Reforming wildlife law

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.