Thursday, 24 October 2013
The tragic death of TIM LAWMAN
There will be a celebration service for Tim Lawman, Hayling birder and
Hampshire's highest county lister, who tragically died whilst twitching the
Radde's warbler on 13th October. The service will be held at St Mary's Church,
Hayling Island at 2.30pm on Wednesday 30th October. It would be great to see
some of Hampshire's birders there! (contributed by Andy Johnson)
Monday, 21 October 2013
More bad news on the Turkish BALD IBIS front
Northern
bald ibis – Abrupt end to 2013 Turkish tagging release trial?
The trial release of six ibis from the semi-wild colony at
Birecik, three of which were satellite tagged, has ended abruptly, and
unfortunately, we don't have a clear idea as to what has
happened.The birds were released in late July and, after an initial spell staying nearby in Turkey, five of th e six (including all three tagged birds) suddenly moved off south in August and most intriguingly ended up stopping for almost three weeks very close to the last Syrian colony near Palmyra... where only one adult of the truly wild population had spent the spring this year. The birds then started moving again in early September, but instead of heading further south, they moved west towards Homs and just a few days later all three tagged birds stopped transmitting within a few hours of each other - we don't have very clear information on the exact last locations, and its obviously not an area that could be searched owing to the current security situation.
So we are left speculating as to what might have happened. We did have a similar experience with birds released in 2008 which suddenly stopped transmitting in Jordan, and Sharif Al Jbour from the BirdLife Middle East Office managed to drop everything and immediately get to the site an d locate the corpses of three birds under an electricity pylon. One of the tags had been subjected to very high voltage which led us to conclude that electrocution was probably the cause of death. It could well be something quite different this time of course - the tagged birds that stopped transmitting in northern Saudi Arabia in 2009 and 2010 seem most likely to have been hunted... but we may never know for sure.
Chris Bowden
BADGER killers wallow in profound confusion
BADGER
KILLERS WALLOW IN NEW CONFUSION
The Prime Minister, the Defra Secretary of State and the National Farmers’ Union are wallowing in even more confusion over killing badgers. Every day brings more news of muddle in their misguided methods.
The Prime Minister, the Defra Secretary of State and the National Farmers’ Union are wallowing in even more confusion over killing badgers. Every day brings more news of muddle in their misguided methods.
•
The requested massive extension of the killing period widely reported for
Gloucestershire more than doubles the original six weeks to 14. This is yet
another contemptuous and wilful swipe against science following an extension and
gerrymandering with badger populations in Somerset presided over by Owen
Paterson, Secretary of State for the Environment, Food and Rural
Affairs.
•
Extensions of the time allowed for killing risk an even lower benefit by
splitting up the culling areas into too many sectors, which may cause more
disruption of the badger population and therefore a higher prevalence of bTB
[1]. The keynote Randomised Badger Culling Trial (RBCT) [2] emphasised that any
culling would have to be done quickly across the areas – 12 days in that case
against the six weeks in the licences for the current “pilot” culls and the nine
and fourteen now contemplated.
•
The Coalition’s allies in the National Farmers’ Union are restive – from its
reportedly embattled president to the farmers and landowners who could face a
massive bill from the Coalition.
•
A U-Gov poll has shown an almost three-to-one verdict against badger culling
[3].
•
Now there is open discussion of gassing and even snaring – both grossly inhumane
– in thrashing about to find a cheap and nasty way of attacking a hitherto
protected species.
Killing badgers is a sideshow
The Badger Trust again calls for a sense of proportion: killing badgers is at best a sideshow. It can make no meaningful contribution to the eradication of bTB in Great Britain, according to the RBCT.
Killing badgers is a sideshow
The Badger Trust again calls for a sense of proportion: killing badgers is at best a sideshow. It can make no meaningful contribution to the eradication of bTB in Great Britain, according to the RBCT.
The
real answer should be vaccination of cattle when available and the rigorous
application of measures of the kind the cattle industry resisted for 20 years,
but which have now been imposed only this year by the European
Union.
The
current pilot trials have already been claimed to cause a substantial increase
in illegal killing. There can be no doubt that persecution of badgers will
escalate. The licences are seen by some as a green light to slaughter
badgers.
Owen
Paterson would like the legal protection of badgers to be removed and has also
said that in order to eradicate bTB, hard culling of badgers will be required
for the next 25 years.
Extension of BADGER cull unlawful
19th October 2013
LETTER
BEFORE ACTION
Bindmans
LLP, the solicitors acting for Badger Trust, issued the following letter to
Natural England and the Treasury Solicitor for Secretary of State of DEFRA on
18th October 2013:
**CPR 54
PRE-ACTION PROTOCOL LETTER**
|
Dear Sirs
Proposed Claimant: Badger Trust
Proposed Defendants: Natural England and Secretary of State for
DEFRA
We write further to our pre-action correspondence on 11 October and your response of 17 October.
We understand that the Board of Natural England will shortly be considering an application to grant a licence to cull badgers for a further 8 weeks in Gloucestershire.
We ask them to consider this letter when they do so. It explains why we consider it would be unlawful to grant that further licence. On that basis we ask them not to do so.
Background
In overall terms, as explained below:
• The stated purpose of the culling was to test the effectiveness of the methods in question in reducing the badger population by 70% within 6 weeks maximum.
