Back in April and May this year, I blogged about this spring’s hen harrier diversionary feeding fiasco at Swinton Estate in North Yorkshire after footage was sent to me of two individuals apparently putting out food at an active nest site during a period when it was expressly forbidden to take place (see here and here).
[Grouse moors on the Swinton Estate, North Yorkshire. Photo by Ruth Tingay]
After a lot of digging, and a lot of obfuscation by Natural England (e.g. see here), it was revealed that the estate was not even in possession of a diversionary feeding licence at that time and so the matter has since been passed to North Yorkshire Police who are currently investigating whether an offence has been committed (see here).
I am still waiting to hear about North Yorkshire Police’s conclusions and will report back in due course.
Meanwhile, after further digging and a series of FoIs to Natural England, it became apparent that Swinton Estate had also allegedly breached it’s hen harrier diversionary feeding licence in 2019 (see here).
I learned through an FoI response from Natural England that in 2019 the Swinton Estate had again been providing diversionary feeding for breeding hen harriers at a period in the breeding cycle (the incubation period) when it was expressly forbidden by the terms of the licence. The estate seemed oblivious to this breach because it openly admitted it on its licence return to Natural England.
So in June I submitted a further FoI to Natural England to ask about this breach of the 2019 licence and whether it had taken any enforcement action against the estate. Bear in mind that Natural England warns all potential licence users that:
‘Anyone acting under the authority of this licence must follow the advice on diversionary feeding of hen harriers on grouse moors in northern England. If you do not follow this advice you may be in breach of this licence and are at risk of enforcement action‘.
In July, Natural England replied and told me that due to the ‘complexity’ of my request, it required a further 20 working days to respond. This wasn’t the first time NE has struggled with a very straightforward information request on this subject (e.g. see here) and I doubt it’ll be the last.
In August, after taking 40 working days to respond, here is how Natural England answered my questions about the apparent breach of the 2019 licence:
Me: Please can you look at the attached  licence return from Swinton Estate relating to the diversionary feeding of hen harriers. According to the details written on this return, it would appear that Swinton Estate attempted diversionary feeding during the incubation period, which as you’ll be aware was contrary to the terms of the licence at the time.
Please can you advise (a) did anyone at NE notice this when the licence return was submitted?
Natural England response: No, this was not identified at the time the return was submitted.
Me: (b) was there any enforcement action as a result of this apparent breach?
Natural England response: No
Me: (c) If so, what was it, please?
Natural England response: N/A
Me: (d) If no enforcement action, please explain why not.
Natural England response: The breach was not identified. In any event, a breach of a licence condition is not of itself an offence under the Wildlife and Countryside Act 1981 (as amended) (WCA) and no evidence or intelligence has been received as to the disturbance of Schedule 1 birds that might have given rise to an offence under section 1 of the WCA.
Me: (e) If there wasn’t any prior enforcement action will there now be any and if so, what will it be?
Natural England response: As above, the breach of a licence condition is not of itself an offence under the WCA and there remains no evidence or intelligence as to the disturbance of birds that might give rise to an offence under section 1 of WCA. Furthermore, young within the nest in question successfully fledged. The condition in question no longer applies to the Class Licence based on best available evidence demonstrating how diversionary feeding interventions can be used to benefit hen harriers. Natural England will however be writing to the Estate to remind them of the importance of adhering to the terms and conditions of any licence on which they propose to rely.
I don’t know why it took Natural England 40 working days to provide these basic answers. Perhaps it thought I’d lose the will the live whilst waiting?
Needless to say, I’m fascinated by NE’s claim that disturbing breeding hen harriers by feeding them during the incubation period, which was expressly forbidden by the terms of the licence, does not amount to an offence under section 1 of the WCA. Specifically, Section 1(5)(a) of the WCA states:
If any person intentionally or recklessly disturbs any wild bird in Schedule 1 while it is building a nest or is in, on or near a nest containing eggs or young, he shall be guilty of an offence.
I’ve written back to Natural England to ask it to explain why this particular licence breach does not constitute an offence.
I’ve also written to Natural England to ask what enforcement measures it CAN implement if somebody breaches the terms and conditions of the licence. It threatens licence users with ‘enforcement action’ for breaches, but it’s apparent from the FoI response that NE doesn’t even check for previous licence breaches when issuing replacement licences!
Natural England says that it would ‘be writing to the Estate to remind them of the importance of adhering to the terms and conditions of any licence on which they propose to rely‘, but what’s the point of issuing threats if (a) you’re not going to even check for licence breaches and (b) even when a breach is pointed out to you, you don’t bother taking any ‘enforcement action’ anyway?!
Natural England argues in its response that ‘The [licence] condition in question no longer applies to the Class Licence based on best available evidence demonstrating how diversionary feeding interventions can be used to benefit hen harriers‘. That’s totally irrelevant. The licence condition [no diversionary feeding during incubation period] WAS a condition in 2019 and the estate evidently breached it. Just because Natural England has since slyly changed the licence conditions (in response to awkward questions being asked about repeated breaches, apparently it is now acceptable to provide diversionary food during the incubation period!), it doesn’t mean that a breach didn’t take place under the 2019 licence terms and conditions!
To be clear, I’m not so much interested in the Swinton Estate’s actions here. Yes, it’s of concern that it apparently can’t read/comprehend the simple terms of a licence (what other terms & conditions might it be breaching?), and that this has happened in multiple years, not just as a one-off mistake, but the estate’s actions were probably not malicious towards the breeding harriers (although it could be argued that repeated disturbance of a breeding attempt could cause a breeding failure). In my view, Swinton Estate is keen for the hen harrier brood meddling trial to work (which is why it’s involved with diversionary feeding) because the grouse-shooting industry wants brood meddling to be rolled out in future years as a ‘legal’ method of removing harriers from their grouse moors, so the estate appears to be tolerating the harriers, for now at least, as part of the brood meddling trial.
So rather than focus on the estate, I’m much more interested in Natural England’s behaviour and its apparent tolerance of licence breaches and its penchant for rule-bending in pursuit of its shameful hen harrier brood meddling trial (oh, and its acceptance of a £10K bung from BASC with an attached gagging order preventing Natural England from saying anything derogatory about either BASC or the hen harrier project!!!).
This hen harrier brood meddling trial is supposedly underpinned by rigorous scientific parameters, although these have been challenged in the courts by Dr Mark Avery and the RSPB (appeal hearing was in January 2021 but eight months on and the court decision is still awaited!). If Natural England can’t be trusted to take action on apparent licence breaches, what faith can we have in its adherence to the scientific rules of the trial? Can we trust Natural England not to bend the rules?
I’ll report back when Natural England responds to my latest FoI request. On previous form, that will probably be in November!