Buglife welcomes the new Wildlife Bill, it represents an important step forward in the presentation of a modern and consistent legal framework to protect our precious wildlife.
Broadly the Law Commission have done a diligent and through job of consolidating 120 years of legislation prescribing the legal parameters of our treatment of the species that constitute the living natural environment of England and Wales.
They have produced a 470 page report with 287 recommendations and a draft 168 page Wildlife Bill that would replace most or all of 11 Acts of Parliament and one Regulation implementing EU Directives, it is also linked to, or replaces, clauses in many other Acts and Regulations.
This is a monumental feat of considerable complexity. The wording of the original legislation has been transformed and overarching implementation, enforcement and licencing provisions have been remoulded to fit around the new structure.
This is therefore very much our first impressions.
There is no doubt that a detailed reading of the proposed wording of the legislation will reveal omissions or areas of potential concern and confusion, and wildlife law experts will be poring over the document for weeks to come.
There are several examples where the exercise has allowed the Law Commission to make sensible proposals that should close loopholes and make it easier for the police and judiciary to apply the legislation. This includes:
- 1) Making all wildlife crimes indictable and therefore those attempting to commit crimes would clearly be committing an offence – currently there are some wildlife crimes that you can attempt to undertake with immunity, as long as you fail.
- 2) Introducing a five year cycle of reviewing all of the lists of species associated with the legislation, this should improve the clarity of process and decision making
- 3) Introducing offences to catch those who make a false statement for the purpose of obtaining a registration or licence, and those who fail to comply with a licence condition.
- 4) Introducing a general power to introduce, remove or amend a close season for hunting any animal (except birds listed for hunting in the EU Birds Directive).
- 5) Bringing the definitions of ‘wild animal’ and ‘wild plant’ up to date and into line with the definition of wild bird – it would be clear that wild fungi are wild plants and that animals bred from illegally captured, or wild, parents will still be considered wild and hence protected.
- 6) Introducing a general power to require certain persons (or types of persons) to notify a relevant authority about the presence of certain invasive non-native animals or plants
What is it for?
There are some aspects of the Bill where care will be needed to avoid unintended consequences. Headlining this category is the issue of the purpose of the new Bill – why is it there, what is it to be used for and what should it achieve?
One of the most controversial effects of this consolidation exercise has been the distance it introduces between the dry legal clauses and the original intentions of the parliamentarians who introduced the clauses’ precursors with passion and developed them through political debates. With the reframing of the legislation there is a risk that it becomes a jumble of tools in a bag with no clear directions provided to enable their sensible use.
Initially the Law Commission proposed addressing this issue by introducing a list of ‘statutory factors’ for the decision maker to consider in applying the legislation. This would mean that the Minister would have to consider biodiversity, species level, economic, social and welfare issues when, for instance, changing the closed season for hunting an animal. However, this fix proved fraught with legal complexity – there are instances in EU wildlife law where it is not appropriate to consider economic factors – and the more factors that were added, the less help it provided in terms of a purpose. The replacement Law Commission proposal is to have a series of requirements on decision makers to give reasons when they make decisions.
While this may help with transparency, it does nothing to ensure that the implementation of the laws contribute to achieving the UK’s commitments to halting the loss of biodiversity as set out in the Biodiversity Convention.
In some places the Law Commission has proposed new clauses to prevent the abuse of the legislation, for instance the Secretary of State or Welsh Ministers would not be able to remove an animal or plant from certain schedules providing national protection levels unless, in their opinion:
- 1) The animal is not endangered or unlikely to become endangered
- 2) The presence of that animal in that schedule is unnecessary for the protection of the animal or plant in question (by reason of an equivalent entry added, or proposed to be added, to any other schedule); or
- 3) The removal of the plant or animal from that schedule is necessary in order to comply with an international obligation.
In some ways the existence of this safeguard only goes to underline the problems of producing a complex piece of legislation that does not set out clear purposes and may not therefore achieve legal commitments made in international conventions. The laws could even be applied in ways that are counter to the societal good. This dissonance will have to be considered careful as the Bill is developed.
