had been unlawfully killed. This means that
'innocent' sellers of unlawfully taken game will not be caught
by the offence. The Department considers this to be a reasonable
and proportionate approach and is consistent with the provisions
of the Deer Act 1991 regarding the sale of venison.
The Department considers that the new burden is proportionate
to the benefit which is expected to result from its creation by:
- being able to deal in game birds all year round;
- the commercial gains in sales that may be generated
during the close season, which are currently not permitted; and
- ensuring protection for game birds provided by
the close seasons is maintained.
The sentence levels are considered proportionate
as they correspond to similar offences for other huntable species
contained in the 1981 Act. It would be disproportionate to have
more stringent sentence levels for similar offences that are contained
in the 1981 Act.
Q3. Please explain what requirements in respect
of record keeping are imposed by EC Regulation 178/2002 and how
these compare with the existing requirements of the analogous
provisions of the Deer Act 1991.
Under EC Regulation 178/2002, game dealers are required
to record similar information to that currently required under
section 11. However, the information required under these Regulations
is only recorded for food traceability purposes and would not
include information regarding the premises or place where the
deer was killed or the means by which it was killed, which are
required under section 11 of the Deer Act. Full details of the
Regulation are given below.
Record keeping requirements under EC Regulation
178/2002
The Food Safety Act 1990 (Amendment) Regulations
2004 and the General Food Regulations 2004 came into force on
7 December 2004 and 1 January 2005 respectively. They align domestic
legislation with the general principles and requirements of Regulation
178/2002, and introduce new enforcement powers.
Under Article 18 of Regulation 178/2002, food businesses
are required to keep records relating to traceability. Traceability
records must be kept at all stages of the food and feed chain
including production, processing and distribution, but not sale
or provision to the final consumer, as they are not food businesses.
Internal traceability, i.e. the matching up of all inputs to outputs,
is not required.
Article 18 requires food and feed businesses to:
- identify their suppliers of; food, food-producing
animals and any other substance for incorporation into food or
feed;
- identify the businesses to which they have supplied
products; and
- maintain appropriate records and ensure that such
information is made available to competent authorities on demand
(i.e. when asked for).
However, EC law has to be interpreted according to
its purpose and account has to be taken of the relevant recitals
and the notification requirements in Article 19. In order to fulfil
the purpose of Article 19, the records kept should also include
the name and address of customer or supplier, nature of products,
and the date of transaction or delivery.
There is no specific time period for which traceability
records should be kept laid down in the Regulation. It is the
view of the Food Standards Agency that it is for businesses to
decide how long they should keep their records, bearing in mind
the nature of the food or feed, its product life and the circumstances
under which they might be required to keep records, should a notification
or assistance to enforcement authorities be subsequently required
Main general requirements of food law set out
in the Regulation
These are:
Article 14, which gives food safety requirements.
This states that food should not be placed on the market if it
is unsafe, i.e. injurious to health or unfit for human consumption.
Article 15, which gives feed safety requirements.
Article 16, which says that the labelling, advertising
and presentation of food or feed and the information which is
made available about them shall not mislead consumers.
Article 17, which sets out general responsibilities
for food and feed operators and Member States.
Article 18, which gives requirements for keeping
traceability records.
Article 19, which sets out the requirements for food
business operators with regard to withdrawal, recall and notification.
Article 20, which sets out the requirements for feed
business operators with regard to withdrawal, recall and notification.
Recording keeping requirements under Section 11
and Schedule 3 of the Deer Act 1991
| Section 11(3) - where a game dealer has purchased or received venison from another licensed game dealer, or from a venison dealer licensed under section 33 of the Deer (Scotland) Act 1996, he need record in his record book only -
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| (a) that the venison was so purchased or received
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| (b) the name and address of the other licensed game dealer or the venison dealer so licensed
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| (c) the date when the venison was so purchased or received
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| (d) the total weight of the venison |
| Schedule 3 - proforma for keeping records where venison is not purchased or received by a licensed dealer from another licensed dealer
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| Date of purchase or receipt |
| Species |
| Means by which the deer was killed |
| Particulars of carcases purchased or received (weight, sex)
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| Particulars of parts of carcases purchased or received (description, weight)
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| Particulars of seller, or in the case of a receipt the source from which receipt obtained, and registration number of vehicle delivering venison
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| Notes: |
| Date shot - where the venison comes from deer killed by the dealer
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| If killed by a rifle or smooth bore gun, enter "rifle" or "smooth-bore gun"
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| Name of premises or place in which killed - where the venison comes from deer killed by the dealer
|
Q4. Please indicate what forecasts the Department
has made of the effect of the proposed Order if implemented on
quantities of domestic game demanded and supplied.
