Background
John Butler and the National Association of Regional Game Councils challenged the Wildlife (Wild Birds) (Open Seasons) (Amendment) Order 2023. The order removed pintail, pochard, scaup and goldeneye ducks from Ireland’s open seasons order, making it unlawful to hunt those species.
The applicants argued that, before making the order, the Minister had to consider the ecological, scientific, cultural, economic and recreational matters identified in s. 11(2)(bc) of the Wildlife Act 1976, which reflects Article 2 of the Birds Directive. They said the Minister had not done so and had acted without hunting “bag data.”
The Court’s Holding
Mr Justice Barr refused the applicants’ judicial-review relief. He held that the Minister was not legally required to undertake the specific assessment urged by the applicants before using his powers under the Wildlife Act to amend the open seasons order.
The Act and Birds Directive establish protection of wild birds as the starting point, while hunting is a discretionary permission. Where credible scientific evidence showed serious declines in the four species’ Irish populations, the Minister could remove them from the hunting list. In any event, the Court held that the consultation process and material before the Minister showed that he had substantively considered the relevant interests.
The absence of reliable bag data did not invalidate the decision. Given scientific uncertainty about the causes of population decline, the Minister could apply the precautionary principle and prohibit hunting. The Court also rejected the claim that the Minister had to obtain flyway data or consult other Member States before imposing a domestic hunting prohibition.
Key Takeaways
- The Minister may remove bird species from an open seasons order to protect declining populations without a separate balancing exercise of recreational and economic interests.
- Under the Birds Directive, conservation is primary; economic and recreational considerations do not create an independent right to permit hunting.
- Scientific uncertainty and missing hunting-return data can support precautionary protective action.
Why It Matters
The decision confirms the breadth of the Minister’s discretion to tighten protections for wild birds under the Wildlife Act and the Birds Directive. It also underscores that judicial review examines legality, rather than re-deciding the scientific merits of a conservation measure.
For hunting organisations, the judgment highlights the practical importance of providing reliable hunting data during consultation processes, particularly where authorities are assessing whether hunting is sustainable.