The House of Lords Secondary
Legislation Scrutiny Committee has published a report
which raises a number of concerns about the Wildlife and
Countryside Act 1981 (Variation of Schedule 9)
(England) (No. 2) Order 2021 (SI 2021/548).
The Order governs non-native gamebirds which may not be released
or allowed to escape into the wild unless authorised by a license
and specifically sets out;
- A prohibition of the release of common pheasants and
red-legged partridges into certain protected areas or within a
buffer zone of 500 metres around these areas without a license;
- A prohibition of letting these species escape into such
protected areas without a license; and
- A time limit on the instrument which means it will expire in
May 2025, and an obligation to review the effectiveness of the
licensing regime before the end of May 2024.
The Committee expressed considerable concern about the
practicality of making it an offence to let gamebirds escape into
protected areas and also took issue with the inconsistency of
this provision with the statutory guidance, which simply
states that the escape or release of gamebirds into protected
areas should not be “encouraged”.
Committee members expressed doubt that the new regime
could be effectively enforced by authorities and questioned how
responsibility for the escape of any gamebirds could be properly
established for these purposes.
In addition, the Committee criticised 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 - and the fact that the accompanying
explanatory memorandum failed to provide all the information
needed to fully understand the policy objective and intended
implementation of the Order.
In conclusion, the report draws the Order 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.
Commenting, the , Member of
the Secondary Legislation Scrutiny Committee said;
“Although it has been suggested by the Department for
Environment, Food and Rural Affairs that this issue attracts a
relatively low level of public interest, it is clear that this
will be of keen interest to those involved in the gamebird and
shooting industry as demonstrated by the considerable number of
consultation responses and the Judicial Review brought against
the Department.
“As such, although we welcome the inclusion of a time limited
“sunset clause” in the Order, we suggest that it is entirely
impractical to indicate the escape of birds can be prevented. The
provisions in the statutory guidance which state that any
activity must not encourage birds to escape into protected areas
are more sensible for monitoring and enforcement purposes than to
make such release or escape an outright offence.
“We would urge the Department to publish an analysis of the
public consultation
without further delay and ensure such analysis is made available
when any instrument is laid before Parliament in future, in line
with our guidance on statutory instruments.”
, Member of the Secondary Legislation Scrutiny
Committee added:
“Having considered fully the provisions of the Order we regret
that 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.
“It makes little sense to suggest birds can be prevented from
flying away and to make this an offence suggests a mismatch
between the Order and the statutory guidance issued alongside it
and would appear to be unworkable in any event.
“In our view, there are questions as to whether the Order will
achieve its policy objectives and effectively address the issues
it was designed to tackle”
Notes to Editors
- The Wildlife and Countryside Act 1981 (Variation of Schedule
9) (England) (No. 2) Order 2021 (SI
2021/548) is available on legislation.gov.uk. The
Order was laid on 5 May and will be brought into effect on 31
May, although the House has until 29 June to raise any issues
with the Order.
- The Secondary Legislation Scrutiny
Committee scrutinises policy aspects of all secondary
legislation laid before the House of Lords and subject to
proceedings in Parliament and reports on them weekly. The
commentary raising concerns about this instrument is published
in the SLSC’s
2nd Report of the 2021-22 Session.
