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3. BADGERS AND THE LAW

3.1 The development of badger protective legislation in Britain
3.2 The Protection of Badgers Act 1992 and its implementation
3.2.1 Actions which are made illegal
3.2.2 Actions which are not illegal
3.2.3 Fox hunting and badger setts
3.2.4 Gamekeeping, fox control and badger setts
3.2.5 Penalties
3.2.6 Licensing in Britain
3.2.7 The licence
3.2.8 Timing of action and the breeding season
3.3 Other legislation affecting badgers in Britain
3.3.1 Keeping and releasing badgers
3.3.2 Scientific procedures
3.3.3 Pesticides and repellents
3.3.4 Methods of killing badgers
3.4 Badger legislation in Northern Ireland
3.5 Badger legislation in Eire

3.1 The development of badger protective legislation in Britain

Apart from badger baiting which, with bull baiting, was made illegal in 1835, badgers were first given legal protection by the Badgers Act 1973, which was amended by the Wildlife and Countryside Act 1981, with further amendments in the Wildlife and Countryside (Amendment) Act 1985. Basically, this legislation was drawn up to protect this species against the practice of badger digging with the aid of dogs. The level of protection was progressively strengthened because it was found that badger digging still continued despite the law. Consequently this legislation is often described as 'animal welfare' rather than 'conservation' and so is worded differently to that providing full legal protection to a threatened species (which would be included on Schedule 5 of the Wildlife and Countryside Act 1981). The badger is too common to be included in this Schedule, which is restricted to species such as the otter and red squirrel. The omission of the badger from Schedule 5 meant that, unlike the otter's holt, its sett was not protected against damage, destruction, obstruction and disturbance.

The most recent legislation in the form of the Badgers Act 1991 enhanced the protection given to badgers by providing formal year-round protection of setts as complete as that which would have been afforded if badgers had been included on Schedule 5 of the Wildlife and Countryside Act 1981. The Badgers Act 1991, which became law on 25 October 1991, also made the introduction of dogs to setts illegal. A further and separate Act, The Badgers (Further Protection) Act 1991, which came into force on 25 September 1991, made provision for the removal, disposal or destruction of any dogs used illegally for badger digging.

In strengthening the law, changes were unavoidably made in what was originally legal practice for dealing with setts 'in the way' (as listed in the second edition of Problems with Badgers?) and caused problems for other, lawful, country activities such as fox hunting and gamekeeping. Consequently, new 'exceptions' and licensable procedures had to be inserted into the Badgers Act 1991 to allow these lawful activities to continue, albeit with some restrictions.

The complexity resulting from all the above separate laws relating to badger protection made it essential that they should be drawn together under one Act. This was done on 16 July 1992 when the Protection of Badgers Act 1992 was enacted to consolidate the situation. All the related older legislation was then repealed, and it is under the provisions of the Protection of Badgers Act 1992 that we work today.

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3.2 The Protection of Badgers Act 1992 and its implementation

In the following paragraphs we have attempted to explain the present legal position and how the law is being implemented. Despite the consolidation of the Protection of Badgers Act 1992, the legislation is still complex, and these notes can only be used as a guide as to what is or is not legal. Also, the 1992 Act is still fairly new legislation, and its provisions and definitions are still open to interpretation by the courts, and so how the Act will be interpreted and implemented will only become clear with time. If in doubt about a particular situation, consult a solicitor, the police, the RSPCA, the SSPCA, the USPCA, English Nature, Scottish Natural Heritage and the Countryside Council for Wales or, if they relate to agricultural and forestry problems, your local Ministry of Agriculture, Fisheries and Food offices or the Scottish or Welsh Office; their addresses are given in Chapter 11. Useful Addresses. A more complete digest and interpretation of the law as it pertains to badgers is given in the Mammal Society booklet Badger Persecution and the Law, a new edition of which is currently being prepared jointly by the Mammal Society and the National Federation of Badger Groups - see Further Reading.

