A Review of the Operation of Species Legislation in Great Britain (1999) - Archived May 2002


Section 4. Options to consider for improving the effectiveness of species legislation

4.0.1 In this section we explore some of the key proposals which have arisen during the interviews and focus groups and examine the extent to which they could be worked up as new legislation to improve the conservation of threatened species in Britain. These are brought together in a series of options, rather than detailed recommendations for legislation. Most of the options discussed are relevant to both terrestrial and marine species, but there is also a section covering issues which are exclusively marine (4.1.3).
4.1.1 Reverse listing Several consultees suggested fundamentally changing the approach to species legislation. These included the suggestion to reverse list some or all species on Schedules 5 and 8, bringing Sections 9 and 13 in line with the sections applicable to birds. Reverse listing would protect all species, with the exception of introductions and pest species, from activities such as habitat destruction due to agriculture and forestry. There is certainly merit in considering this option further, although it would require much more consideration than is possible within this contract. There are several counter arguments to such a proposal, namely that the existing legislation does work for some species that are threatened by deliberate activities, but perhaps more importantly that the Biodiversity Action Plan process, being innately constructive and progressive, is already in existence, and with some improvements, could effectively bypass a requirement for more overarching legislation of this kind. Any such approach would also need to ensure that collecting specimens for taxonomic purposes should not be discouraged as has already been shown to be the case, and the view that selected species groups could be considered for reverse listing would be relevant in this context.
4.1.2 Amending the current legislation It is clear that the main threat faced by most species, both on the schedules, and listed as priority in the BAP process, is the loss and degradation of their habitats and this cannot be addressed using the provisions of the existing legislation. There are two main options to deal with this problem.
a) Restrict the schedules to those species actually threatened with deliberate harm and use mechanisms outside the current species legislation mechanisms to protect the much larger suite of species where the principal threats are to their habitats.
b) Broaden the scope of the existing legislation to address threats to the habitats of species. Supporters of the first option contend that there are a large number of species on Schedules 5 and 8 which should not be there, and there presence makes enforcement of the legislation for the relevant species all the more difficult. That group propose to restrict Schedules 5 and 8 to those species where there is a real threat (actual or potential) from deliberate damage. The advantages of this proposal are that the legislation is being used for its true purpose and a small number of species under real threat would enable the enforcement of the legislation, with appropriate amendments, to be achieved more effectively. Smaller, more focused schedules would also alleviate current problems such as discouragement of recording and research on scheduled species and the potential for collectors to take specimens of scheduled species precisely because those species were protected. If a large number of species were removed from the schedules the considerable incidental benefits derived from their protected status would be lost. There is also a danger that the wrong message could be sent out to potential or actual collectors and also owner/occupiers, who may feel they have carte blanche now to act as they please. The general public and the conservation community would also need to understand why such a major reduction in the number of species on Schedules 5 and 8 had taken place, and this would require a careful publicity strategy to be developed. These disadvantages could be offset by the strengthening of other mechanisms. These include the BAP process (and in particular underpinning this with legal provisions), existing site protection mechanisms, improving incentives for owner/occupiers of sites for species, and the improved provision of advice and information. These issues are explored in more detail later. Supporters of the second option argue that the legislation, if suitably amended, can be effective in addressing a wide range of threats, including threats from activities which are not "deliberate", to the habitats of protected species. One focus group proposed re-modelling Section 13 (and it would apply equally to Section 9) to provide a wider protection against reckless acts by owners, occupiers or third parties, with a requirement for the SNCOs or other competent authorities to inform owner/occupiers and perhaps third parties about the presence of protected species on land within their control. This would then be applied to all species under greatest threat, as defined in Red Data Books (CR/EN/VU categories) plus other species threatened by persecution or collecting. Interestingly there were no strong arguments in favour of placing all BAP-listed species onto Schedules 5 and 8 (as had been previously suggested). There were however strong arguments against this approach particularly for invertebrates. Invertebrate ecologists were concerned that collection for identification purposes would be further discouraged and this could prevent effective implementation of the action plans,. Secondly, the BAP lists do not wholly reflect species in genuine need. Third, use of BAP criteria would be likely to weight selection heavily towards vertebrates (especially birds), where there is generally good data on population estimates, compared with many plants and invertebrates where the only measure of decline is the much more dramatic contraction in range as evidenced by a reduced number of 10 km squares. There were a broad range of views similar in nature to the proposal to broaden the scope of the legislation, but no clear consensus on whether all species should fall within two broad schedules or whether the schedules should be split according to taxonomic lines or according to the threats faced. Some options to consider include
Create one integrated schedule of species ranging from the very rarest through to species of conservation concern, and allocating different legal provisions according to their status and the protection they require.
