The future of wildlife law

Last Friday, I spoke at an event on the future of wildlife law and the implications of Brexit.  Below, I have shared a longhand version of what I said.  As this is an emerging agenda and we are still developing our ideas, let me know what you think.  It would be great to hear your views. And, if you like to help protect our environment laws, please visit our campaign pages here.

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Legislation can establish ambition, set standards, create institutions, make it easier for people to do the right thing and make it harder to do the wrong thing.

So, it follows that as the need to take action grows or as the circumstances change, so should the legislative response.

From a nature conservation perspective, the need for action is growing...

...in the UK, the 2016 State of Nature report showed 56% of species, for which we have trend data, have declined over the past 40 years

...in Europe, there are 421 million fewer birds today than there were 30 years ago

...globally, according to WWF, unless we take action 67% of vertebrate species could be committed to extinction by the end of this decade

Equally, in my experience, as the challenge grows so must the sector response.  Given the UK vote to leave the EU and the significance of EU law and policy to our interests, it is perhaps no surprise that the environmental NGO sector has a desire to be better coordinated than ever before.

In this talk, I will explore how the growing scientific understanding of the nature conservation crisis may influence the development of the current legal framework whilst also highlighting the implications of Brexit and the green NGO response.  In passing I shall also make comments on the role of the Judiciary and indeed the Executive.

Let’s start with an overview of the current legal framework.  It offers a mix of...

...global and regional conventions (there are about 40 and these include the Convention on Biological Diversity, UN Framework Convention on Climate Change, Convention on International Trade in Endangered Species, Convention of Migratory Species, Aarhus Convention on public participation in environmental decision making and the Bern Convention on conservation of European wildlife and natural habitats – covering the European continent and parts of Africa) which aim to set global/regional standards and targets, tackle cross boundary issues and provide a means for countries to come together to discuss common issues and to work together to help tackle them.  Examples include the CBD Aichi Biodiversity Targets (set in 2010), the recent Paris Agreement and global decisions to tackle specific declines in migratory species (such as vultures) under the CMS and/or specific causes of declines in species, such as the trade in ivory, under CITES. 

The downside of these conventions is that they are often not legally binding and those that are, have poor compliance and enforcement mechanisms. The strongest reason to act is therefore to avoid diplomatic embarrassment or to demonstrate global leadership.

...these global and regional conventions are then “transposed” into EU level legislation; in the case of wildlife this has included through EU Directives, Regulations but also commitments through e.g. the EU Biodiversity Strategy. EU legislation is considered particularly robust due to the strong compliance and enforcement mechanisms, such as the European Court of Justice. This means that any country who does not comply, can potentially be taken to court, required to remedy their failure, and if necessary fined until they do.  

...Both global and EU legislation has then traditionally been transposed into domestic legislation (both UK and devolved), the UK has also developed and adapted its own environmental legislation such as the Countryside and Rights of Way Act/Marine Act . Domestic legislation is implemented by the executive powers of the Westminster Government and devolved administrations.

So the UK vote to leave the EU and the UK Government decision to leave the Single Market means we are effectively losing that middle “tier” of legislation – which means there will potentially be the following gaps:

-        The UK may not be part of a strong regional response to tackle transboundary wildlife and environmental issues, such as marine, migratory species, pollution and climate change.

-        The UK may no longer be part of the environmental acquis and therefore any changes to or new Directives and regulations, may no longer apply in the UK.

-        The UK will no longer be bound by Article 191 of the Lisbon Treaty which specifies that environmental protection objectives should be guided by the ‘precautionary’ and ‘polluter pays’ principles

-        When EU-derived legislation is contravened, we will not be able to take the UK to the European Court of Justice upon whom we have relied to secure both justice and remedy. 

So why is this latter point so important?

Let me explain.  The RSPB is not a litigious organisation – we’ve only ever mounted 8 judicial reviews in our history.  However, JR does represent an essential mechanism of last resort and we value the process for that reason.

Here are three examples which show how the RSPB has used the domestic and European judicial systems sometimes in combination and sometimes separately...

...Lappel Bank was an internationally wildlife important site in the Medway which was destroyed to create a car and cargo park adjacent to the Port of Sheerness.  We challenged the decision and the UK judiciary referred the case to the ECJ who concluded that it was wrong for a Member State to take economic considerations into account when notifying a site and that compensatory habitat was needed to replace what was lost

...On the Ribble, we challenged the then Secretary of State’s decision to all cull 25% of the herring gull and lesser black-backed gull population to reduce conflict with BAE Systems testing.  We lost but won on appeal when the judge held the Secretary of State had misinterpreted the conservation objectives of the site by saying that the cull would not adversely affect the integrity of the SPA

...While not a judicial review, we did mount a EC complaint over Natural England’s decision to consent burning on peatlands in a Natura 2000 site.  As a result of evidence we produced, the Commission is currently urging the UK to stop burning of blanket bog in N2K sites.  Failure to comply would mean that the care may be referred to the ECJ for determination and potentially fines.