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3.2.1 Actions which are made illegal

The following is a summary of the actions which are illegal under the Protection of Badgers Act 1992. Some, but not all, of these actions are allowable for certain purposes, so long as a licence has been obtained from the appropriate authority (see 3.2.6). The situations in which a licence will be granted are detailed in section 3.2.6.

a. It is illegal to wilfully kill, injure or take any badger or to attempt to do any of these things. Although the original Badgers Act 1973, quoted in older reference books, allowed landowners and their authorised persons to take and kill badgers, and even to dig for badgers when necessary to prevent serious damage to property, crops etc, this loophole was closed in 1981. It is now no longer legal for any body to carry out these activities without the necessary licences. Note too that in the Wildlife and Countryside (Amendment) Act 1985 and now the Protection of Badgers Act 1992 (section 1(2) and 2(2)), if in any proceedings for an offence of digging for or attempting to kill, injure or take a badger, there is evidence from which it could reasonably be concluded that at the time the accused was attempting these actions, then he shall be presumed to have been digging for or attempting to kill, injure or take a badger unless the contrary is shown. This means that the onus has been placed on the defence to show that the accused was not after badgers rather than for the prosecution to prove that he/she was.

b. It is illegal to cruelly ill-treat badgers, to dig for any badger or use badger tongs in the course of taking or killing badgers or attempting to do so.

c. It is illegal to have in your possession any dead badger or any part of one (such as a skin) or an object derived from one (such as a sporran), if that badger was taken in contravention of the Act in operation at the time of death.

d. It is an offence to have in your possession or control a living, healthy badger or to sell one or offer one for sale. It is stated in the law that 'sale' shall include hire, barter and exchange. In addition, it is illegal to mark any badger or to attach to it any ring, tag or other marking device. However, small tags implanted subcutaneously appear to be a legal means of marking badgers that are due to be released, because they can be inserted without the use of anaesthetics and the technique is widely used to mark other species (also see 3.3.2).

e. It is now an offence to intentionally or recklessly damage, destroy or obstruct access to any part of a badger sett, to cause a dog to enter a sett or to disturb a badger whilst it is occupying a sett. The definition of a 'badger sett' within the meaning of the 1992 Act is given as 'any structure or place which displays signs indicating current use by a badger'. So it includes main, annexe, subsidiary and outlying setts, as described in Chapter 2. Badger Biology, and presumably the parts of buildings and above-ground sites which are occasionally used by badgers. This will include garden sheds, outbuildings, culverts, land drains, hollow trees, and large above-ground nests, as described by Neal (1986) - see Further Reading. 'Current' is not defined in the Act but it would be wise to interpret this term widely (i.e. not just this week). English Nature interpret 'current use' as whether the sett provides seasonal use at some time during the course of a year, even if it is not used for the whole year. The Ministry of Agriculture, Fisheries and Food interpret 'current use' much more narrowly, and take it to mean showing signs of being in use or with signs of recent usage. Whatever the interpretation of the term 'current use', it is important to note that a sett is now protected whether or not there is a badger actually in residence at the time of inspection. The definition of what constitutes a sett is of necessity broad. Thus any object, such as a garden shed or culvert, that forms a home of any significance for a badger is protected, and needs a licence before it can be interfered with, but exploratory holes that have been dug but are not capable of occupation are not protected. If in any doubt about what constitutes a sett consult either the relevant Statutory Nature Conservation Agency or, for agricultural or forestry problems, the nearest Ministry of Agriculture, Fisheries and Food Regional Service Centre (See Chapter 11. Useful Addresses).

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3.2.2 Actions which are not illegal

Many of the above illegal acts are allowable for certain purposes, so long as a licence has been obtained from the appropriate authority (see 3.2.6). In addition, there are several actions with regard to badger setts which are permitted under certain circumstances (see, for instance, fox hunting 3.2.3). Situations which are not illegal are as follows:-

a. There is a statutory 'defence' clause in the Protection of Badgers Act 1992 relating to killing or injuring badgers, or damaging or obstructing a sett, or of disturbance of badgers in a sett, if these actions were the incidental result of a lawful action which could not reasonably have been avoided. Thus, it would not be an offence to kill or injure a badger in an unavoidable road traffic accident. However, if you know in advance that an action is likely to damage a sett or result in the death or injury of a badger, such as felling trees or bulldozing an area over or near a sett, then that action could be regarded as avoidable and so the action would be reckless. In this context, it is important for local Badger Groups or Wildlife Trusts to keep sett records, and also to notify landowners of the presence of badger setts on their land. In this way, accidental damage to setts can be avoided. Also, it is not an offence to kill a badger caught in the act of causing serious damage, such as killing livestock or domestic animals, but there are strict limits on the circumstances in which this can be done (see Chapter 6. Badgers Causing Damage).