• That period was widely consulted upon and then robustly defended by DEFRA (including in the face of certain consultees arguing that longer should be allowed for reasons of practicability) on the basis of the expert opinion of the DEFRA Science Advisory Council and TB Science Advisory Board.
• DEFRA promised that the cull would be monitored by the independent expert group. The group was to evaluate and report on the outcome of its testing, including of effectiveness in reducing the badger population by 70% within 6 weeks.
That was
explained in many places over a long period by DEFRA and its CVO, Mr Gibbens
including as follows.
DEFRA’s policy announcement of December 2011 had explained in clear terms (in its paragraph 5.4) what was to happen:
“… culling will be piloted in two areas, to test our assumptions about the effectiveness, humaneness and safety of controlled shooting, overseen by an independent panel of experts. If monitoring of the humaneness, effectiveness and safety indicates that controlled shooting is an acceptable culling technique, then and only then would this policy be rolled out more widely.”
As for what was meant by “effectiveness”, its paragraph 5.30 explained that:
“Culling would also need to be carried out simultaneously across the entire area, so that culling takes place on all participating land within a maximum period of six weeks.”
See also paragraph 5.34:
“In the first year of culling, a minimum number of badgers must be removed through an intensive cull which must be carried out throughout the land to which there is access, over a period of not more than six consecutive weeks.”
That approach was specifically defended and relied on in the Secretary of State’s defence before Ouseley J and the Court of Appeal of our client’s challenge to the legality of what was to happen.
See thus paragraph 35(b) of the Secretary of State’s Detailed Grounds of Resistance:
“Culling will be allowed to take place over a maximum of 6 weeks, rather than over 8-11 nights as in the RBCT.”
See also paragraphs 38-39:
“In terms of the duration of the cull and the fact that it will be allowed to take place for a maximum of 6 weeks rather than over 8-11 nights (as in the RBCT), the Secretary of State has had to take into account the practical considerations in the light of the available scientific evidence. In designing the policy it was not practical or realistic to deliver culling simultaneously (i.e. over a few days) across such a large area (150 km2). As explained by the Chief Veterinary Officer, this issue was considered by DEFRA’s Science Advisory Council and bTB Science Advisory Body … Consequently, the decision to allow culling over a maximum period of 6 weeks was taken in the light of advice from relevant scientific experts in the field.”
On behalf of DEFRA Mr Gibbens firmly explained the purpose of the pilot culls (8d in his second witness statement):
“In relation to ‘effectiveness’ specifically, the purpose is to confirm our assumption that controlled shooting will be an effective method to reduce the population of badgers by 70% within 6 weeks.” [bold added]
On February 2013, in a written Ministerial Statement to Parliament that the pilot badger culls were to proceed this year, the Secretary of State restated that as being the purpose of what was to happen:
“The policy is being piloted in two areas to test our assumptions about the effectiveness, humaneness and safety of controlled shooting.” [bold added]
That is still explained currently as the position on the DEFRA website, as follows:
“As a first step, there would be a pilot of the policy in two areas to confirm our assumptions about the effectiveness (in terms of badger removal), humaneness and safety of culling.” [bold added]
The website also explains (as part of a public statement on 27 February 2013 confirming that the pilot culls would proceed in 2013, and again entirely consistently with what was set previously) that:
“The pilots are being carried out to test the chosen method of culling through free shooting. The pilots will be independently assessed to check the method is both effective in removing enough badgers and humane.” [bold added]
The December 2011 policy statement had promised the following (paragraph 5.42):
“The design and evaluation of the pilots will be overseen by a panel of independent experts, whose role will include overseeing the design of the data collection, its analysis and interpretation. A decision on further roll-out of a policy that allows controlled shooting will be made following evaluation of results from the six weeks of culling.”
Then at paragraph 6.1:
“As noted at paragraph 5.3 above, controlled shooting will be piloted in two areas initially in the first year in order to test our assumptions about the humaneness, effectiveness and safety of this control method. Culling will be closely monitored in these two areas. The monitoring will be overseen by a panel of independent experts, who will advise on the appropriate methods for monitoring effectiveness and humaneness.”
DEFRA’s response to our client’s judicial review challenge promised this (paragraph 40b):
“The effectiveness and humaneness of controlled shooting will be monitored during the pilots and thus monitoring will be overseen by a panel of independent experts.” [40b]
Mr Gibbens (writing jointly with DEFRA’s Chief Scientific Officer) made the same point in a public statement on 11 December 2012:
“[The pilot culls] will be overseen and evaluated by an independent panel of experts who will report their findings to ministers.”
As for the 6 week upper limit mentioned above, Mr Gibbens had previously explained (41 in his first witness statement) that “culling will be allowed to be carried out over a maximum of six weeks”.
The six weeks was, itself, controversial. Our clients and others had argued that a cull taking that long (and so much longer than in the RBCT) could not lead even to the impacts claimed by the RBCT (the conclusions of which were relied on by DEFRA as showing the bTB control benefits of culling.
Mr Gibbens rejected that contention (8c in his second witness statement), not by reference to his own expertise or judgment, but in sole reliance on the conclusions of the experts who had advised DEFRA (as in his NG5) – the joint Science Advisory Council/BTB Science Advisory Board.