Our experience suggests that the domestic courts have important roles to play in environmental governance but are often insufficient on their own to ensure effective implementation and enforcement of environmental law. In particular, judicial review is too narrow in terms of scope and remit (usually focusing on due process), too restrictive in terms of access (including costs), and too limited in terms of remedies and sanctions. The system does not compare to the existing arrangements within the EU, with no appointed overseer taking those actions.

John Markham's image of a lesser black-backed gull

So what can we do?

1.      Increase international ambition 

 -         It is important to note, that the UK’s decision to leave the EU does not affect the UK’s obligations to the various international agreements (such as the CBD, UNFCCC, CMS etc). All of which the UK has signed up to as a country in its own right. The UK is still bound by them all.

-        However, following Brexit, the UK will no longer operate through the EU bloc. This will come with both potential advantages (ability to forge new alliances with other progressive nations e.g. with Norway, Switzerland, Japan etc) and some obvious disadvantages (less influence on our own, than as part of the EU bloc).

-         The Conservative Party manifesto and new UK Government have been clear about their need to continue to show global leadership, including on climate change, marine issues and the protection of sites and species.  

-        The Aichi Global Biodiversity Targets, which were set in 2010, are due to expire (and in large part to be missed) in 2020. A new global biodiversity framework is needed and as a world leader in biodiversity science and conservation, the UK has the opportunity to demonstrate global leadership in setting a bold and ambitious new agenda, and then leading in its effective implementation.

-        As demonstrated with climate change, as science underpinning the need for action grew, so has the ambition so much so that the Paris Agreement now includes an aspiration to keep global temperatures within 1.5 degrees C above pre-industrial averages.  On biodiversity, there is an emergent debate about how much land and sea should be protected to prevent extinctions.  While we currently have targets for 17% of land and 10% of sea, some, such as EO Wilson, are now arguing for much larger targets.  Irrespective of whether you agree that  half the earth should be set aside for wildlife to prevent extinctions, it seems inevitable that with global biodiversity continuing to decline, only by ratcheting up both ambition and implementation of these global conventions, will we have a chance of reversing the declines 

 2.      Strengthen regional and domestic legislation

 -        Increased international ambition needs increased regional and national accountability and enforcement mechanisms. An international commitment will only be reached if the individual countries signed up to that commitment all play their part, knowing there are robust enforcement mechanisms if they do not.

-        Given the glacial pace of new designations and the struggle to establish measures to improve the environmental value of land outside of protected areas, my conclusion is that focus must been better implementation and enforcement but it is likely that over time the existing legal regional framework will have to be bolstered to respond as global ambition ratchets up.  This applies to the Bern Convention and EU environmental acquis but is clearly more important domestically once the UK leaves the EU.

-        In a post Brexit world – we will be faced with two choices on these issues – continue, in some way, to be part of a wider regional response (for example to remain, in some way, part of the environmental acquis, or an European wide biodiversity framework, even though we are no longer part of the EU) or strike out alone.

-        The latter will require us to look at other countries (who are not part of the EU) but who are global leaders in environmental protection, such as Norway and Switzerland, to learn lessons from them about how we could do this well.

 3.      Be prepared to challenge decisions which seemingly undermine existing commitments made under global conventions, or threaten our wildlife

 -        In the absence of the ability to take the UK to the European Courts when they do not comply with environmental legislation, we will need to develop new levers to protect our wildlife and consider other countries methods such as and the Land and Environment Court of New South Wales, with a jurisdiction to hear merits reviews, judicial reviews, civil enforcements, criminal prosecutions and civil claims about planning, environmental, land, mining and other legislation,.

-        But we will also need to think creatively about what our role as civil society organisations are going forwards in this regards and protect and improve society’s involvement in environmental decision making including when necessary access to justice that is not prohibitively expensive.

Which leads me to explain how we have been responding to Brexit. 

The NGOs have formed Greener UK to ensure Brexit works for the environment.  We have agreed that we need to be better organised than ever before and are also working with NGOs across the UK, and those working in the other EU 27 Member States (especially the Republic of Ireland).  As nature and the threats it faces know no boundaries, we need greater cooperation and want high environmental standards across Europe.

Here are six areas where Greener UK will be devoting time and energy.  We shall work together to...

1. Ensure full parliamentary scrutiny of any changes to environmental law saved through the Repeal Act. 
2. Replace the strong compliance and enforcement framework currently provided by the EU
3. Embed established principles such as the ‘polluter pays’ and ‘precautionary’ principles in domestic legislation
4. Ensure reforms of farming and fisheries policies improve the natural environment whilst delivering much better value of tax payers’ money (for example the current £3.1bn that goes into the UK countryside every year through the Common Agriculture Policy)
5. Bolster existing environmental legislation, through a new Environment Act, so that we are better equipped to tackle the nature conservation crisis and meet our growing international obligations
6. Work with the UK Government to ensure that it remains a global leader in climate change and sites and species protection.

This is a massive agenda and I do not underestimate our ability to influence the legislature to meet these objectives, yet we are going to give it our best shot and ensure politicians use their voices for nature.  It is what our millions of supporters expect.