b. It is not an offence to kill or attempt to kill a seriously injured badger where this is an act of mercy (but see 7.7 in Chapter 7. Injured Badgers). Also, a badger may be taken when it has been disabled by another person's actions; thus it would, for instance, be illegal for a badger-digger to take an orphaned cub to rear when he had killed its mother, but it would be legal for someone else to take that cub. However, an injured animal or an orphaned cub may only be taken for the purpose of tending it. No licence would be required in this emergency, but the badger would have to be returned to the wild when no longer incapacitated. Otherwise, a licence would then be required to continue to hold that animal in captivity. It is incumbent upon the person taking the badger into captivity to ensure that it is kept in a manner that would facilitate it being successfully released back to the wild i.e. every possible measure should be taken to avoid imprinting the animal (see 7.4 Chapter 7. Injured Badgers). The law does not specify the site at which an animal should be released, but it is incumbent upon the rehabilitator to ensure that the animal is given the best chance of survival.

Remember too that the badger legislation only allows the concerned person to 'take' an injured animal that can be picked up by hand. If the injured animal requiring treatment cannot be caught without the use of a trap that is also likely to catch other badgers, then this cannot be done without first applying to the relevant Statutory Nature Conservation Agency for a licence, as the badger is included on Schedule 6 of the Wildlife and Countryside Act 1981. However, if a trap is targeted against a specific i.e. the injured badger, and is not set in such a way that many badgers will be caught before the correct one is taken, then English Nature (and possibly the other Statutory Nature Conservation Organisations) does not consider that an application for a licence is necessary. If you are in any doubt, you should consult the relevant Statutory Nature Conservation Organisation for advice.

c. Although it is illegal to possess a dead badger or part of one, this does not apply unless that badger was taken in contravention of the various Acts e.g. a skin taken before 1973 by whatever means or an animal killed on the road can both be legally kept. However, remember that the onus is on you if challenged to prove that the badger was killed legally, and no licences are issued to keep legally-killed badgers. Also, it is not an offence if the badger, or object such as a mounted skin, badger sporran or shaving brush containing badger bristles, is sold, providing the purchaser and seller have no reason to believe that the badger was killed illegally. So, mounted badger skins can be sold or bought in a sale room. However, whether selling or buying, it is a good idea to keep details of the date, site and cause of death and any veterinary autopsy report that might be associated with the skin, or an old bill of sale showing that it died before 1973. This situation is different to species listed on Schedule 5 of the Wildlife and Countryside Act (1981) (e.g. otters), where unlicensed sale is not allowed.

d. It is not a contravention of the law to watch at a sett, but the precautions and code covered in the section on badger watching (see 4.4 Chapter 4. Protecting and Watching Badgers) should be followed.

e. The various methods used to determine whether a badger is currently using that sett, such as placing thin sticks across an entrance or laying sand across a path outside a hole (see 5.7. Chapter 5. Badgers in the way), are not interfering with a sett and so do not require a licence. Of course, no alteration of the sett entrances should be made and all the material used should be very light and easily brushed aside. Only a monitoring technique thought likely to disturb the badgers would require a licence.

f. It would not necessarily be an offence if a pet dog entered a sett under its own volition while out talking, as this would not class as 'causing a dog to enter' and it would not be with the intent of the owner. However, the Act also says 'or being reckless as to whether his actions would have any of these consequences', and so if a dog regularly enters a badger sett when it is taken for a walk, this may well be an offence because the owner was reckless in not preventing a likely occurrence. Thus when near badger setts dogs should be under the control of the owner at all times. This is particularly important with small dogs, since rescuing an animal trapped underground is not easy and likely to be highly disruptive to the badgers (see 4.2.2. Chapter 4. Protecting and Watching Badgers).

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3.2.3 Fox hunting and badger setts

One of the actions carried out by hunt servants prior to hunting by a pack of hounds is the blocking or 'stopping' up of any holes into which the fox may go to ground whilst being hunted. This has traditionally often included badger sett entrances. Obviously the Protection of Badgers Act 1992 would have made this illegal, but a general exception was included in the new Act, allowing, this action to be carried out without obtaining a licence each time. This exception has many provisions. Thus, the 'stopper' cannot take any action other than obstructing the entrances, cannot dig into the tops and sides of entrances, cannot pack the soil hard into the entrances and can only use materials specified under the Act (i.e. (i) untainted straw or hay, leaf-litter, bracken, loose soil; (ii) bundles of sticks or faggots, paper sacks, empty or containing (i) above). These materials can only be placed in the sett entrances on the day of the hunt (or after midday on the day preceding it with items under (i)) and have to be removed the same day if the items listed under (ii) were used. Some Badger Groups have apparently been advising hunts to stop setts with metal grills or pieces of hessian sacking pegged over the holes on the day of the hunt. This advice is proffered because the Badger Group is concerned as to the effects of more-extensive stopping on the air flow in the sett. Unfortunately, whatever the reasons and possible benefits of proffering this advice, these means of sett stopping are not stipulated in the 1992 Act and so are illegal.

