UK Environmental Law Association’s submission to the Environmental Audit Committee inquiry into Wildlife Crime.
1.Introduction
UKEnvironmental Law Association (UKELA)
1.1 UKELA is the UK's foremost membership organisation working to improve understanding and awareness of environmental law, and to make the law work for a better environment.
1.2This submission is made by the UKELA Nature Conservation Working Groupwhich is one of a number of working groups which have been in existence for many years. It meets on a regular basis to discuss issues relating to the legal framework for wildlife protection.
1.3Membership of the Group is open to anyone within UKELA and, as one would expect, it is composed of those with a particular interest in wildlife protection. It draws upon lawyers in private practice, public and administration, academic institutions and NGOs. This means that it is able to comment from both a theoretical and practical point of view.
1.4The Group has links with the Partnership Against Wildlife Crime, and so it is able to understand matters of enforcement of wildlife law in practice.
1.5This inquiry is timely given other initiatives undertaken by Government, such as the Environment White Paper and the Defra review of the implementation of the Habitats Directive in England. It is also timely to review progress since the last inquiry on Wildlife Crime undertaken by the Committee in 2004.
1.6We are aware that the Committee has received detailed evidence from a number of bodies and, rather than duplicate issues raised,this submission will focus on a few points unlikely to be addressed elsewhere. The Group would be happy to give further details and evidence if this would be helpful.
2.Consolidation of Legislation
2.1There is a critical need for the consolidation of wildlife legislation. Firstly, there is so much legislation with some of the oldest provisions in force being over 60 years old. This is illustrated by Michael Fry’s book ‘A Manual of Nature Conservation Law’ which in the second edition, contains one international treaty; 3 European Directives; 13 Acts of Parliament and 3 Regulations. It is over 800 pages long and does not include the relevant legislation for Scotland, Northern Ireland, the recent Marine Act and further changes to the Habitats Regulations.
2.2Secondly, some of the key legislation has been amended many times, making for unwieldy provisions which are difficult to follow. For example Section 28 of the Wildlife and Countryside Act which deals with the identification, notification and confirmation, management and protection of Sites of Special Scientific Interest (SSSIs), has been amended many times. This section currently comprises 19 components and over 100 subsections, and a total 24 pages in Michael Fry’s Manual. Other statutes have been the subject of partial amendments with the subsequent changes also being amended. This fragmentation adds to the complexity and challenge of interpretationand implementation.
2.3The exercise to consolidate legislation will be a challenge because of the complexities and also because of changes to the provisions undertaken by the devolved governments. However, much can be done to improve the existinglegislative framework for wildlife. This issue will be considered by the Law Commission under its 11thProgramme but in the meantime the Committee’s support in seeking greater consolidation of Wildlife Legislation is requested, with a recommendation be made that the Government progress this initiative.
3.Devolution
3.1Devolution has resulted in changes to primary and secondary legislation for and affecting wildlife and also in the associated policies and guidance. These have not led to major differences but do reflect the different environments, priorities and administrative structures in each of the countries. Anecdotal information appears to indicate inconsistent approaches to wildlife crime being adopted by and within the countries,but further research is needed to establish the extent of the perceived problem. The Committee’s support for this initiative is requested.
4.Enforcement prosecutionand civil sanctions.
4.1Our overview is that the situation has improved greatly since 2004 but there is still much to be done. Through the good work of ACPO and PAW more police forces are proactive and have trained and dedicated Wildlife Crime Officers. However, there are still some forces that do not have such officers (see recommendation 27of the 2004 report).
4.2A recurring theme at PAW meetings is that the service provided by
Crown Prosecution Service (CPS) is varied, depending on priorities,expertise and resources of the particular office. The RSPB produced a report in 2005 called ‘Getting AwayWith It’ which highlights this problem, andthe issues identified are still current. Further concern is raised following recent staff cuts and reorganisation that wildlife crime will have an even lower priority.
4.3We welcome the introduction of civil sanctions and look forward to
seeing them being implemented.In doing so we emphasise that the process needs to be transparent and conducted in accordance with the rules of natural justice.
4.4One concern is that the use of civil sanctions is currently constrained with regards to breaches to species licensing provisions. This is due to the absence of offences in the relevant statutes. In addition the Conservation of Habitats and Species Regulations 2010, which provides protection for habitats and species of European importance, is currently not the subject of civil sanctions. These anomalies need to be addressed.
4.5There is still a reluctance to prosecute by some agencies and the CPS because of the cost and time involved. This reluctance is misconceived. If accurate costings are kept, our experience is that the courts are willing to grant reimbursement assuming that the case is proved. However, most offenders plead guilty and where case are contested, costs can usually be recovered over time.
5.Penalties
5.1There has been much improvement due to increasing awareness of the
courts and changes in legislation.However, there is still a general
feeling of unease that penalties are often too low, either because the
damage has not been explained to the court or the court is
unsympathetic.Both of these can be addressed by raising awareness of those involved in the court process.
5.2The use of schedules of damage and cost of mitigation, as set out in
the Friskie Pet Care case, is a good legal sanction in appropriatecases. Large costs to restore a damaged habitat can be a deterrent and should be used more.
6.Local authorities
6.1These require particular mention. In conclusion 24 of the 2004 report the Committee was very critical of the ability of local authorities to fulfil their own statutory duties, commenting that it reflected at best a ‘woeful ignorance on the part of those in charge and, at worst, neglect or absolute disdain.’ We concurred with those findings at the time and are sad to report, that with a few worthy exceptions, our wide experience indicates that nothing has changed.
6.2For example, under Section 40 of the Natural Environment and Rural Communities Act 2006 local authorities are required to conserve biodiversity in the exercise of their functions. This is to meet the UK’s obligations under the Convention on Biological Diversity 1992 (Rio Convention). It carries no criminal sanction but in our experience local authorities have largely failed to implement this provision.
6.3The 2004 Committee report states that 65% of local authorities have no qualified ecologist.We believe that since 2004 the situation has further deteriorated, especially in the light of recent financial cutbacks. Youmay wish to look further into this.
7.Government initiatives
7.1The Committee needs to be aware that there are currently a number of Government initiatives to reduce the burden on businesses and to simplify policy and guidance, which could further weaken wildlife protection. Their impact will become clearer in time.
8.The State of UK Environmental legislation in 2011.
8.1UKELA, in conjunction with King’s College London and Cardiff University, has undertaken a review of environmental legislation including wildlife law. Many of the points are relevant to the Committee’s inquiry. The report will be launched on the 23rd May and a copy will be provided for the Committee.
I. Wyn Jones9th March 2012
Convenor,
Nature Conservation Working Group
UK Environmental Law Association: making the law work for a better environment
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President: Rt. Hon. Lord Justice Carnwath C.V.O.