Thursday 3 June 2021

Wild Justice 63 - two legal challenges begin


In the last week, Wild Justice has sent two formal legal letters to DEFRA. These are known as PAP letters, where PAP stands for Pre-action Protocol.  They are the beginning, potentially, of full-blown legal actions where we would seek judicial reviews of two government decisions.  The purpose of the PAP letters is to lay out the legal cases and see what the other side, in this case DEFRA, says.
Case 1: this is revisiting our challenge to the legality of large-scale gamebird releases on or near sites of high conservation importance (seehere and here). We are revisiting it because we do not consider that DEFRA has done what it told the court it would do when we agreed to end our case on this matter last October, and it certainly has not done enough to protect the environment from damage by released non-native gamebirds.
Wild Justice submits that the the general licence (GL43) that DEFRA has issued is unlawful in that DEFRA is 'permitting and licensing the release of gamebirds within European sites and within 500m of European sites, without having properly ruled out the risk of harm of the release of gamebirds in the numbers, densities, and locations permitted under GL43, and has failed to take the necessary steps to prevent the deterioration of European sites.'. 
Hundreds of subscribers to this newsletter responded to the public consultation which closed in mid-March but we see no sign that DEFRA took any notice at all of your views, and we believe that their proposals are unlawful. That's what we have told them and that's why we are starting this challenge.  We think that is what you would want us to do.
Case 2: this is a new legal challenge but it builds on the e-action that was supported by 123,000+ people after it was launched on Hen Harrier Day 2020 (see here) where we asked, among other things, for regulation of burning of vegetation on peatlands.
DEFRA has brought in measures which limit, to some extent, burning of upland vegetation but the measures cover, at best, only 40% of the resource (see here for details of the faults).  The DEFRA proposals have been roundly criticised by non-governmental organisations, by a parliamentary committee and in a special debate in the House of Lords (see here).
We have four grounds for requiring DEFRA to do a better job of drafting their Burning Regulations;
  • Ground 1: Unlawfulness arising from the Burning Regulations frustrating their own purpose
  • Ground 2: Demonstrable flaw in the reasoning or serious logical error in the reasoning leading to the making of the Burning Regulations
  • Ground 3: Breaches of the Habitats Regulations 2017
  • Ground 4: Failure to take into account Material Considerations, in particular the requirements to act swiftly to limit the emission of greenhouse gases.
We have asked DEFRA to take urgent steps to amend the Burning Regulations to avoid the errors set out above.  
We aren't launching an appeal for funds for these two legal challenges yet. We'll wait and see what DEFRA says, but if we get no satisfaction then we will proceed rapidly towards seeking permission for judicial review and then we will need to raise quite a lot of cash.  As always though, if you like what we are doing then please consider making a donation through PayPal, bank transfer or a cheque in the post - see details here
That's it for now - short and sweet.  But we will keep you informed on progress through this newsletter.
Wild Justice (Directors: Mark Avery, Chris Packham and Ruth Tingay).
Image of heather burning - thanks to Sarah Hanson.

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