In addition, any person who 'stops' a sett must be authorised to do so by the landowner or occupier and by a recognised hunt, which must keep a register of all such persons. If hounds 'mark' a fox at a sett during a hunt, this in itself is not an offence of 'disturbing' provided the hounds are withdrawn as soon as is reasonably practicable (this is written into the Act). If a fox gains entrance to an unstopped badger sett as shelter during the hunt, the previous custom was to enter terriers to the sett in order to bolt the fox. Under the 1992 Act this would now require a licence. Because a licence would have to be obtained in advance, this would require advance knowledge of the specific sett into which the fox would go. Clearly it is not practical to get a licence in advance, and so the practice of entering dogs into setts during fox hunts is effectively ended.

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3.2.4 Gamekeeping, fox control and badger setts

Foxes will share occupied badger setts. Consequently, in the past, when gamekeepers have needed to control foxes on their shoots to reduce predation on either penned, reared and released, or wild gamebirds, they have sometimes dug for foxes sheltering in or inhabiting badger setts or driven them out by entering terriers to the sett. They were digging for foxes, not badgers, and so this action was legal. Unfortunately, the time when this was carried out most often was when fox cubs were underground, which coincided to some extent with the period when badger cubs could also be expected to be present. So the effect on the badgers was likely to be both stressful and disturbing. Thus it could have been argued that this activity constituted ill-treating the badgers and hence was illegal. With the Protection of Badgers Act 1992 these actions were specifically made illegal, but a provision was placed in the Act which made it possible for such actions to be licensable under certain conditions (see 5.6. Chapter 5. Badgers in the way). Thus whilst the Ministry of Agriculture, Fisheries and Food (or Scottish or Welsh Office) can issue a licence to permit a dog to be entered into a badger sett to flush out a fox, it is unlikely that many such licences will be issued. Licences may be issued for setts to be stopped up lightly and temporarily to minimise the chances of a fox bolting into a badger sett whilst fox control is taking place. In these circumstances, the sett stopping should be carried out in the same way as specified for sett stopping by recognised fox hunts (see 3.2.3).

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3.2.5 Penalties

Penalties are high for offences under the Protection of Badgers Act 1992. Thus, a person found guilty of the offences of killing, injuring or taking badgers, having a dead badger or part of one, cruelly ill-treating and digging for badgers or interfering with a sett, is liable on summary conviction to imprisonment for a term not exceeding six months and/or a fine not exceeding level 5 (i.e. at present 5000). In respect of more than one badger (and presumably sett), the maximum fine is determined as if the person had been convicted of a separate offence for each badger (i.e. 5000 for each badger taken or killed). Any weapon or article (including vehicles) used in committing an offence can be seized and ordered to be forfeited. Where a dog has been used the court may, in addition, make an order destroying or otherwise disposing of the dog and/or disqualifying the offender from having custody of any dog for a defined period.

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3.2.6 Licensing in Britain

Many, but not all, of the above illegal acts are allowable for certain purposes, so long as a licence has been obtained in advance from the appropriate authority. The only licences issued will be for specific situations, although general investigation licences may be issued to certain individuals. Whatever the licence being requested, the applicants will need to provide a good case each time in order to convince the licensing authority of the necessity for the proposed action. The authority providing the licence differs with the variety of actions for which a licence is required. Licensing responsibilities in Britain under the 1992 Act are divided between two authorities as follows: (a) the Statutory Nature Conservation Agencies i.e. English Nature, Scottish Natural Heritage or the Countryside Council for Wales. Applications have to be made to the organisations within whose territory the licensed action is required to take place, and (b) the Agricultural Departments i.e. the Ministry of Agriculture, Fisheries and Food in England and the Secretaries of State (Scottish Office and Welsh Office) in Scotland and Wales. The interests of the Agricultural Departments only extend to the provisions which require them to issue licences for specific purposes. In some cases (e.g. 'damage licences'), licences may be issued after consultations between two authorities. The Protection of Badgers Act 1992 states that a licence shall not be unreasonably withheld or revoked.

