Today is the 40th Anniversary of the Wildlife & Countryside Act 1981, one of the most important conservation laws in the UK.
Its core provisions of wildlife protection (for birds, other animals, and plants), site protection (strengthening Sites of Special Scientific Interest), and safeguards against invasive non-native species have stood the test of time.
Now, though, the Act is under considerable pressure. Planning reforms are afoot that could weaken the protection of our finest wildlife sites. Proposals to change the criteria for species protection could leave wildlife vulnerable.
There is, of course, a strong case for reform. Over time, the world and the statute book have changed around the Act. This has led to inconsistencies, like the subtly different use of “intentional” and “deliberate” in otherwise identical protection against illegal killing in the Wildlife & Countryside Act and the Habitats Regulations. It has also led to shortcomings, like the inability of the licensing provisions to move with the times to prevent the environmental harm caused by industrial-scale hunts. As the Law Commission pointed out in 2015, the law is in need of an overhaul.
But any move toward simplification must be based on an explicit agenda to rationalise and reinforce. Powerful though provisions of the Act have been, they have not proven a match for the pressures on nature. Sites and species continue to decline.
The Act creates an offence of intentionally killing, injuring or taking any wild bird or the animals listed in Schedule 5, or picking, uprooting or destroying the plants listed in Schedule 8. Those Schedules are reviewed every five years.
Currently, the Joint Nature Conservation Council is preparing its advice for the quinquennial review. Controversy has arisen because JNCC has suggested that it may advise that only endangered or critically endangered species are listed on the schedules in future.
Applying that strict approach would overlook the fact that, over time, species have been added to the schedules for a variety of sound and essential conservation (and animal welfare) reasons, which may not be recognised in their formal “red list” status. In particular, there is a risk that although species may not be currently endangered they would be if it were not for their protection under the Wildlife and Countryside Act.
Leaders at JNCC are very aware that the ecological emergency warrants stronger species protection, and they are making an effort to adapt their approach to suit the scale of the challenge. Hopefully, their advice will be clear that no species should ever be removed from the Schedules if they depend on the protection provided by the Act, and that any species could in future be added if doing so is justified by a serious threat, whether or not the species is formally recognised as endangered.
The episode has made it apparent, though, that species protection laws should be strengthened.
In future, Ministers should have a clear power and duty to extend protection to any species on a precautionary basis if it is facing a significant conservation risk. No species should face losing its protection if that protection is important to its conservation status. The breadth of protection afforded to all wild birds should be extended to all wild animals for any “deliberate” harm.
The Wildlife and Countryside Act considerably strengthened the network of Sites of Special Scientific Interest (SSSIs), which had first been established in 1949.
Currently, however, the network is a “representative network”. The Government should invest in and streamline the process for designation to rapidly complete the network, safeguarding the remaining fragments of priority habitats and important places for wildlife around the country.
At the same time, the Government should strengthen the protection provided by SSSIs. As things stand, SSSI status is only a consideration in planning decisions, rather than a firm defence. This is weaker than the protection provided by the National Site Network (SACs and SPAs) under the Habitats Regulations, which are protected from adverse effects except for reasons of overriding public interest. This disparity in levels of protection increases costs and uncertainty, leading to inappropriate and expensive speculative planning applications. Fewer than 40% of SSSIs are in favourable condition, often as a result of damaging planning decisions in or in the vicinity of the SSSI.
The forthcoming Planning Bill should mandate the completion of the SSSI network, with an expedited process for designating sites. It should end the “two tier” status of our finest wildlife sites by applying the level of strict legal protection currently enjoyed by the National Site Network (under the Habitats Regulations) to all SSSIs.
The last 40 years of conservation law have helped to slow the decline of species and habitats, but decline has continued nevertheless.
If the next decade is to be different, the Government must approach any change to environmental law with its "levelling up" mantra in mind. Gaps and inconsistencies in protection for sites and species should be addressed by strengthening protection for those that currently fall through the gaps.
Incidentally, the Wildlife and Countryside Act was also the stimulus for the creation of Wildlife and Countryside Link, so we are celebrating today. In that time, our movement has grown stronger and more united. Let us hope, though, that any changes to the Act that may come in the months ahead mean that when we celebrate our 80th birthday, we will be toasting the fact that environmental law is strong and well-enforced - and we are no longer needed.
Dr Richard Benwell is CEO of Wildlife and Countryside Link
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