Given that the existing regulations represent a restriction
on the market for game, it is possible that the current pattern
of exports and imports do not truly reflect the relative costs
of production. Economic welfare is maximised if the country exports
those goods which we are relatively efficient at producing, and
import those that have higher relative production costs in this
country. Removing the restrictions should improve net economic
welfare, irrespective of whether it results in an increase/decrease
in exports.
It is likely that some domestically produced game
will be sold to British consumers in the close season, replacing
at least a proportion of imports. However, the pattern of trade
in the absence of the restrictions will depend on how domestic
costs of production compare with those experienced by world suppliers,
and it is not certain what the result will be. If competitors
on world markets happen to have higher production costs, domestic
producers will still choose to export a substantial quantity of
game. Deregulation is most likely to affect informal and small
scale sellers, who are unlikely to be exporters at present and
will now have access to a market in the close season. The size
of transport and transaction costs of international trade will
affect the extent to which imports are substituted for. The overall
demand for domestic game is unlikely to change significantly,
given that the UK is not a dominant consumer of game on an international
scale.
Also, the ability to market to supermarkets through
deregulation may make information on game more readily available,
and might cause some additional increase in demand. Due to the
unavailability of requisite information on market conditions,
it is not possible to assess with confidence the potential of
this effect but our best assumption is that overall domestic demand
will not change.
Q5. Please indicate what steps the Department
has taken to establish the possible effect of the proposed Order
if implemented on levels of poaching.
The Department considers that there are existing
frameworks in place that will deal with establishing the possible
effect of the proposed Order. There are several Agencies already
in place to enforce current legislation.
1) The National Wildlife Crime Unit (NWCU) was launched
in October 2006. A multi-agency operation, the NWCU gathers, analyses
and co-ordinates wildlife crime intelligence and supports the
enforcement activities of police and HM Revenue and Customs officers
in the UK. A national strategy has been devised with the assistance
of The
Partnership for Action Against Wildlife Crime (PAW) which
will ensure a strategic approach is taken to tackling wildlife
crime and prioritising areas of concern. The Unit has a robust
national tasking and co-ordination system in place to ensure that
the right issues are dealt with, with the right resources and
maintaining the strategic oversight needed from key stakeholders.
It will create and develop a more sophisticated response to wildlife
crime priorities, using appropriate technologies and techniques.
Departmental officials regularly meet with the Police
mainly through the PAW. Should the NWCU record increasing instances
of poaching they would raise this issue directly with Department
officials or through the wider forum of the PAW Steering Group.
Steps could then be taken to raise enforcement activity where
it was required.
2) The 178/2002 EC Regulations are enforced by: The
Food Standards Agency (Articles 14 and 19); The local Food Authority
(Trading Standards and/or Environmental Health) or the local Port
Health Authority (Articles 14, 16, 18 and 19). Under Article 18
of EC Regulation 178/2002 food businesses are required to keep
records relating to traceability. Traceability records must be
kept at all stages of the food and feed chain including production,
processing and distribution, but not sale or provision to the
final consumer, as they are not food businesses. Therefore, if
asked, game dealers would have to produce records indicating the
source of the game they were selling. The new offence of selling
or possessing game that had been unlawfully killed should also
deter game dealers from sourcing game birds from unscrupulous
persons.
Q6. Please explain what consideration the Department
has given to the possible impact of the proposed amendments to
the game laws on i) the conservation of non-game species such
as birds of prey, ii) what reasons it has for its conclusions
in respect of any forecast effects and iii) what plans it has
for monitoring the effect of the proposed Order on non-game species.
The Department does not believe that the proposal
to abolish the game licensing system will have a concomitant impact
on the conservation of non-game species such as birds of prey.