The appropriate licensing authority for each situation is:-
* Scientific, educational or conservation Statutory Nature Conservation Agency
* Preventing spread of disease Agricultural Department
* Preventing serious damage to property Agricultural Department
* Development Statutory Nature Conservation Agency
* Agricultural or forestry operations Agricultural Department
* Drainage or sea defences Agricultural Department
* Investigating offences Statutory Nature Conservation Agency
* Protecting ancient monuments Statutory Nature Conservation, Agency
* Controlling foxes to protect
livestock including penned game
Agricultural Department
* Controlling foxes to protect
released game or wildlife
Statutory Nature Conservation Agency

a. Statutory Nature Conservation Agencies: The three organisations can issue licences to kill badgers or take or keep in captivity or interfere with setts for the purposes of scientific research, display in zoological gardens or for the conservation of badgers. The taking and subsequent translocation (see 8.5 Chapter 8. Rehabilitating Badgers) of badgers would require a licence under the last heading. However, translocation itself is not subject to licence, and badgers taken from the wild because they are injured or for some other legal reason can legally be released anywhere provided care is taken not to ill-treat the badgers, although we include specific guidelines on what should and should not be done (see 7.6. Chapter 7. Injured Badgers). Also, a licence is required from these bodies for marking badgers unless this is truly incidental to other procedures which do not require a licence (e.g. for the use of chemical immobilisation for non-husbandry procedures a Home Office licence is required - see 3.3.2).

Some, new licensing responsibilities have been provided by the Protection of Badgers Act 1992. Thus, any licences required for permission to interfere with a badger sett (a) for the purpose of any development as defined in section 55 (1) of the Town and Country Planning Act 1990 or section 19(1) of the Town and Country Planning (Scotland) Act 1992; (b) for the purpose of the preservation, or archaeological investigation of, a scheduled monument; and (c) for the purpose of investigating or gathering evidence about an offence are now matters for the Statutory Nature Conservation Agencies. In addition, where a licence is required by gamekeepers or conservationists to interfere with a sett in order to carry out fox control to protect wild birds (including released game birds), such as on a nature reserve with a vulnerable population of ground-nesting birds, this is again a responsibility of the three Statutory Nature Conservation Agencies.

b. Agricultural Departments: The Ministry of Agriculture, Fisheries and Food, Scottish Office and Welsh Office can issue licences to kill or take badgers or interfere with setts for the prevention of the spread of disease or to prevent serious damage to land, crops, poultry or other forms of property (i.e. 'damage' licences). These damage licences are only issued after consultation with the appropriate Statutory Nature Conservation Agency for England, Scotland or Wales. However, here and elsewhere, remember that consultation between the licensing authorities is only required from time to time, and the Ministry of Agriculture, Fisheries and Food, for example, need not and in fact do not consult with English Nature over every licence application.

There are several new licensing responsibilities under the 1992 Act. Thus, any licences required for permission to interfere with a badger sett (a) for the purpose of any agricultural or forestry operation; and (b) for the purpose of any operation to maintain, construct or improve watercourses, drainage works or sea and tidal defences are now matters for the Ministry of Agriculture, Fisheries and Food and Scottish and Welsh Offices. In England and Wales they are subject to consultation with the appropriate Statutory Nature Conservation Agency. In addition, where a licence is required by gamekeepers or farmers to interfere with a sett in order to carry out fox control to protect livestock or penned game birds, then this is again an Agricultural Department responsibility. In the first instance, you should apply to the local Ministry of Agriculture, Fisheries and Food Regional Service Centre (see Chapter 11. Useful Addresses), or the Scottish or Welsh Office. Statutory advice will be supplied without charge by ADAS consultants and this may possibly even include a free visit, but detailed advice and/or help incurs a consultancy fee.

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3.2.7 The licence

Anybody holding a licence from any of the licensing authorities should have that licence with them when carrying out such operations, so that they are able to show it to a constable or any other concerned person requesting to see it. Any person saying that they have a licence to catch badgers or interfere with setts should be able to prove it. The licences from the Statutory Nature Conservation Agencies for example are typed on headed paper, giving the name and address of the person, the name of the site, the dates for which the licence is valid, the number of badgers to be taken, or what interference can be made at a sett, together with any conditions. Licences issued by the Ministry of Agriculture, Fisheries and Food contain similar information, are clearly headed as being issued by that licensing authority, and have the Regional Service Centre stamp in the top right of the licence. Failure to observe any one of the conditions on the licence renders the licence holder liable to prosecution, and so invalidates the protection afforded by the licence.

