The scheme that removes hen harrier eggs and chicks from the northern uplands for rearing in captivity in the south of England was given the go-ahead in the courts in 2018.
It forms part of DEFRA’s Hen Harrier Recovery Plan, which aims to “reduce hen harrier predation of grouse chicks on driven grouse moors, leading to an improvement in the conservation status of the hen harrier”.
But Wild Justice and the RSPB say that rather than helping the hen harrier, the programme simply placates grouse moor owners.
They both argue that Natural England’s approach to its brood management trial failed to fully consider “other satisfactory solutions” and that although it is a trial programme, it is expected to be rolled out nationally so alternatives needed to be considered.
The RSPB contended that the judge should have held that brood management in Special Protection Areas (“SPAs”), permitted under the terms of the licence, would defeat certain of the Conservation Objectives for SPAs by internally displacing hen harriers and constraining their population, adversely affecting the integrity of the site.
However, the Court of Appeal found that “brood management, properly understood, is not designed to displace hen harriers from their natural habitat, the true intention being precisely the opposite – to reduce their persecution and increase their population”.
“In any event,” the court found that “the risk of such displacement was directly and fully addressed in the May 2020 Habitats Regulations assessment”.
Natural England said it welcomed the Court of Appeal’s judgment.
“Our aim is for sustained recovery of these magnificent birds and the past three years have seen encouraging breeding success,” it added.
Wild Justice founder Mark Avery said: “Natural England did not consider alternatives and argued that they didn’t have to because this was a piece of research. Now, twice, judges have agreed with this view.”
Avery said that Wild Justice could appeal to the Supreme Court but that it was “very unlikely that we would get to the Supreme Court in time to have any impact on brood meddling in 2021 so an appeal would in many ways be somewhat academic”.