The Secretary of State’s skeleton argument also relied solely on those experts on the point. See thus paragraph 28b which explained the ‘minimum criteria’ for the cull, including thus the 6 week limit, which was specifically said to be “based on the advice of the combined DEFRA SAC and SAB” and explained that “The definition of ‘up to six weeks’ is the expert opinion of DEFRA’s SAC and SAB.”
Natural England also relied on those expert groups in supporting the 6 week limit in its own response to the consultation which proceeded adoption of the policy.
Notably, according to DEFRA’s own Summary of Responses to the consultation on the Guidance to be given to Natural England, some respondents argued at the time for a longer period precisely because of concerns about the practicability of completing the task within 6 weeks (i.e. the very thing which has now come to pass). DEFRA robustly rejected that (and other suggestions to change the proposed criteria):
“We do not propose to change fundamentally the licence criteria, as they are criteria which the evidence suggests are necessary to realise the overall reduction in TB in cattle in culled areas achieved in the RBCT. The rationale for each of the criteria is explained in the [December 2011] Policy Statement.”
In other words: what has happened now was foreseeable, and foreseen, and did not change DEFRA’s view that a 6 week limit should be set.
What has happened now
We understand that the licence issued under section 10(2)(a) Protection of Badgers Act 1992 to allow for the culling of badgers over the 6 week pilot period in Gloucestershire expired on 15 October 2013.
We understand from DEFRA’s news announcements yesterday that only 30% of the relevant badger population has been killed within the 6 week period in that area - well short of the 70% minimum target which had been identified as “effective”.
The cull has thus met its purpose in testing the “effectiveness” (in DEFRA’s terms) of culling. It has shown it not to be effective.
However, as far as our clients are aware, the independent expert group which was to monitor the cull and evaluate and report on its outcome has done neither of those things.
Instead, we understand that Natural England is now considering an application to grant a fresh licence (it would not be an extension given that the previous licence has run out) to allow for another 8 weeks of culling in Gloucestershire.
At 17.21 yesterday Natural England sent us:
(1) a copy of advice dated 3 October 2013 from Mr Gibbens supportive of extending the parallel cull in Somerset (after it had achieved a higher rate of killing than in Gloucestershire, but still only 58%).
(2) a copy of a letter from the Secretary of State of 10 October 2013 to Natural England which seems intended to supplement the Statutory Guidance (which itself had been the subject of public consultation even following the original consultation which underpinned the culling policy itself) previously given to Natural England in which 6 weeks had been specified as the limit for the culling pilot.
We consider that the decision to extend the cull in Somerset was unlawful, particularly in the light of those documents. But given that we have only just seen them and given the relatively shorter extension there, we have advised our clients that it would not now be practicable (given the court process) to seek injunctive relief to prevent it.
But that is not the case in relation to the contemplated decision in relation to Gloucestershire not least because of the much longer extension (8 weeks) being sought (and not yet granted) and the fact that our clients have now seen the nature of the arguments being relied on to justify further culling.
In particular, we assume for this purpose that Mr Gibbens has given similar advice in relation to the Gloucestershire proposal; and that the Secretary of State has written a similar letter. We wrote to you to request these earlier today, and look forward to receiving them with your reply.
We note in that regard that neither document even addresses the actual purpose of the pilot at all: namely to test (so far as is relevant here) the effectiveness of culling (as explained) in reducing the badger population by 70% in 6 weeks. That purpose has now been met, as above, by culling being demonstrated not to be effective in that regard.
Moreover, neither document acknowledges the fact that our clients, the affected communities, and others were repeatedly promised (as above) that the cull would last no more than 6 weeks; and that its effectiveness (on that basis) would then be evaluated at that point by the independent expert group.
Neither document refers to the views of the TBSAB and SAC. We infer that neither was consulted or provided expert input into decision on the new culling period.
Importantly, Mr Gibbens identifies no new material or change of circumstance which could justify the dramatic change of stance which he advocates.
In particular, the only factual change from the position when the policy and guidance was being developed (or when the licence was granted) is the reduced badger number estimate. But that is not the issue here.
On the other hand, the possibility that it might prove practical to cull 70% of the badgers in 6 weeks (i.e. the situation now faced) was precisely contemplated and considered by DEFRA as above. In particular, it was raised by consultees (who presumably argued for a longer period or more flexibility) and – reliant on its expert advice – DEFRA nonetheless stuck with, and robustly defended, the 6 week limit. In particular, it did not then suggest that it might be necessary or appropriate to press on if the 70% target was not reached in the 6 weeks (as has happened now). Nothing has been identified to change that approach, but Mr Gibbens nonetheless appears to have changed his advice about how to respond to that entirely foreseeable and foreseen circumstance.
We note that the letter mentions a provision in the agreement entered into (pursuant to the Guidance) by Natural England and the company carrying out the culling which allowed a mechanism for them to agree extensions to the culling period. But that provision was plainly inconsistent with the Guidance and with the DEFRA’s own policy as above. In any event the fact that a contractual mechanism was put in place does not lend any weight to an argument that it should be deployed, let alone in these circumstances.