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3.2.8 Timing of action and the breeding season

There are no expressed 'close seasons' for any actions mentioned within the Protection of Badgers Act 1992, as there are for seals and deer in their respective Acts. However, the wording of section 2(1)(a) of this Act, making it illegal to 'cruelly ill-treat any badger', means that in practice no action deterring a badger from entering its sett should be undertaken whilst dependent cubs may be present underground. To deter a lactating female from entering its adopted sett or to take it for translocation would mean that young cubs could starve to death, and this could be considered as cruelly ill-treating. As noted in 2.1 Chapter 2. Badger Biology, the period covering the vast majority of cub births and their growth to weaning is from late December to the end of June. Although most births are in early February, around 20% of badgers are born in December and January. If one regards the period of implanting, when the female is particularly sensitive to disturbance and may abort, as being within this period of sensitivity, then the breeding season can be considered as being from the start of December to the end of June. It is most unlikely that any licences would be issued by the Statutory Nature Conservation Agencies for action during this period except in extreme emergencies that could not have been foreseen. Thus the best time to resolve badger problems, which is least likely to cause difficulties both to the badgers and the person taking the action, is from July to November inclusive.

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3.3 Other legislation affecting badgers in Britain

3.3.1 Keeping and releasing badgers

Several further laws are relevant to later paragraphs covering keeping and releasing. Once a badger has been taken into captivity, welfare legislation such as the Protection of Animals Act 1911, the Protection of Animals (Scotland) Act 1912 and the Transit of Animals (General) Order 1973 apply. These require that the animal is not caused unnecessary suffering. Similarly, if a badger is released back into the wild without adequate effort to ensure its future well-being, it could be an offence under the Abandonment of Animals Act 1960. The problems of wildlife rehabilitation are discussed in the Proceedings of the Inaugural Symposium of the British Wildlife Rehabilitation Council (see Further Reading).

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3.3.2 Scientific procedures

The Home Office issues licences for undertaking scientific procedures on badgers, under the Animals (Scientific Procedures) Act 1986. Laboratory testing of vaccines for bovine tuberculosis on badgers would, for instance, need a licence under this Act. Similarly, a licence would be required from the Home Office if badgers are to be marked as part of a scientific study rather than as an act of veterinary surgery or as part of a recognised husbandry procedure, and when the marking method causes more than momentary discomfort, or requires that the animal is sedated or anaesthetised. Such a licence would only be issued by the Home Office after very careful consideration of the need for, and close monitoring of, the work.

On no account should experimental or research work be carried out during conservation work on badgers unless this is only as a minor adjunct to it. This is because to anaesthetise an animal solely in order to fit a radio-collar or even to fur clip it for identification purposes would require a Home Office licence (both project and personal licences) under the Animals (Scientific Procedures) Act 1986. This is still the case even if the anaesthesia is carried out by a veterinary surgeon. However, for a veterinary surgeon to anaesthetise an animal in order to move it without stress, or to examine it for injuries before release, would be a welfare rather than a scientific procedure, and so would not require a Home Office licence. Marking the animal as part of a veterinary procedure, or to monitor the animal to supply information on the effectiveness of the veterinary treatment or on the results of a relocation or rehabilitation exercise, would then be regarded as part of a husbandry rather than a scientific procedure, and would not require a licence. Such activities are excluded by the provisions made regarding veterinary treatment and husbandry by section 2(8) of the Animals (Scientific Procedures) Act. If you have any doubt over these distinctions you should contact the Home Office (see Chapter 11. Useful Addresses). Remember too that you also need a licence from the relevant Statutory Nature Conservation Agency to mark a badger.

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3.3.3 Pesticides and repellents

The legal restrictions regarding the use of chemicals have increased in recent years, and of particular importance are the Control of Pesticides Regulations 1986. In addition to what are commonly understood to be 'pesticides', the Regulations cover the use of other substances such as wood preservatives and animal repellents. The Regulations therefore have an important bearing on the use of any substances in attempting to resolve badger-related problems. In the past, people were commonly advised to use creosote, diesel oil or naphthalene (moth balls) as badger deterrents; these were either placed down setts or soaked into ropes that were then stretched across badger paths and entrances to gardens. As from 1 January 1988 their use for such purposes was illegal. Products such as creosote are not animal repellents, and are unlikely to be given clearance for this use. In 1989 a farmer received a heavy fine for putting creosote down a badger sett, because he was using an unapproved substance. Thus people should no longer be advised to use creosote as a repellent for badgers or any other animals. Henceforth the use of any commercially available animal repellent will only be allowed if it has been approved specifically for use as a badger repellent (see 5.7.1. Chapter 5. Badgers in the Way). An advisory leaflet No. UL79, called Pesticides: Guide to the New Controls, is available from MAFF Publications - see Chapter 11. Useful Addresses.

