Instruments drawn to the special attention of the House
Wildlife and Countryside Act 1981 (Variation of Schedule 9) (England) (No. 2) Order 2021 (SI 2021/548)
Date laid: 5 May 2021
Parliamentary procedure: negative
This Order prohibits the release of common pheasants and red-legged partridges into certain protected areas or within a buffer zone of 500 metres around these areas or letting these species escape into such areas where this is done without a licence. The instrument is time-limited and will expire in May 2025. We are concerned about the tight timetable: statutory guidance about the new interim licensing regime has been published with less than a month to go before gamebirds will be released into the wild. We also regret that the explanatory material does not provide all the information that is needed to understand fully the policy objective and intended implementation of the instrument: the Department has provided only limited information in the Explanatory Memorandum about how the licensing regime will operate, the exemptions that will be applied, the views expressed during consultation, and a Judicial Review brought against the Department which is the underlying reason for introducing the new licensing regime. We are also concerned about the practicality of making it an offence to let gamebirds escape into protected areas, about an apparent inconsistency of this provision with the statutory guidance, and about the ability of the authorities to enforce the new regime and to establish who is responsible for the escape of any gamebirds.
The Order is drawn to the special attention of the House on the grounds that (1) the explanatory material laid in support provides insufficient information to gain a clear understanding of the instrument’s policy objective and intended implementation, and (2) that it may imperfectly achieve its policy objectives.
1.This Order has been laid by the Department for Environment, Food and Rural Affairs (Defra) with an Explanatory Memorandum (EM). The Department has also provided a Justice Impact Test Form, which considers the impact of the Order on the justice system, and a Statement of Economic Impact.
What this instrument does
2.The Order amends Part 1 of Schedule 9 to the Wildlife and Countryside Act 1981 (“the 1981 Act”) which lists non-native wild animals which may not be released or allowed to escape into the wild unless this is authorised by a licence. The instrument adds the common pheasant and red-legged partridge to Part 1 of Schedule 9 in relation to areas in England that are European sites1 on 31 May 2021 and within a buffer zone of 500 metres around such sites. This means that the release of these species or allowing these species to escape into these geographic areas will be prohibited unless there is a licence to do so.
Sunset provision
3.The licence requirements will be temporary: the use of a sunset provision (regulation 4) means that the instrument will expire on 30 May 2025. The instrument also requires that the effectiveness of the interim licensing regime will be reviewed before 30 May 2024.
4.Defra explains that the Conservation of Habitats and Species Regulations 2017 (the “2017 Regulations”) require the Government “to take appropriate steps to avoid the deterioration of natural habitats and the habitats of species on European sites as well as significant disturbance of the species for which the sites have been designated”. The Department says that it commissioned a review of the legislative arrangements in relation to the release of common pheasants and red-legged partridges which concluded in October 2020.2 According to Defra, this Order draws on the conclusions of the review and ensures compliance with the legal obligations contained in the 2017 Regulations. Defra says that the interim regime is to “provide an additional, precautionary layer of protection whilst we improve our understanding of the impacts of releases and consider the wider regulatory framework for avoiding detrimental impacts to these sites”. Defra concludes that the intention is for the licensing regime to be a temporary measure until a satisfactory long-term alternative is in place that meets the legal obligations in the 2017 Regulations.
How the interim licensing regime will operate
5.The EM states that the licensing regime includes a permission to release pheasants and red-legged partridges if the conditions of a general licence are met. According to Defra, these conditions include limits on the density of birds being released, as well as requirements to ensure birds are not encouraged into the protected site from the buffer zone and to supply information on the release to Natural England. More details on the licence conditions have been published in the form of statutory guidance since the Order has been laid before Parliament.3 The EM also refers to individual licences but does not explain how these will differ from the general licence. We asked the Department for further information about the licensing regime. Defra responded that:
“General licences give broad permissions to undertake activities under prescribed conditions. Provided that the conditions are met, the licence user does not have to make any application to Natural England. If the licence user will be unable to comply with the conditions of the general licence—i.e. they want to undertake activity that falls outside the activities described in the general licence—then they need to apply to Natural England for an individual licence.
Natural England will decide what the conditions of any individual licence will be in conjunction with the applicant.”
6.We note that there appears to be an inconsistency between the provisions in the Order which make it an offence to allow common pheasants and red-legged partridges to escape into protected areas in England without a licence, and the statutory guidance which states that any activity “must not encourage the released birds to inhabit or occupy an adjacent European site”. We take the view that the statutory guidance appears to offer a more realistic approach to the not inconsiderable challenges of trying to prevent the movement of gamebirds in the wild. The mismatch between the provisions in the Order and the statutory guidance again raises concerns about the relationship between guidance and legislation which we have expressed repeatedly before.4
7.Asked about the monitoring and enforcement of the licensing regime, Defra told us that “European sites are routinely monitored by Natural England who have their own enforcement powers”, and that “the police can also enforce the licence”.
