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3. BADGERS AND THE LAW
3.1 The development of badger protective legislation in
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.
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.
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.
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:-
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.
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).
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.
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.
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.
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.
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).
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.
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.
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.
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:-
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.
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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