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3.3.4 Methods of killing badgers

The badger is included on Schedule 6 of the Wildlife and Countryside Act 1981, which means that the methods by which it can be killed (should that be necessary) are severely restricted; these are detailed on Schedule 11 of the Wildlife and Countryside Act 1981. Thus it is an offence to use any form of trap, snare, electrical device, poison, plus any net, automatic or semi-automatic weapon, night sight or illuminating device, any form of artificial light, any gas or smoke, decoy, sound recording, pursuit in a vehicle, any bow or cross-bow or any explosive. Only shooting remains and that only by approved calibres of weapons (see 7.7. Chapter 7. Injured Badgers). Because of the above it would be illegal to gas badgers with 'Cymag' or any other substance. Ministry of Agriculture, Fisheries and Food operatives were allowed to use this technique to control the spread of bovine tuberculosis, but since June 1982 the use of 'Cymag' has been discontinued because of doubts over the humaneness of its use against badgers. In addition, under the Control of Pesticides Regulations 1986 (see 3.3.3) 'Cymag' currently has approval for use only against rabbits and rats. There is currently no product approved for gassing foxes and thus the excuse of fox control can no longer be used as a disguise for gassing badger setts.

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3.4 Badger legislation in Northern Ireland

The legislation relating to badgers differs in Northern Ireland from that in Britain, although the resulting level of protection is very similar. There are no Protection of Badgers Acts, but instead the badger is protected by its inclusion on Schedules 5, 6 and 7 of the Wildlife (Northern Ireland) Order 1985. This is very similar to the species protection part (Part 1) of the Wildlife and Countryside Act 1981 for England, Scotland and Wales. Consequently, the protection the badger receives in Northern Ireland equates closely to that received by the otter, pine marten and wildcat in the rest of the United Kingdom. This is because the Department of the Environment (Northern Ireland) have decided that there is no need for a separate Act to protect badgers and to stop 'digging', but instead badgers are listed on Schedule 5 of the Wildlife (Northern Ireland) Order 1985 with the other mammals (pine marten, otter, red squirrel, common and grey seals and all bats) that receive full protection in Northern Ireland.

The protection afforded by the Wildlife (Northern Ireland) Order 1985 is, briefly as follows:-

a. Schedule 5: By listing on Schedule 5 the badger cannot be intentionally killed, injured or taken. No person can possess or control a live or dead badger or part derived from one. The sett cannot be destroyed, damaged or have the access by badgers obstructed. It is also an offence to, damage or destroy anything which conceals or protects a badger or to disturb a badger whilst it is occupying one.

b. Schedule 6: It is an offence to place any of the following items where they are calculated (i.e. likely) to cause bodily injury to a Schedule 6 species, which includes badgers. This list includes any springe, trap, gin, snare, hook and line, electrical device for killing or stunning or any poisonous or stupefying substance. Neither can any automatic or semi-automatic weapon, metal bar, axe, club, hammer, night sight, artificial light, dazzling device, gas or smoke or mechanically propelled vehicle be used in the taking of a badger. Also, no wild animal can be taken by using a self-locking snare, any missile, arrow or spear, explosive, decoy or sound recording. Even if any of the precluded list of methods are legally usable for certain quarry species, anybody taking a Schedule 6 species whilst hunting the former needs to be able to show that they took 'all reasonable precautions' to prevent injury to that Schedule 6 species. As in Britain, the only allowable method would appear to be shooting with a prescribed weapon.

c. Schedule 7: It is an offence to sell, offer or expose for sale, or publish an advertisement regarding such a sale of a Schedule 7 species either alive or dead (or indeed a part derived from one). The badger is included in Schedule 7.

d. Licensing: The Department of the Environment is the sole licensing authority under the Wildlife (Northern Ireland) Order 1985. They can grant licences to take or kill badgers for scientific and educational purposes, for marking, for photography, to prevent the spread of disease, to preserve public health or public safety, for taxidermy and to prevent serious damage to livestock, foodstuffs, crops, vegetables, fruit, growing timber, pasture or fisheries. Unlike the Protection of Badgers Act 1992 in force in Britain, there is no specially noted ability in the Wildlife (Northern Ireland) Order for the Department of the Environment to grant licences for damaging, destroying or obstructing setts for the purposes of fox hunting, fox control, building or road development. Presumably the Department of the Environment could issue a licence for deterring the use of particular setts in the way of development as an act of conservation, in that the badgers would then be removed from the source of danger. These situations would need to be explained to the Department of the Environment in Belfast. Setts under roads and railways or flood levees could obviously be destroyed (when empty of badgers) in order to preserve public health. Thus, the situation in Northern Ireland is closer to that of the Protection of Badgers Act 1992 than the Badgers Act 1973 in that setts are protected and cannot be damaged without previously obtaining a licence.