8.We question how enforcement of the new regime will work in practice: the House may wish to ask the Minister how Natural England or the police will be able to establish who is responsible for the escape of any gamebirds into protected areas if there is more than one shoot releasing birds near these areas.
9.We also asked the Department whether there was sufficient time to grant licences: the new regime will be launched on 31 May, while this year’s release of gamebirds will begin in June. Defra explained that:
“The general licence will be in place by 31 May 2021 in time for gamebird releasing to begin in June [ … ]. Licence users do not need to apply to use the general licence and, based on industry feedback, we expect most shoots to be able to operate within it. Natural England [NE] have been working with shooting industry organisations to develop an advice service that they will launch when the licence is published. The advice service is designed to help any licence user who is unsure about whether they need to apply for an individual licence. NE anticipate being able to respond within 48 hrs and have put in place dedicated resource to process any individual licence applications swiftly.”
10.It would have been helpful for the EM to provide a fuller explanation of how the licensing regime will operate, and we are concerned that statutory guidance with key details of this new regime was published less than a month before the regime will be launched and before gamebirds will be released into the wild. This gives businesses limited time to prepare. In addition, the lack of detail in the EM limits the ability of Parliament to understand and scrutinise the policy objective and intended implementation of this instrument.
Exemptions
11.The Justice Impact Test Form that the Department has provided states that: “Not all European sites are expected to be within the scope of the licensing regime”, adding that the “final decision will only be made following the conclusion of the consultation process and assessment of the responses”. Defra adds that “at present we are proposing that European sites (and their buffer zones) that are either wholly below the mean high-water mark or considered to be at no risk from releases of common pheasant and red-legged partridge are excluded from the scope of the SI and therefore from the need for a licence”, concluding that “we believe that 87 such sites will be excluded, but this figure is subject to change”.
12.Defra was unable to confirm these exemptions to us, stating that: “We cannot comment on the details of the general licence until they are published. The exemption that was consulted on was 87 sites out of a total of 344 sites.”
13.We regret that final details about any exemptions from the licensing regime were not made available at the time that the instrument was laid before Parliament. This further limits the ability of members of the House to understand fully and scrutinise the policy objective and intended implementation of this instrument.
Judicial Review
14.The EM refers to a Judicial Review (JR) launched against Defra without providing further detail. We asked the Department who had brough the JR and about the outcome. Defra told us that:
“The JR was brought by Wild Justice (a wildlife NGO set up in 2019 that uses court cases as their primary approach) in early 2020. However, at this stage work had already commenced on a review [see paragraph 4 above] commissioned by the Secretary of State [to] consider the legislative arrangements around the release of the common pheasant and red-legged partridge on and around European protected sites and whether there were ways in which their effectiveness could be improved.
The review concluded in October 2020 and found that any negative effects of gamebird releases on protected sites tend to be localised and that there are minimal or no effects beyond 500m from the point of release. It also highlighted a need to gain a better understanding of the impacts and how any impacts—particularly local ones—might be mitigated. The Secretary of State committed to introducing a new interim licensing regime for the 2021 releases of common pheasant and red-legged partridge within European protected sites and within a 500m buffer zone around these sites to enable any potential impacts to be managed while more information was gathered where evidence gaps existed. This was set out in a witness statement to the court as part of the judicial review proceedings, after which the judicial review was withdrawn.
The SI forms the basis of the new interim licensing regime by prohibiting the release of these birds on the relevant areas except under licence. A general licence permitting the release of these birds in these areas has been developed and will be published shortly.”
15.We take the view that Defra should have included a fuller explanation of the JR in the EM, as this information is key to understanding the rationale for the new interim licensing regime.
Consultation
16.The Department states in the EM that the “level of public interest in the policy is low overall”, but also explains that a three-week public consultation between 23 February and 15 March 2021 received a total of 2,192 responses. While, according to Defra, almost 44% of those responses were part of a campaign by Wild Justice, this still leaves 56%, or more than 1,200 responses, from other interested parties, suggesting considerable public interest. Defra says that the responses were “largely polarised, with participants supporting either the shooting industry, suggesting the regime was too restrictive, or [environmental non-governmental organisations] suggesting the proposed regime will not adequately protect sites from damage”. To date, the Department has not published an analysis of or its response to the feedback received during consultation.
17.We regret that the Department has not yet published an analysis of the consultation responses: our guidance to departments5 makes clear that such an analysis should be made available when an instrument is laid before Parliament, so that Parliament can consider the views that were expressed during consultation and the Government’s response. We urge the Department to publish an analysis without further delay and to take steps to ensure that this oversight does not occur again.