Overall, therefore, Natural England is being asked to exercise its power to grant a further 8 week licence:
(1) in breach of what had repeatedly been said by DEFRA (and tested by DEFRA through wide consultation) to be a maximum or upper limit – 6 weeks - set on the basis of the best scientific opinion;
(2) without the cull having been monitored or evaluated at the end of the 6 week period by the independent expert group, as had been promised. It is plainly necessary – at the very least - to take into account their views on the proposed extension before considering permitting any further culling.
(3) without any relevant change of circumstance or situation which was not entirely foreseeable, and foreseen by DEFRA in previously rejecting consultee suggestions that practicality considerations might require a longer than 6 week cull;
(4) on the basis of Mr Gibbens advice when he (and DEFRA more widely) had relied solely on the advice of the SAC and BTSAB in setting, and then defending against criticism, the 6 week limit; and
(5) without taking into account the views of those expert bodies on the proposal to have a further 8 week cull in violation of their previous advice. It is plainly necessary – at the very least - to take into account their views on the proposed extension before considering permitting any further culling.
In the light of those matters we consider it would be unlawful for Natural England to grant the new licence now being sought.
Information and Documents requested
Please provide us with the following key information pursuant to your client’s duty of candour. It is in any event information to which our clients are entitled under the Environment Information Regulations 2004.
1. Any dialogue with or consideration by the independent monitoring expert panel.
2. Any dialogue with or consideration by TBSAB and SAC.
3. Any dialogue with or consideration by the Board of Natural England or its Science Advisory Council.
4. Please confirm specifically if those listed were consulted and, if not, why not.
5. All CVO advice in relation to the cull and its extension.
6. Correspondence between DEFRA to Natural England in this regard.
7. Any updated costs impact assessment and confirmation of who will pay for the cost of additional culling, and associated policing.
We look forward to hearing from you in due course.
Yours faithfully
Bindmans LLP
CONTACT
Jack Reedy
01564 783129
0775 173 1107
DEFRA’s policy announcement of December 2011 had explained in clear terms (in its paragraph 5.4) what was to happen:
“… culling will be piloted in two areas, to test our assumptions about the effectiveness, humaneness and safety of controlled shooting, overseen by an independent panel of experts. If monitoring of the humaneness, effectiveness and safety indicates that controlled shooting is an acceptable culling technique, then and only then would this policy be rolled out more widely.”
As for what was meant by “effectiveness”, its paragraph 5.30 explained that:
“Culling would also need to be carried out simultaneously across the entire area, so that culling takes place on all participating land within a maximum period of six weeks.”
See also paragraph 5.34:
“In the first year of culling, a minimum number of badgers must be removed through an intensive cull which must be carried out throughout the land to which there is access, over a period of not more than six consecutive weeks.”
That approach was specifically defended and relied on in the Secretary of State’s defence before Ouseley J and the Court of Appeal of our client’s challenge to the legality of what was to happen.
See thus paragraph 35(b) of the Secretary of State’s Detailed Grounds of Resistance:
“Culling will be allowed to take place over a maximum of 6 weeks, rather than over 8-11 nights as in the RBCT.”
See also paragraphs 38-39:
“In terms of the duration of the cull and the fact that it will be allowed to take place for a maximum of 6 weeks rather than over 8-11 nights (as in the RBCT), the Secretary of State has had to take into account the practical considerations in the light of the available scientific evidence. In designing the policy it was not practical or realistic to deliver culling simultaneously (i.e. over a few days) across such a large area (150 km2). As explained by the Chief Veterinary Officer, this issue was considered by DEFRA’s Science Advisory Council and bTB Science Advisory Body … Consequently, the decision to allow culling over a maximum period of 6 weeks was taken in the light of advice from relevant scientific experts in the field.”
On behalf of DEFRA Mr Gibbens firmly explained the purpose of the pilot culls (8d in his second witness statement):
“In relation to ‘effectiveness’ specifically, the purpose is to confirm our assumption that controlled shooting will be an effective method to reduce the population of badgers by 70% within 6 weeks.” [bold added]
On February 2013, in a written Ministerial Statement to Parliament that the pilot badger culls were to proceed this year, the Secretary of State restated that as being the purpose of what was to happen:
“The policy is being piloted in two areas to test our assumptions about the effectiveness, humaneness and safety of controlled shooting.” [bold added]
That is still explained currently as the position on the DEFRA website, as follows:
“As a first step, there would be a pilot of the policy in two areas to confirm our assumptions about the effectiveness (in terms of badger removal), humaneness and safety of culling.” [bold added]
The website also explains (as part of a public statement on 27 February 2013 confirming that the pilot culls would proceed in 2013, and again entirely consistently with what was set previously) that:
“The pilots are being carried out to test the chosen method of culling through free shooting. The pilots will be independently assessed to check the method is both effective in removing enough badgers and humane.” [bold added]
The December 2011 policy statement had promised the following (paragraph 5.42):
“The design and evaluation of the pilots will be overseen by a panel of independent experts, whose role will include overseeing the design of the data collection, its analysis and interpretation. A decision on further roll-out of a policy that allows controlled shooting will be made following evaluation of results from the six weeks of culling.”
Then at paragraph 6.1:
“As noted at paragraph 5.3 above, controlled shooting will be piloted in two areas initially in the first year in order to test our assumptions about the humaneness, effectiveness and safety of this control method. Culling will be closely monitored in these two areas. The monitoring will be overseen by a panel of independent experts, who will advise on the appropriate methods for monitoring effectiveness and humaneness.”