The Department does not anticipate an increase in shooting of
non-game species because a licence to kill game birds is no longer
required. The licensing system is not regarded as a barrier to
participation, and the proposal to allow the sale of game on a
year round basis should not, as outlined in the answer to question
4 above, lead to a significant increase in the market for game.
We do not expect any level of illegal activity against non-game
species associated with game shooting that may occur to increase.
Consultees did not indicate that they felt that shooting
would increase as a result of abolishing the licence; instead,
they were concerned that deregulating a licensing regime linked
with the possession of firearms may result in unlicensed possession
of firearms. However, the proposal does not affect any legislation
governing the possession of firearms which will still be regulated
under the provisions of the Firearms Act 1968.
The majority[21]
of game birds are "reared and released" for game shoots
and any interactions around release pens tend to involve sparrowhawks
(40,000 pairs in Britain), buzzards (38,000 pairs in Britain)
or tawny owls (19,000 pairs in Britain). None of these three species
are birds of Conservation Concern[22]
in the UK.
Game managers and gamekeepers can employ a range
of legal methods to deter birds of prey from release pens. The
British Association for Shooting and Conservation (BASC) has produced
a practical guide for game managers and gamekeepers on "Birds
of Prey at pheasant release pens" and notes that "in
most cases, birds of prey appear to take relatively few poults,
but in exceptional circumstances predation can be a problem."
The BASC guide offers practical advice to gamekeepers for legally
managing predator losses, in addition, BASC recommends that gamekeepers
also follow the Code of Good Shooting Practice where it is recommended
that a few extra poults are released to allow for predator losses.
With respect to moorland game birds such as grouse,
interactions may occur with other birds of prey such as hen harriers
and peregrine falcons. As far back as 1995, Defra and its predecessors
have worked with interested parties to address the perceived conflicts
between the recovery of some bird of prey populations and their
impacts on game birds and moorland management[23].
This work is continuing under the auspices of the Hen Harrier
Stakeholder Dialogue - a neutrally facilitated process to establish
the views of stakeholders and their ideas for resolving the hen
harrier/red grouse conflict.
In February 2004, the Police launched Operation Artemis[24].
At the commencement of Operation Artemis, farms and shooting estates
with breeding hen harriers, or habitat suitable for breeding (heather
moor), were visited by Wildlife Crime Officers/Rural Beat Officers.
In an attempt to reduce inadvertent unlawful activities, affecting
hen harriers, heather moor managers were provided with a comprehensive
document outlining the legal status of the hen harrier and the
aims of Operation Artemis, together with a Code of Best Practice
in relation to hen harrier habitat management. Wildlife Crime
Officers and the Operation Artemis Co-ordinator continue this
dialogue. In England, crime prevention schemes using a variety
of scientific and technical techniques together with a large number
of volunteers are deployed during the breeding season. This has
lead to a year on year increase in the number of young birds fledging.
Monitoring and bird protection is now a year round activity by
Operation Artemis volunteers.
With regard to wild bird populations in general,
the Government has a comprehensive monitoring system in place
to detect trends in these populations. The UK has a well developed
"alerts system" based on various bird surveys. Following
each year's survey results, the British Trust for Ornithology
(BTO) prepares an advisory letter to the UK Governments' statutory
nature conservation advisor, the Joint Nature Conservation Committee
(JNCC), giving any alerts. The alerts highlight or confirm long
term trends of which the JNCC is aware, rather than demonstrate
immediate and unexplained population crashes. The alerts system
is based on long-term biological information and it is dangerous
to try to identify "trends" from one year's data set.
The advisory letters highlight to the JNCC the species and issues
where further research is desirable (to understand the causes
of declines - this influences the BTO/JNCC Partnership work programme
and is also used to advise the UK Biodiversity Action Plan process).
Further recent legislation was introduced in 2006
to provide additional protection to birds of prey. The Natural
Environment and Rural Communities Act 2006 introduced a new offence
of the possession of pesticides that are harmful to wildlife.
The Secretary of State can list those ingredients of pesticides
that he believes could cause harm to wild birds and/or animals.
This means that it will be an offence to possess a pesticide containing
a prescribed ingredient unless it can be shown that possession
was for lawful use in accordance with relevant pesticide, biocide
or poisons legislation.