Civil sanctions vs. Prosecutions
The Bill proposes extending the range of offences that could be dealt with through civil sanctions – mainly fines – rather than the courts and prosecutions. Civil sanctions can be effective, but the proposals will have to be scrutinised to ensure that:-
- 1) The sanction matches the severity of the offence, a serious crime should be treated as a crime,
- 2) The sanctions are sufficiently severe that they will form a deterrent, and
- 3) The proposed body to apply the sanction is sufficiently resourced and competent.
Vicarious liability vs. Failure to exercise proper supervision or control
It is often suspected that wildlife crimes have been committed by employees on the instruction of their employers, but currently it is almost impossible to pin the crime higher up the command chain. There have been widespread calls for ‘vicarious liability’ to be introduced, so that the employer would automatically be responsible for the criminal actions of the employee while at work. The majority of consultees to the draft Wildlife Bill proposals supported this policy, but the proposal was strongly opposed by Defra and many businesses including, in particular, stakeholders from the farming and the shooting industries.
The Law Commission propose a compromise, a new offence of “causing or permitting” a wildlife crime, that would open up the employer to prosecution where:-
- 1) a person commits an offence while acting as employee or agent of the body corporate; and
- 2) the relevant offence would not have been committed but for the failure of a director, manager, secretary or similar officer of the body corporate to exercise proper supervision or control over the actions of the agent or employee.
However, the burden of proof will lie on the prosecution which may make enforcement difficult in practice.
This proposal is likely to provoke a fiery debate as to whether it is a sufficiently robust or enforceable to hinder perceived widespread prior endorsement of wildlife crime by employers who wash their hands and walk away.
Some may also be dismayed that the Bill does not incorporate the Lead Shot Regulations and the same people may be incensed that the Bill contains a new clause that allows the authorities to issue a licence to authorise the “capture, possession or other judicious use of birds” protected by the legislation.
Reckless vs. Deliberate
Wildlife crime has used a range of terms to define the necessary mental context of the perpetrator; thereby a crime may, or may not, have been committed depending on whether the outcome or action was unintentional, deliberate or reckless.
The Law Commission have decided to create uniformity using the word deliberate: this is a problem.
Current reckless crimes include the disturbance of protected animals and the damage or destruction of their shelters. In such cases if it can be shown that the consequences were predictable but had not been assessed then a crime has been committed. The new wording means that most of these outcomes would only be crimes if either the perpetrator:
- 1) intended the outcome (i.e. the damage, destruction or disturbance); or
- 2) was aware that that his/her actions presented a serious risk of the outcome without reasonable precautions and failed to take those precautions; or
- 3) was aware that that his/her actions, even with reasonable precautions, presented a serious risk of the outcome.
There are two problems with this. Firstly it creates a motivation towards ignorance. Why look to see if there is a red squirrel dray in that old tree before I cut it down? Why check to see if that endangered snail lives in the pond? Cut ‘em down and fill ‘em in as quick as possible before anyone tells you there might be an obstacle. Secondly, it puts the emphasis on the prosecutor proving what was happening inside the perpetrators mind – was he/she thinking he/she wanted this outcome, had he/she considered the risk? Proving this to a jury or magistrate is very difficult? It is easy for the accused developer, tree surgeon, ecological consultant or farmer to shrug and say “I had no idea m’lud”.
Without ‘reckless’ it matters not how incompetent, negligent or cavalier the perpetrator was, nor the extent to which they should have known that they were about to disturb an animal or damage its home: this is all forgiven.
Removing reckless from the English and Welsh legislation also widens the divide between the qualities of wildlife protection on our island. In Scotland not only is it criminal to recklessly disturb protected animals or damage their shelters, it is also a crime to recklessly kill, injure and take them.
More on recklessness here.
Will Ministry of Justice attacks on Judicial Review stop wildlife law from working?
The Law Commission report makes it clear that the proposed legislation depends on the ability of individuals and organisations to be able to challenge decisions using the process of Judicial Review. Without a sound Judicial Review system the proposed legislation would put so much power over people’s lives and livelihoods into the hands decision makers that it would be unjust and would infringe human rights.