DEFRA’s response to our client’s judicial review challenge promised this (paragraph 40b):
“The effectiveness and humaneness of controlled shooting will be monitored during the pilots and thus monitoring will be overseen by a panel of independent experts.” [40b]
Mr Gibbens (writing jointly with DEFRA’s Chief Scientific Officer) made the same point in a public statement on 11 December 2012:
“[The pilot culls] will be overseen and evaluated by an independent panel of experts who will report their findings to ministers.”
As for the 6 week upper limit mentioned above, Mr Gibbens had previously explained (41 in his first witness statement) that “culling will be allowed to be carried out over a maximum of six weeks”.
The six weeks was, itself, controversial. Our clients and others had argued that a cull taking that long (and so much longer than in the RBCT) could not lead even to the impacts claimed by the RBCT (the conclusions of which were relied on by DEFRA as showing the bTB control benefits of culling.
Mr Gibbens rejected that contention (8c in his second witness statement), not by reference to his own expertise or judgment, but in sole reliance on the conclusions of the experts who had advised DEFRA (as in his NG5) – the joint Science Advisory Council/BTB Science Advisory Board.
The Secretary of State’s skeleton argument also relied solely on those experts on the point. See thus paragraph 28b which explained the ‘minimum criteria’ for the cull, including thus the 6 week limit, which was specifically said to be “based on the advice of the combined DEFRA SAC and SAB” and explained that “The definition of ‘up to six weeks’ is the expert opinion of DEFRA’s SAC and SAB.”
Natural England also relied on those expert groups in supporting the 6 week limit in its own response to the consultation which proceeded adoption of the policy.
Notably, according to DEFRA’s own Summary of Responses to the consultation on the Guidance to be given to Natural England, some respondents argued at the time for a longer period precisely because of concerns about the practicability of completing the task within 6 weeks (i.e. the very thing which has now come to pass). DEFRA robustly rejected that (and other suggestions to change the proposed criteria):
“We do not propose to change fundamentally the licence criteria, as they are criteria which the evidence suggests are necessary to realise the overall reduction in TB in cattle in culled areas achieved in the RBCT. The rationale for each of the criteria is explained in the [December 2011] Policy Statement.”
In other words: what has happened now was foreseeable, and foreseen, and did not change DEFRA’s view that a 6 week limit should be set.
What has happened now
We understand that the licence issued under section 10(2)(a) Protection of Badgers Act 1992 to allow for the culling of badgers over the 6 week pilot period in Gloucestershire expired on 15 October 2013.
We understand from DEFRA’s news announcements yesterday that only 30% of the relevant badger population has been killed within the 6 week period in that area - well short of the 70% minimum target which had been identified as “effective”.
The cull has thus met its purpose in testing the “effectiveness” (in DEFRA’s terms) of culling. It has shown it not to be effective.
However, as far as our clients are aware, the independent expert group which was to monitor the cull and evaluate and report on its outcome has done neither of those things.
Instead, we understand that Natural England is now considering an application to grant a fresh licence (it would not be an extension given that the previous licence has run out) to allow for another 8 weeks of culling in Gloucestershire.
At 17.21 yesterday Natural England sent us:
(1) a copy of advice dated 3 October 2013 from Mr Gibbens supportive of extending the parallel cull in Somerset (after it had achieved a higher rate of killing than in Gloucestershire, but still only 58%).
(2) a copy of a letter from the Secretary of State of 10 October 2013 to Natural England which seems intended to supplement the Statutory Guidance (which itself had been the subject of public consultation even following the original consultation which underpinned the culling policy itself) previously given to Natural England in which 6 weeks had been specified as the limit for the culling pilot.
We consider that the decision to extend the cull in Somerset was unlawful, particularly in the light of those documents. But given that we have only just seen them and given the relatively shorter extension there, we have advised our clients that it would not now be practicable (given the court process) to seek injunctive relief to prevent it.
But that is not the case in relation to the contemplated decision in relation to Gloucestershire not least because of the much longer extension (8 weeks) being sought (and not yet granted) and the fact that our clients have now seen the nature of the arguments being relied on to justify further culling.
In particular, we assume for this purpose that Mr Gibbens has given similar advice in relation to the Gloucestershire proposal; and that the Secretary of State has written a similar letter. We wrote to you to request these earlier today, and look forward to receiving them with your reply.
We note in that regard that neither document even addresses the actual purpose of the pilot at all: namely to test (so far as is relevant here) the effectiveness of culling (as explained) in reducing the badger population by 70% in 6 weeks. That purpose has now been met, as above, by culling being demonstrated not to be effective in that regard.
Moreover, neither document acknowledges the fact that our clients, the affected communities, and others were repeatedly promised (as above) that the cull would last no more than 6 weeks; and that its effectiveness (on that basis) would then be evaluated at that point by the independent expert group.
Neither document refers to the views of the TBSAB and SAC. We infer that neither was consulted or provided expert input into decision on the new culling period.
Importantly, Mr Gibbens identifies no new material or change of circumstance which could justify the dramatic change of stance which he advocates.
In particular, the only factual change from the position when the policy and guidance was being developed (or when the licence was granted) is the reduced badger number estimate. But that is not the issue here.