Restrict the selection of species on Schedules 5 and 8 to those species actually threatened with collection, disturbance etc., while creating a new schedule to protect species threatened by other activities.
Rationalise and increase flexibility in the selection of species by adopting the same selection criteria for all taxonomic groups, perhaps using the IUCN Red Data Book criteria.
Separate non-avian vertebrates and invertebrates into two schedules - one advantage to this approach would be to address the problems of legitimate collecting activities being discouraged.
Create a new schedule for traded species.
Allow scheduling of sub-species but not microspecies.
4.1.3 Marine Species A major threat to marine species comes from fishing practices, however the defence clause allows protected species to be killed if this is "incidental to a lawful operation which could not reasonably have been avoided". There are also no clear links to measures designed to deal with habitat damage and indirect threats such as poor water quality and perhaps prey depletion. The main options suggested were:
Improve and add to wording of protective measures to make them more applicable to marine species. This is particularly important for highly mobile species and could be covered by amendments to the Act or specific new legislation for such species.
Include measures to protect scheduled species for the direct and incidental impacts of fisheries and fisheries management measures. This may require amendment of the relevant defence clause or new provisions. Other issues which merit further consideration include
Introducing single witness requirement for offences committed at sea and extend powers of arrest to Coastguard
Improving links to measures dealing with habitat protection and indirect threats and those operating outside territorial waters.
Examining ways in which legislation can support the conservation of species which are abundant but for which the UK has an international responsibility because of their global status. There are gaps, loopholes and inconsistencies between the existing species legislation and other relevant Acts. These will require review, particularly in the marine environment: Including measures such as those found in the US Marine Mammals Protection Act and New Zealand Marine Mammals Protection Act or having a specific Whale and Dolphin Conservation Act are possibilities which have been discussed in various reports prepared for the Whale & Dolphin Conservation Society (EnAct, 1996 & 1997) and in a Dolphin agenda (Simmonds et al. ,1997) as well as being raised during this study. The relationship between species protection measures and habitat protection measures needs to be strengthened and the need for a mechanism to protect the habitat of protected species should be considered. The implications of the "incidental result" defence clause could be addressed through a duty on SNCOs or Local Authorities to notify owners/occupiers of the presence of protected species, and a right of access to those sites.
4.2.1 Protecting sites and habitats of protected species Although Section 9 does afford some protection to habitats of protected species, it does not appear that this legislation has been effective (see case studies on ephemeral ponds, great crested newt, pearl mussel and bats, Appendix 6) and is very difficult to apply for some species, particularly in the marine environment (see case studies on cetaceans and benthic invertebrates, Appendix 6). Section 13 provides no habitat protection mechanism to plants. Using the presence of a species on Schedule 5 and 8 as a selection criterion for SSSI notification has been mentioned already as one of the spin-off benefits of scheduling. It has been argued that the SSSI mechanism should be used to protect the sites of species; it already exists and works to some extent. If the SSSI system were to be used to protect sites of threatened species and the schedules were restricted to cover species only threatened by deliberate acts, the SSSI selection criteria would need to be changed. Several proposals were made to address this requirement, the principle proposal being to use the Red Data Book categories as selection criteria, to ensure that an adequate number
of populations of species were protected. However, there have been relatively few new SSSIs notified in recent years (except to meet the needs for European site designations to contribute to the Natura 2000 protected area network established under the Habitats Directive). It is doubtful that a sufficient number of SSSIs would be newly notified for species. Other criticisms of the SSSI mechanism for protecting sites for species are that it is too cumbersome, and cannot be used to protect wide-ranging, mobile, species. Other possibilities for protection mechanisms for sites of species have been suggested. These include using the Section 3 site protection mechanism, "areas of special protection"; this would still require site boundaries to be defined, as with SSSIs, and is principally a mechanism for preventing disturbance, with little positive to offer in terms of habitat management (a major threat identified in questionnaire responses). The Spanish "microsite" approach, which entails establishing small permanent reserves for endemic flora on public land, was not considered appropriate to Britain's landscape and land-use, although it was suggested as a possible EU-wide policy initiative. Other mechanisms were suggested to protect the small, but important, landscape features which provide the habitat for so many protected and threatened species. One option would be to extent a Tree Preservation Order-type measure to other features such as ponds, ditches, field corners, headlands and tracks. Another option