As in Britain, there is a 'damage' clause in section 11(3)a of the Wildlife (Northern Ireland) Order 1985 noting that an authorised person can kill (or injure) a badger if he shows that his action was necessary to prevent serious damage to livestock, crops, growing timber, fisheries or any other form of property and he notified the Department of the Environment immediately after taking such action. This defence cannot be relied upon if it had previously become apparent that damage was occurring and a licence was going to be needed i.e. this defence only applies if the badger is caught whilst doing its first damaging act.

Although there is no clause making 'cruelly ill-treating' a badger an illegal act as in Britain, other Acts of Parliament cover the problems of preventing 'digging' and cruelty to badgers in Northern Ireland. Thus section 13a of the Welfare of Animals Act (Northern Ireland) 1972 makes it an offence to cruelly beat, torture or terrify any animal. Although this section 13a does not apply to a wild animal that is being hunted or coursed, section 15c(ii) notes that this hunting cannot be in an enclosed space from which the animal has no reasonable chance of escape and section 15d notes that it is an offence to cause unnecessary suffering to a wild animal when it is being hunted, captured or destroyed. In addition this same Act (section 13e) makes it illegal to abandon an animal without reasonable cause or excuse.

The Control of Pesticides Regulations (Northern Ireland) 1987 regulate the use of chemicals as pesticides in their broad sense in Northern Ireland, as does the Control of Pesticides Regulations 1986 in Britain. Thus, as in Britain, it would be an illegal act to use an unapproved substance for deterring badgers from using a sett in Northern Ireland.

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3.5 Badger legislation in Eire

The badger is a protected species in Eire as well as in Northern Ireland. The relevant wildlife legislation is the Wildlife Act 1976, which has a form of 'reverse listing'. This is a comprehensive Act which affords varying degrees of protection to all the native Irish mammals (as well as birds, reptiles and amphibians) other than certain listed exceptions. The latter are the species considered to be pests, such as brown and black rat, house mouse, mink and fox, which have no protection. The second category for protected species contains those which are not considered to be a significant pest to agriculture, forestry or game management. It contains both threatened species in low numbers and those considered to be innocuous. The badger is in this second category with the main body of wild mammals, such as the hedgehog, stoat, otter, red squirrel, pine marten, both seals, all bats and all cetaceans. These may not be hunted or killed or their breeding places disturbed. A third category lists game species which have certain protection in the form of close seasons when breeding but which may be hunted outside these seasons and killed in accordance with the regulations governing the types of firearms which may be used. This third category contains species such as red, fallow and sika deer and the Irish hare.

As in Britain and Northern Ireland, licences may be granted (under section 42 of the Wildlife Act 1976) to take or kill certain individuals of protected species which are clearly causing proven damage to property or livestock (e.g. a badger killing poultry). In addition, as in Britain and Northern Ireland, there exists a 'good defence of haste', by which a farmer, for instance, can take immediate action if a protected species is caught in the act of doing damage (e.g. a badger found in the hen house) and there is no time to apply for a licence. Here there is a difference between the wildlife laws of the United Kingdom and Eire in that in the latter country there are two classes of protected species with respect to the 'defence of haste'. This cannot be used as a defence if the species concerned is considered to be exceptionally rare or endangered (e.g. the pine marten). It can only be used for the second class of protected species (i.e. those considered to be largely innocuous); the badger is considered to be an innocuous animal and is included in this second class.

Licences to take and kill protected species can be granted for purposes of scientific research (under section 23 of the Wildlife Act 1976). The granting authority for both section 23 and 42 licences is the National Parks and Wildlife Service (see Chapter 11. Useful Addresses). Licences to take badgers on farms where there has been an outbreak of bovine tuberculosis, and only when all other causes have been eliminated, are granted to the Department of Agriculture, Food and Forestry (see Chapter 11. Useful Addresses) under section 23 of the Wildlife Act 1976.

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