On the other hand, the possibility that it might prove practical to cull 70% of the badgers in 6 weeks (i.e. the situation now faced) was precisely contemplated and considered by DEFRA as above. In particular, it was raised by consultees (who presumably argued for a longer period or more flexibility) and – reliant on its expert advice – DEFRA nonetheless stuck with, and robustly defended, the 6 week limit. In particular, it did not then suggest that it might be necessary or appropriate to press on if the 70% target was not reached in the 6 weeks (as has happened now). Nothing has been identified to change that approach, but Mr Gibbens nonetheless appears to have changed his advice about how to respond to that entirely foreseeable and foreseen circumstance.
We note that the letter mentions a provision in the agreement entered into (pursuant to the Guidance) by Natural England and the company carrying out the culling which allowed a mechanism for them to agree extensions to the culling period. But that provision was plainly inconsistent with the Guidance and with the DEFRA’s own policy as above. In any event the fact that a contractual mechanism was put in place does not lend any weight to an argument that it should be deployed, let alone in these circumstances.
Overall, therefore, Natural England is being asked to exercise its power to grant a further 8 week licence:
(1) in breach of what had repeatedly been said by DEFRA (and tested by DEFRA through wide consultation) to be a maximum or upper limit – 6 weeks - set on the basis of the best scientific opinion;
(2) without the cull having been monitored or evaluated at the end of the 6 week period by the independent expert group, as had been promised. It is plainly necessary – at the very least - to take into account their views on the proposed extension before considering permitting any further culling.
(3) without any relevant change of circumstance or situation which was not entirely foreseeable, and foreseen by DEFRA in previously rejecting consultee suggestions that practicality considerations might require a longer than 6 week cull;
(4) on the basis of Mr Gibbens advice when he (and DEFRA more widely) had relied solely on the advice of the SAC and BTSAB in setting, and then defending against criticism, the 6 week limit; and
(5) without taking into account the views of those expert bodies on the proposal to have a further 8 week cull in violation of their previous advice. It is plainly necessary – at the very least - to take into account their views on the proposed extension before considering permitting any further culling.
In the light of those matters we consider it would be unlawful for Natural England to grant the new licence now being sought.
Information and Documents requested
Please provide us with the following key information pursuant to your client’s duty of candour. It is in any event information to which our clients are entitled under the Environment Information Regulations 2004.
1. Any dialogue with or consideration by the independent monitoring expert panel.
2. Any dialogue with or consideration by TBSAB and SAC.
3. Any dialogue with or consideration by the Board of Natural England or its Science Advisory Council.
4. Please confirm specifically if those listed were consulted and, if not, why not.
5. All CVO advice in relation to the cull and its extension.
6. Correspondence between DEFRA to Natural England in this regard.
7. Any updated costs impact assessment and confirmation of who will pay for the cost of additional culling, and associated policing.
We look forward to hearing from you in due course.
Yours faithfully
Bindmans LLP
CONTACT
Jack Reedy
01564 783129
0775 173 1107
Saturday, 19 October 2013
SEMIPALMATED PLOVER in Hampshire
Andy Johnson discovered a first-winter SEMIPALMATED PLOVER in the high tide wader roost at Black Point, Hayling Island (Hampshire) on Thursday morning - the bird showing well for an hour before flying off east with 6 Ringed Plover at 0925. Considering the number of Ringed Plover (around 130) and the conditions (roost easily spooked), AJ did exceptionally well in finding and locating such an incredible rare but it was the tell-tale Spotted Redshank-like call that alerted him to it as he 'scoped and counted the roosting plovers.
Along with around 100 others, I visited yesterday and thoroughly grilled the 127 Ringed Plover present as the tide rapidly encroached the sand bank. By late morning (1115), there was no sign of it. I then gave up (as did virtually everyone else), but just 15 minutes later and AFTER high tide, a tiny group of Ringed Plovers arrived and remarkably the SEMIPALMATED was with them. Even more incredibly, just this bird and a Ringed Plover remained (and a single Dunlin) over the two hours that the tide remained high, roosting on the wooden slipway on the point.
This bird is a difficult id and extremely subtle: basicallly, at very close range, you can see a narrow lemon-yellow orbital ring, a pale yellow basal gapeline, a whitish lower loral line, foot palmatians and small bill. Side-by-side, it is a slimmer and smaller 'ringed' plover. The closest I could get to photograph it was around 60 yards and it is very difficult to see any of the features I have mentioned in the accompanying images...
Along with around 100 others, I visited yesterday and thoroughly grilled the 127 Ringed Plover present as the tide rapidly encroached the sand bank. By late morning (1115), there was no sign of it. I then gave up (as did virtually everyone else), but just 15 minutes later and AFTER high tide, a tiny group of Ringed Plovers arrived and remarkably the SEMIPALMATED was with them. Even more incredibly, just this bird and a Ringed Plover remained (and a single Dunlin) over the two hours that the tide remained high, roosting on the wooden slipway on the point.
This bird is a difficult id and extremely subtle: basicallly, at very close range, you can see a narrow lemon-yellow orbital ring, a pale yellow basal gapeline, a whitish lower loral line, foot palmatians and small bill. Side-by-side, it is a slimmer and smaller 'ringed' plover. The closest I could get to photograph it was around 60 yards and it is very difficult to see any of the features I have mentioned in the accompanying images...