This provision is necessary because, while it is
already an offence under section 5(1) of the Wildlife and Countryside
Act 1981 to use, or set in position, poisons to kill or injure
wild birds, it has proven difficult to achieve successful prosecutions
for this offence, by linking known poisoning cases to particular
individuals, even where there is circumstantial evidence to suggest
that they may be responsible for the illegal poisoning, and they
have a motive. The Department plans to issue a consultation on
ingredients of pesticides that should be listed on an Order later
this year.
Q7. Please confirm the number of respondents and
of responses received to the consultation on the proposals under
section 5 of the Regulatory Reform Act.
Defra received 186 responses to the consultation,
43 from stakeholder organisations and 143 from private individuals.
Please find enclosed a copy of the summary of responses at Annex
1 which has been updated and finalised. As a result of a campaign
by the League against Cruel Sports, 132 members of the public
commented on the proposal to remove the restriction on shooting
on Sundays and/or Christmas day and did not consider the other
proposals in the consultation paper.
Q8. Please explain the basis for the calculation
of statistics for the analysis of consultation responses given
in Appendix A of the Explanatory Statement. Where the Annex states
that a given percentage was either in favour of or against a specific
element of the proposal what account has been taken in the compilation
of these statistics of responses which expressed no view either
for or against the proposition in question.
The statistics for those in favour or against a specific
proposal were based on those who clearly expressed a preference
to a particular answer only. Those who did not respond to a specific
question were not included in the statistics for that question.
As well as the overall percentages for or against
proposals, statistics for stakeholder organisations and members
of the public were given separately.
Please find enclosed copies of the summary of responses
that have been update and finalised at Annex 1.
Q9. Please explain what steps the Department has
taken to satisfy itself that no incompatibility exists between
the proposal and obligations arising from UK membership of the
EU.
The Department is satisfied that there is no incompatibility
between the proposal and obligations arising from UK membership
of the European Community under the EC Council Directive on the
conservation of wild birds (79/409/EEC) (the "Birds Directive")
as members of the European Community.
A summary of the relevant articles of the Birds Directive
in relation to species protection are (the full text of the articles
is appended at Annex 2):
- Article 5 (establishing a general system of
protection for all species of wild birds);
- Article 6 (prohibition of sale and transport
of live or dead birds or their derivatives - except for lawfully
sourced species referred to in Annexes III/I and III/2 to the
Birds Directive);
- Article 7 (sustainable hunting provisions in
relation to species referred to in Annexes II/1 and II/2 to the
Birds Directive);
- Article 8 (prohibition of large-scale or non-selective
methods for the capture of killing of birds and prohibition of
hunting from certain modes of transport); and
- Article 9 (derogations from Articles 5, 6,
7 and 8 where there is no other satisfactory solution).
All of the game birds covered under the Game Acts
are in Annex II and III of the Birds Directive and so can be lawfully
sold and hunted under our European obligations. The United Kingdom
has consulted the European Commission about the species listed
in Annex III/2 as required by Article 6(3) of the Birds Directive.
In England and Wales, most of the above species protection
obligations for wild birds are fulfilled through the 1981 Act.
Game birds are excluded from the definition of "wild bird"
in the 1981 Act because they are generally protected by provisions
in the Game Act 1831 (e.g. prohibition on killing during the close
seasons). There are two exceptions to this exclusion:
- section 5 (prohibition of certain methods of
killing or taking wild birds); and
- section 16 (power to grant licences) of the
1981 Act (to enable derogations from the offence in section 5
as it applies to game birds).
The new offence of selling an illegally acquired
game bird, set out in response to earlier questions above, is
consistent with our European obligations.
There are no EC obligations relating to game licensing.
20 Council Directive of 2nd April 1979 on
the Conservation of Wild Birds (79/409/EEC) Back
21
The Game Farmers Association put the figure for birds reared for
release at 20-30 million, of which the majority (80%) are pheasants
and most of the rest (16-17%) are red-legged partridge. The final
few percent are grey partridge and ducks. Back
22
http://www.jncc.gov.uk/page-2902 Back
23
www.jncc.gov.uk/pdf/raptors.pdf Back
24
www.savethehenharrier.com/(dgt1g355jsbba1ec1ki3o455)/opartemis_frameset_master.html Back
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