The report hints that the UK Judicial Review system may be too narrow in its scope to allow the challenge of decisions on a sufficiently merits basis and highlights that the compliance committee of the Aarhus Convention has signalled that the UK’s position is probably non-compliant. Indeed it is difficult to see in many cases how the Judicial Review process could be seen as a suitable appeal process for decisions about awarding licences to harm wildlife unless the judge was prepared to look, at not just the legality of the decision, but its rights and wrongs.
The Law Commission recommend that “compliance of judicial review with the access to justice requirements of the Aarhus Convention should be kept under close review.”
Unfortunately in the last few months the process of Judicial Review has been ruthlessly attacked by Government. They propose to make it almost impossible for charities to take Judicial Reviews and to strip away limitations to the costs that people can incur when attempting to initiate a Judicial Review. More on this here.
Given the implications of Ministry of Justice proposals for the UK’s compliance with international human rights and access to environmental justice legislation, and the clear implications for our own domestic legislation many wildlife NGOs believe that Parliament must now step in to protect this key part of our judicial system.
Weed Persecution – time moves on
The Weeds Act 1959 is an antiquated bit of legislation that is used by country busy-bodies to aggravate each other by trying to get the authorities to apply Weed Control Orders to their enemies.
In 2015 farmers don’t need Government to tell them what a weed is and they certainly don’t need the threat of Control Orders to help them protect they livelihoods and livestock.
Of the five listed plants Common ragwort is the only one that generates any continued controversy, but it is widely acknowledged that horses would be better served by proper enforcement of feed stuff regulations and welfare provisions.
Elements of the new Bill related to weeds and ragwort cost the state money to administer, have probably not saved the life of a single horse in the last 30 years, but cause a background rumble of damage to wild flowers and pollen and nectar resources for bees and other pollinators. Its time these laws went!
Bee Protection – time moves on 2
The Wildlife Bill does nothing to help our declining wild bees, because there are no wild bees protected by UK and EU legislation.
Protecting the nests of wild bees is a key component of Buglife’s Pollinator Manifesto. Bird nests have legal protection and it is sensible to provide similar protection to bee nests, particularly given the additional benefits that bees provide to agriculture, gardens and wild flowers. Currently nests of wild bees are subject to wilful destruction, including deliberate annihilation with insecticides. New clauses in the Bill could stop the unnecessary destruction of nests, while enabling the responsible regulation of control measures where essential. The proposal made it into the Liberal Democrat Election Manifesto (clearly not enough people realised this!). The Bill could and should be stepping in to help save our wild bees, but it isn’t.
The bigger point is that things move on; more people, more consumption and more chemicals all result in more threats and harm to wildlife. Treading water is not possible, unless wildlife law updates and improves the wildlife we are trying to hang on to will be swept away.
The draft Wildlife Bill is sensible and well prepared; there some points of contention and more are bound to come to light. Getting this right is of critical importance, these laws represent the basic contract that exists between us humans and the species that are trying to eke out an existence alongside us on this island: this is their Magna Carta.
However, no matter how crucial a foundation it is, it is not fit to address all the modern threats to wildlife, our environment and our future. Some obscure wildlife laws are 120 years old, but even the biggest chunks, the Birds Directive, Wildlife and Countryside Act, and Habitats Directive are 36, 34 and 23 years old respectively.
We hope that the Government will find time during its time in office to bring this complex bill through committee and parliamentary stages, but we also hope that it is developed with more of the passion that created Britain pioneering wildlife legislation, laws that has been adapted across the EU and further afield. Here are some examples of elements that could be incorporated into the legislation:
- 1) Protection for bee nests,
- 2) A clear purpose for the implementation of the Act to contribute to halting biodiversity loss,
- 3) The incorporation of a strengthened biodiversity duty that would mean that decision makers and businesses had to take appropriate action to protect and restore wildlife,
- 4) The incorporation two key elements of the proposed Nature and Wellbeing Act, a statutory commitment to restore nature with a framework of responsibility, and secondly statutory local wildlife plans that would provide the template for protecting and restoring places where threatened species can thrive and spread.