Waders roosting at high tide at Black Point
If you can, try and stay within the parameters of the top of the beach and do NOT cross the rope. The sailing club and local naturalists are trying to protect the fragile dune ecosystem.
Wednesday, 16 October 2013
Product Review: The Crossley ID Guide: Britain and Ireland
by Richard Crossley & Dominic
Couzens
This is a companion volume to the recently published Guide of North
American Eastern Birds, encompassing the author's visionary approach to creating
a digital montage of photographs against a backdrop of natural surroundings.
Targetted predominately at mainstream birdwatchers with beginner to moderate
experience, this new volume is another user-friendly guide to the Birds of
Britain and Ireland. It is truly unlike any guide you have seen before for the
region, containing not single images but a montage of life-like scenes, some
images close and others distant, attempting to replicate a field-like experience
and enabling the browser to perhaps gain a grip on aspects of a bird's size,
shape and structure, with an array of plumages and behavioural traits to be
displayed to their ultimate effect - a very interesting way of approaching the
subject. This time too, unlike the Eastern Birds edition, this is compact,
lightweight and field-usable. The highly visual approach innovated by Richard
Crossley emphasizes shape, size, and habitat through carefully designed scenes
in which multiple birds of different sexes, ages and plumages interact with
realistic habitats - the author's goal to create imagery that replicates what we
see in life - a unique approach. At first glance, pages appear cluttered and
infathomable - often overwhelming in structure and appearance - but once
absorbed, take on a new meaning. The quality of individual insertions is
impressive and of great value, with no less than 330 different species covered.
I particularly enjoyed the Corncrake, Golden Pheasant and Nightjar insertions -
true to form - whilst the number of individual Greenshank on display was quite
mind-blowing. It seems that Richard has tried to cram all of his personal
photograph collection into one book.
On the downside, the accompanying text is brief and scant but to give due,
it concentrates on key features and cuts through the irrelevant. A lot of UK
vagrants fail to feature as well, so if American Black Scoters or White-winged
Scoters are your forte, you need to look elsewhere. Canada Geese get little
treatment too, yet the White-fronted complex and Brant get full coverage and
represent some of the best and most informative plates in the book. Great too to
see both first-winter and adult winter Black Guillemots side-by-side but
surprised at the exclusion of Pallid Swift.
Although clearly directed at the more novice birdwatchers amongst us, I see
much merit and use for this within the more experienced members of the community
- well worth keeping a copy in the car and well worthy of perusal. Overall, a
thoroughly recommended purchase and at just £16.95 per copy, a steal.
Product Review: The Crossley ID Guide: Eastern Birds
The appearance and substance of Crossley ID Guides are unique, innovative
and revolutionary. Produced by once partner-in-crime of mine on Scilly - Richard
Crossley - now residing in the USA at Cape May - it is the first guide to
feature photographs with a backdrop of natural habitat - in all over 10,000 of
the author's photographs being utilised in this remit. It is an interesting
approach and will have its lovers and its haters. For me, I was more interested
in its narrative and its ability to help in one's goal of field identification.
I was pleased to see an array of plumage differences included for each
individual species entry and even more pleased to see the author largely follow
the PSC rather than the more traditional BSC used in most field guides although
rather disappointed to see the lack of treatment (or images) given to the
generally accepted 14 forms of North American Canada Geese and virtually nil
discussion nor images of Melville Island Brant. American Black Duck could have
benefitted from being given more treatment of hybrid forms and overall, general
lack of space offers little chance of realistic identification analysis on any
species on any individual page. However, I like the idea, found it pleasing to
the eye if not a little jumbled and a welcome addition to the New World library.
Redpoll taxonomy seemed confusing and I was not entirely convinced of the
identification of the claimed exilipes redpolls in the plate on page 483 nor of
many of the so-called Common Redpolls - but redpoll taxonomy overall is
confusing and a nightmare in itself anyway. Overall, the general quality of
Richard's images were superb (particularly raptors, waders and New World
warblers) and certainly well chosen and his tips on identification to the point,
accurate albeit brief. Distribution maps too seemed accurate and current.
Creating a digital montage of shots like this is not to everybody's tastes
and against such a busy backdrop of lakes, sea, fields, mudflats and hedgerows,
you could forgive one for being overwhelmed by this guide. Whether or not these
same images would work better on a plain background I do not know but Richard
should be applauded for breaking out into such new ground. It is certainly a
gamble but overall, this is a classic guide - incredibly useful as an
identification aid. I personally found the Kingbird pages most useful, allowing
the browser an opportunity to study the more salient features at close range,
whilst sexing hummingbirds was made far easier with such images.
I have been asked whether the book can be classed as a field or pocket
guide but with the weight of the tomb at around 1.630 kgs, I would have to say
not - unless of course you were willing to carry a rucksack over your shoulder.
