Regulatory overreach or necessary protection? Lessons from BASC v Natural England

Natural England has lost on all grounds in a judicial review challenge dated 16 July brought by the British Association for Shooting and Conservation ("BASC"). The key legislation at issue in the case was section 14(1)(b) of the Wildlife and Countryside Act 1981 (“WCA 1981”), which became relevant to gamebird shoots only in 2021 when pheasants and partridges were added to Schedule 9, making their release into the wild a criminal offence unless licensed. BASC challenged Natural England’s practice of granting individual licences subject to conditions preventing both the release of gamebirds before a specified date and their keeping within Controlled Zones (for instance, Special Protection Areas (“SPAs”) and their 500-metre buffer zones) prior to that date.

Natural England’s position was that the power to impose licence conditions was broad, covering not only release conduct but also pre-release and post-release conduct and that gamebirds were "released" into large pheasant and partridge pens when placed in them. Natural England further submitted that licensing "must be exercised so as to secure compliance with the requirements of the Habitats Directive and Wild Birds Directive" and "must take into account the activity that precedes" release, such that it could not grant a licence where pre-release keeping would adversely affect the integrity of a SPA. In doing this Natural England, as normal, invoked the precautionary principle under Regulation 63(5) of the Conservation of Habitats and Species Regulations 2017 (“Habitats Regulations”), which requires the competent authority to be satisfied there is "no reasonable doubt" as to the absence of adverse effects on the integrity of a European site (see paragraph 16 of the judgment).

Central to Natural England's case on the risk posed by closed-topped partridge pens was what Ritchie J termed the "Jenny Wren" theory. This was the theory put forward by Natural England that there is a causative risk from bridging species (small wild birds such as Wrens and Tits) entering closed partridge pens, becoming infected with Highly Pathogenic Avian Influenza from the partridges within and then flying out to infect protected wild birds in the surrounding SPA (see paragraph 61 of the judgment). The Judge was highly sceptical of the evidential basis for this theory. This is because the causal chain for this theory relied upon:

1. Wild birds outside the pens being infected with bird flu

2. A Jenny Wren would then fly into the pen and infect the partridges

3. The partridges would develop flu undetected by the gamekeepers

4. A different, uninfected Jenny Wren would then fly in

5. Catch the flu from the recently infected partridges

6. Pass it on to a protected wild bird that had not already caught the flu from the other infected wild birds outside the pen

The Judge concluded that this six-step causal chain on which the Jenny Wren theory depended had never been assigned any probability at each stage. If this was done, then even a generous 50% probability at each step would produce a final risk of less than 2%, falling to just 0.0064% if each step carried only a 20% probability. The Judge also found nothing in Natural England’s Strategic Habitats Regulations Assessment demonstrating that this risk had been assessed as significant, or even minimal. Rather, Natural England appeared simply to have assumed that the mere existence of the risk was sufficient to affect the integrity of the SPA. Ritchie J concluded that this approach appeared potentially to amount to a "worst possible case" assessment, which he contrasted unfavourably with Natural England’s treatment of other transmission routes in the same document, which had been properly assessed and determined to be insignificant (see paragraph 108 of the judgment).

Ultimately, Ritchie J disagreed with Natural England’s approach, finding against it on all grounds. He held that "the thrust of (BASC’s) submissions is generally correct in relation to keeping and the proper interpretation of 'releases into the wild'" and that on the evidence keeping gamebirds in pens in Controlled Zones, for instance rearing them or keeping them as livestock, is not releasing them (see paragraph 90 of the judgment). The judge also concluded that "keeping and releasing into the wild are mutually exclusive activities". On pheasant pens specifically, the Judge found that Natural England’s general policy that placing birds into open-topped woodland pens constituted "release" was not a correct or lawful interpretation of section 14(1), reasoning that "the level of control and imprisonment imposed on Pheasants in open topped, woodland pens, with the provision of sufficient food and water, with monitoring and predator control, vet testing and culling ill birds, means that they are not 'released', they are not independent or living freely” (see paragraph 80 of the judgment).

Of interest and of broader application was the view taken by the High Court on the interaction between the Habitats Regulations and primary legislation. On this, the judge came to the following conclusions:

• “In my judgment, the Habitats Regulations do not affect the proper interpretation of S.14. They both have the same narrow purpose, but the Regulations cannot widen or enhance the scope of criminality under S.14. The EU Directives no longer have any relevance. In addition, there is no duty to interpret domestic law consistently with EU law, the principle of supremacy has been repealed, see Makeability Ltd v City Doggo [2025] EWCA Civ 400 at [38]” (see paragraph 78 of the judgment)

• That " Whilst the rationale behind S.14(1) was clearly to protect wildlife and the natural environment, it was focussed on releasing not rearing and maturing. The duties imposed on the Defendant in the Habitats Regulations 2017 cannot, in my judgment, be used retrospectively, to expand the scope of the power to impose conditions in S.s 16(4) and (5), save in so far as the English law permits. I reject NE's assertion that the purposes of the licensing conditions arising from S.s 16(4) and (5), or the relevant context, can be taken wholesale from the Habitat Regulations. The wide environmental purposes of the Regulations are parallel, driving objectives for NE but the tools for achieving those objectives are many and varied. This claim deals with one specific tool, under the WCA 1981 S.s 14(1), 16(4) and (5)” (see paragraph 93 of the judgment)

• Summarising, Ritchie J concluded that "the Disputed Condition imposed on BASC members banning the keeping of [gamebirds] in SPAs and [buffer zones] was ultra vires the power granted by S.s 16(4) and (5) of the WCA 1981 and was irrational due to the Defendant misinterpreting the scope of their powers" (see paragraph 112 of the judgment)

The judgment is a significant setback for Natural England and, more broadly, for the approach of regulatory bodies seeking to deploy the precautionary principle under the Habitats Regulations as justification for extending licensing conditions beyond the confines of the underlying primary legislation. I have seen Natural England adopt similar positions in my own regulatory casework for clients, where it has used a broad interpretation of the Habitats Regulations to cut directly across the wording of primary legislation. 

Natural England has announced its intention to appeal (see High Court judgment threatens protections for England’s internationally important wildlife sites – Natural England), so this litigation has further to run. The Court of Appeal may yet take a more expansive view of the relationship between the Habitats Regulations and Natural England licensing powers under the WCA 1981. In my view, clarity on that and the interaction between the Habitats Regulations and other pieces of primary legislation is badly needed. What the judgment lays bare is that Natural England considered itself entitled, on the basis of its Habitats Regulations obligations, to impose licence conditions reaching beyond the conduct Parliament chose to criminalise. Whether that approach can be vindicated on appeal remains to be seen. What we cannot have is lingering uncertainty in terms of Natural England’s approach to regulation in the context of the Habitats Regulations.