It seems like ages ago that the Law Commission consulted on its proposals for reforming wildlife management law. But then it was back in August 2012! After considerable deliberation and several postponements the Law Commission’s final report and accompanying Bill was published on Tuesday.
The brief was to consolidate the varied laws that cover the control, exploitation and protection of wildlife species in England and Wales into one streamlined piece of legislation. Everything from egg collecting, game management, badgers, seals and poaching to licensing and criminal liability.
This was always going to be a complex task given the age of some of the legislation, and the need to ensure that we comply fully with our international obligations under the Nature Directives.
If you want a detailed analysis of its strengths and weaknesses including what we support and what we are concerned about, well I’m afraid you are going to have to wait. Basically, it is big at 465 pages and 266 recommendations! So we haven’t digested it all yet.
But we will and in doing so we will consider the pros and cons of what is being proposed and then respond to Defra accordingly.
My colleague, Robin Wynde, has managed to skim-read the report and this is his initial assessment...
"An initial look suggests this will be a curate’s egg of a report with some proposals that we will support, some that we will need to consider carefully and others that fall disappointingly short of what wildlife needs.
For example, the proposal to protect roost sites of protected birds is a positive step. The report also underlines the importance of licences not being issued to control birds when there are other satisfactory solutions. However, the report also suggests opening up the use of licences to cover the, ill defined, ‘judicious use’ of birds, which would mean much more work for NE’s hard pressed licensing staff.
The Law Commission makes the welcome recommendation that the ‘reverse burden of proof’ should be retained in relation to certain possession offences. For example, if you have an egg collection the burden of proof is on you to show that it was taken legally rather than on the prosecution to show it was taken illegally. Conversely, they do not support the introduction of ‘vicarious liability’ where an employer would be liable for wildlife crime by a person under their control. This is despite originally consulting on such a proposal, similar to the law in Scotland, and the majority of consultation responses supporting such a proposal. In this case they cite reverse burden of proof as being one of the reasons for rejection. This was a golden opportunity to bring this aspect of the law in England and Wales up to the standard set north of the border.
In addition to covering control, exploitation and protection from harm there is a fourth and vital role that wildlife law should play. The Law Commission recognise in their introduction that the law has a role ‘to conserve wild animals and plants as a fundamental part of our common natural heritage and as integral components of complex ecosystems.’ I agree. This review must do more than making the law less of a burden and easier to use for people. The key test for the Law Commission's proposals should be what they will do for the conservation of wildlife?"
Defra aspires to lead the world in environmental protection. Responding positively to the Law Commission’s review and conservation proofing each and every proposal would be a start.
Of course, there is an argument that the most effective use of time for our politicians and civil servants at the moment would be to focus on implementing existing legislation. This is essential as a response for nature and the 25 year plan to restore wildlife.
At a time when the EU Directives are subject to review (with initial findings emerging yesterday - see here) and Defra is facing considerable budget cuts, one has to question the wisdom of embarking on a major exercise in consolidating legislation.
Yet, this is, as I say, a preliminary assessment and I shall return to this once we have all managed to assess the report in greater detail.
In the meantime, I would be delighted to hear your views.
I was involved in the original consultation. I'm particularly interested in two issues, and how the report (which like you I haven't absorbed yet) deals with them:
1. Where it is impossible to avoid some harm to individuals in undertaking legitimate management. The ultimate example is Dormouse: go in to manage a wood in summer and you may destroy nests, in winter and you may kill hibernating Dormice. In both cases the right management is likely to increase the POPULATION whilst harming INDIVIDUALS. However, doing nothing - and the present lack of clarity in the law may add to the inertia that has left half England's broadleaved woodland unmanaged - will eventually lead to the extinction of Dormouse - no population, no individuals.
2. Linked to this, I felt the problem came back to the translation of EU regulation into domestic law: the EU Directives continually refer to population, not individuals: the problem of individuals seems only to creep in in our domestic law.
The proposal for graduated penalties will be welcomed by countryside managers - that an accidental oversight - for example genuinely not knowing a species is present - can in theory attract the same criminal penalty as a carefully commissioned crime like raptor poisoning is clearly not right. It may also lead to more action where appropriate, as the enforced severity of penalties has probably led to a reluctance to convict.
However, I do think it is a pity that vicarious liability has been left out and I don't accept the arguments: My long experience has left me far from convinced that many of the worst crimes - especially systematic raptor persecution - are without the tacit consent of owners - and the instruction to gamekeepers ' put the pheasants over or its your job' (and the implied 'I don't mind how you do it') surely deserves a 'joint enterprise' approach.
Many thanks, Bob, for these wise words. Let's compare notes again soon...
Martin,
No wonder it is described as a curate's egg. Trying to combine 19th century game legislation into this as well as bringing the various wildlife legislation together is not going to be easy. It is about time the game laws were changed but I didn't expect them to be changed as part of a rather large and complex piece of legislation. The danger of any large bill that brings in and attempts to simplify multiple legislation like this is that things get missed out or misinterpreted.
I have only glanced at the bill briefly but there are couple of odd sections in there (copy and paste issues I think). This is an opportunity to push for the legislation to be properly formed and worded so that there is no interpretation problem in the future.
This has come about at the same time as the court gave its judgement on NE's refusal to license buzzard destruction. That judgement hasn't helped but it might prompt NE and others to make sure the legal wording of licences works.
I am not in favour of Vicarious Liability in such cases and recently a Cambridge University academic, Dr Findlay Stark, has also argued against it. I am not surprised that this has been omitted but it is an opportunity to press for consideration of extending the legislation so that licensing can become a useful tool.
I will try and read this in depth but this may well take some time.