A must for the bookshelf though and I very much look forward to reviewing the
other volumes of this pioneering series
The book can be obtained directly from Princeton University Press at the
very reasonable price of £24.95 per copy
Product Review: Best Birdwatching Sites: Norfolk (3rd edition)
Best Birdwatching Sites: Norfolk (3rd
edition) by Neil Glenn
ISBN 978-0-9569876-4-8
The ground-breaking First Edition publication of Neil Glenn's NORFOLK guide
in 2002 set the benchmark for providing essential information for birdwatchers
when visiting this popular and very productive county for birds. For this
exciting third edition, Neil has re-evaluated every site and updated or revised
where relevant, as well as adding nine locations previously not featured. It
thus includes details of no less than 85 different locations, giving practical
information and birding tips for each, along with detailed maps and access
information. It features a list of target birds for each site and gives tips on
how likely it is you will see them, and analyses species' occurrences by month
(Your Birding Year).
I was keen to put the book to test and checked a number of sites I was very
familiar with. Individual sites were usefully indexed with an accurate grid
reference and OS map number, as well as with post codes and even GPS
co-ordinates. The entry for Blakeney Point was novel, giving a 90% surety for
Marsh Harrier, but Mediterranean Gull a paltry 10%. Overall, Little Tern should
have been the main target bird (being the best site in North Norfolk) with a
100% chance of connection from early May. Giving Taiga Bean Goose an 85% chance
from Buckenham Marshes was being somewhat over-optimistic (I would say 35%),
particularly as they wander so wildly, are affected by severe weather conditions
and are often feeding in locations where they cannot be seen from anywhere! And
Wolferton Triangle being the best site for Golden Pheasant in the country - far
from it I am afraid - but certainly the best publicly accessible site, even if
all the surviving males are in-bred variants. Furthermore, the entry for Honey
Buzzard was interesting - 10% chance from Pensthorpe (I don't think so) - and
one main site not even listed (Swanton Novers of course being abandoned by this
species in recent years).
Apart from these minor quibble however, this is an invaluable guide -
essential for anyone planning a trip to the county or birdwatching regularly
there. Incredibly easy to use and browse and of a pocket design size, essential
companionship for a day's outing and at just £17.95 a copy, a bargain.
Available now from Buckingham Press Ltd, 55 Thorpe Park Road, Peterborough,
PE3 6LJ (please make cheques payable to Buckingham Press Ltd)
Irrupting EASTERN PARROT CROSSBILLS - largest arrival in 31 years
When Denmark's leading birders informed me of an irruption of PARROT CROSSBILLS into their country at the beginning of last week, little did I think that I too would be watching (and photographing) them in the UK so soon afterwards but that's exactly what happened this weekend...
Independent local birders Dave Knight and Brian & Angela Baldock were on to a party of 4 crossbills from around 0915 Saturday morning and thanks to a quick-thinking Paul Griggs, Steven Arlow and Pete Davis, this tiny group of forebearers were made available to the wider community from late morning (PG having confirmed the id with Matt Buty and Neil Chambers). The birds were feeding at arms length in a number of small conifers at the seaward end of Mess Road, in Gunners Park, Shoeburyness (Essex), and after perusing initial shots taken by Jeff Delve, were undeniably PARROT CROSSBILLS - immigrating from Scandinavia or further east in Siberia.
After enjoying the delights of another Siberian vagrant in the same county - an OBP at Holland Haven CP - I rushed down to be part of the action, hearing that all-diagnostic flight and contact call on arrival.
These were not your Sussex lookalike, these were the Real McCoy - massive billed, padded-shouldered PARROTS.......
Independent local birders Dave Knight and Brian & Angela Baldock were on to a party of 4 crossbills from around 0915 Saturday morning and thanks to a quick-thinking Paul Griggs, Steven Arlow and Pete Davis, this tiny group of forebearers were made available to the wider community from late morning (PG having confirmed the id with Matt Buty and Neil Chambers). The birds were feeding at arms length in a number of small conifers at the seaward end of Mess Road, in Gunners Park, Shoeburyness (Essex), and after perusing initial shots taken by Jeff Delve, were undeniably PARROT CROSSBILLS - immigrating from Scandinavia or further east in Siberia.
After enjoying the delights of another Siberian vagrant in the same county - an OBP at Holland Haven CP - I rushed down to be part of the action, hearing that all-diagnostic flight and contact call on arrival.
These were not your Sussex lookalike, these were the Real McCoy - massive billed, padded-shouldered PARROTS.......
The party consisted of four birds - an adult male and female, a first-year male and a first-year female..
The adult female
The adult male
This was the younger male - the pale tips to the coverts being obvious in this shot
The less well-marked first-year female - the bill perhaps having more developing to do
Parrot Crossbills are currently irrupting in the largest numbers in 31 years, either indicating a pine crop failure further east or a bumper breeding season. It is a species that survives in the highly boreal forests of northern Scandinavia and Siberia, where it shares the habitat with other crossbills, both Two-barred and Eastern Common. The bills of Parrots (pytopsittacus) are very strong and crossed, with the upper mandible almost running smoothly off of the forehead and a thick, deeply truncated lower mandible. The culmen is more strongly curved in the outer part than in Common Crossbill-types and the lower mandible is very substantial with a prominent bulge ventrally inside of the gonys. Parrot Crossbills tend to be much greyer on the nape and neck-sides than other crossbill species and have a distinct and diagnostic vocabulary - the contact calls being less 'jippy' but deeper-based - more 'juppy', often more musical, longer in note and more finch-like.
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