Impact
18.According to the EM and Impact Statement, the changes made by this instrument will “primarily be felt by the shooting industry”, with between 517 and 708 shoots affected and the total economic cost estimated to be £2.4 million (present value over four years, best estimate). The EM states that the final equivalent annual net cost to business figure is subject to final validation by the Regulatory Policy Committee (RPC) and that a full Impact Assessment (IA) will be published once it has been cleared by the RPC.
19.We asked the Department why the IA had not been submitted earlier to the RPC to ensure that it would be ready for publication alongside the instrument. Defra told us that while the Department would normally not be required to produce a regulatory IA for this instrument, this has been done “in order to ensure that the potential impacts of the interim regime are properly assessed and understood”, adding that the:
“pace of this project has been driven by Defra’s commitments to the court—we have involved the RPC from the outset and this was the fastest process we could undertake in the time available. The RPC has now concluded their assessment and deemed our RIA to be fit for purpose and green-rated. We will now proceed to publish the RIA as set out in the Explanatory Note to the SI.”
20.We regret that the IA was not published when this Order was laid before Parliament: our guidance to departments6 sets out that where an IA has been prepared, it should be made available to Parliament at the same time the instrument is laid before Parliament, and that lack of validation by the RPC is an internal planning matter for the department and not an acceptable excuse for failing to present all the necessary documentation to Parliament.
21.Given that concerns about the release of gamebirds into European sites relate to the ecological impact these birds have on these protected areas,7 we asked the Department how many gamebirds are typically released per year, and to what level the new licensing regime was expected to reduce this number. Defra did not provide any figures but, according to Natural England, “it is currently estimated that between 39 and 57 million pheasants and 8.1 and 13 million partridges are released in the UK, with 85% of these in England”. Defra told us, however, that the new licencing regime does not aim to reduce the number of birds which are released:
“The aim of the general licence is not to reduce the total number of these birds that are released in these areas to a specified number, but to ensure that releases that are permitted under the general licence (as opposed to an individual licence) do not adversely impact upon the integrity of the European sites in England. Part of the intention with the licensing regime is to improve the evidence base about the scale and impact of gamebird releases on these areas.”
Conclusion
22.The new interim licencing regime is of wider interest, as demonstrated by a considerable number of consultation responses and the JR brought against the Department. We regret that the Department has failed to provide in the EM key information that is needed to understand fully the policy objective and intended implementation of the instrument, including in relation to how the licensing regime will operate, the exemptions that will be applied, the views expressed during consultation and the JR. We are also concerned about the practicality of making it an offence to let gamebirds escape into protected areas and about an apparent inconsistency of this provision with the statutory guidance which appears to offer a more realistic approach to the not inconsiderable challenges of trying to prevent the movement of gamebirds in the wild. The House may wish to ask the Minister how the authorities will be able to establish who is responsible for the escape of any gamebirds into protected areas if there is more than one shoot releasing birds near these areas. The Order is drawn to the special attention of the House on the grounds that the explanatory material laid in support provides insufficient information to gain a clear understanding of the instrument’s policy objective and intended implementation, and that it may imperfectly achieve its policy objectives.
1 European sites include Special Areas of Conservation (SACs) and Special Protection Areas (SPAs), as defined in regulation 8 of the Conservation of Habitats and Species Regulations 2017 (SI 2017/1012)
2 Defra, ‘Review of gamebird releases on and around European protected sites’ (30 October 2020): https://www.gov.uk/government/publications/review-of-gamebird-releases-on-and-around-european-protected-sites [accessed 13 May 2021)
3 Defra, GL43: licence to release common pheasants or red-legged partridges on European sites and within 500m of their boundary (12 May 2021): https://www.gov.uk/government/publications/gamebirds-licence-to-release-common-pheasants-or-red-legged-partridges-on-european-sites-and-within-500m-of-their-boundary-gl43/gl43-licence-to-release-common-pheasants-or-red-legged-partridges-on-european-sites-and-within-500m-of-their-boundary [accessed 13 May 2021]
4 See: Interim report on the Work of the Committee in Session 2019–21 (39th Report, Session 2019–21, HL Paper 200) and Work of the Committee in Session 2019–21 (54th Report, Session 2019–21, HL Paper 276)
5 Secondary Legislation Scrutiny Committee, Guidance for Departments laying instruments for the Secondary Legislation Scrutiny Committee: https://publications.parliament.uk/pa/ld5801/ldselect/downloads/Guidance-for-departments-on-statutory-instruments-Feb-2020.pdf, see para 30
6 Ibid, see para 37
7 Natural England, ‘Ecological Consequences of Gamebird Releasing and Management on Lowland Shoots in England’ (20 August 2020): http://publications.naturalengland.org.uk/publication/5078605686374400 [accessed 13 May 2021]