would be to use a mechanism more akin to Scheduled Ancient Monuments to protect important landscape features. With this in mind it was suggested that owner/occupiers who could not or would not manage these features appropriately could sell them to the relevant SNCO, although the resource implications of this would make it unrealistic. Nevertheless it does seem that there is merit in considering whether some form of Protection Order for significant landscape features would be helpful in protecting the habitats of threatened species. Any such consideration would need to take into account that such a protection mechanism would be inadequate if there was no requirement for appropriate management too; any such mechanism would also need to operate both within and outside SSSIs to avoid differential degrees of protection. Another option to consider would be the creation of a broad duty of care for important features in the wider countryside, linked to Article 10 of the EU Habitats Directive and Habitat Regulation 37. An alternative model for protecting key habitats in the wider countryside is provided through the legislation in some other European countries. In Finland, for example, the principal act (1996 Nature Conservation Act) makes it an offence ".. to alter .. in such a way to jeopardise the preservation of the characteristic features of the area in question .." certain specified habitat types (including 'wild woods rich in broad-leaved species', 'coastal meadows' and 'wooded meadows'. Other countries have specific legal provisions to protect defined habitats. A general obligation to protect particular habitat types, as opposed to requiring particular examples to be designated in the manner of TPOs, could have the effect of protecting the habitat of a wide range of threatened species. The selection of habitats would require careful consideration to optimise benefits to threatened species, and the process could be achieved through a new Schedule in the Act for protected habitat types. Major advantages would be that species presence would not need to be proved in order to protect the habitat, and the general protection of specified habitat features in the wider countryside would be expected to support the site-specific (SSSI) protected area network. It may not be necessary to create a new site protection mechanism to ensure protection of the habitats of species. The same could be achieved through a combination of strengthening of the existing legislation (as described in the previous two paragraphs, for example), targeting of incentives for management and provision of advice (see section 4.4), and making the "incidental result" defence clause more difficult to use. One option to achieve this would be to place a legal duty of care on the SNCO or Local Authority obliging them to inform all owner/occupiers of the presence of a protected species on their land. A minority view was expressed that there was a danger that owner/occupiers would be more likely to damage or destroy the populations or habitats of such species if they were made so aware, but most felt that more sites were lost through ignorance than malice. To fulfil this legal duty the SNCO, Local Authority or their nominated agents would require a legal right of access onto such land, for the purposes of monitoring and to establish whether damage has occurred either to the individuals, populations or habitats of protected species. The requirement to notify owners and occupiers of the presence of a species should then enable to "incidental result" defence clause to be less readily deployed on the grounds that an owner/occupier knowing of the presence and location of a protected species should take reasonable steps to avoid damaging the populations or habitats of those species. To ensure that an owner/occupier was aware of relevant information (i.e. had 'knowledge'), a duty could be imposed upon a defined competent authority to make a formal record of a protected species as an entry in the land registry. A different approach is needed to address the "incidental result" defence clause in relation to fishing activities at sea. Specific measures needed to be incorporated in the Act to cover the impact of fisheries or fisheries management measures. Other detailed changes to the legislation or its implementation are included in Appendix 4.
4.3.1 The enforcement of the existing legislation has not been very effective (see Appendix 7). There were a number of proposals which would address the above constraints and achieve better enforcement:
Review the schedules to ensure that they contain species for which the legislation is relevant.
The central recording of offences under Sections 9 and 13 should be a function of the Department of the Environment Transport and the Regions.
A system is required to monitor and record incidents under these Sections (and equivalent sections of the Habitats Regulations).
The police should have enhanced powers to detain individuals suspected of wildlife crime, seize evidence, stop offences while they are being committed or about to be committed etc. (contradictory views were also expressed regarding the powers already available under the Police and Criminal Evidence Act).
Impose greater penalties, including custodial sentences, consistently such that they act as a deterrent.
Pursue cases to develop case law and test this through appeals to clarify interpretation.
Clarify the meaning of the law to include explanation of the motives behind the legislation.
Tighten definitions within the law based on the experience of cases that have failed or had difficulties; review the concept of "species" in wildlife law.
Introduce single witness requirement for offences committed at sea and extend powers of arrest to the Coastguard
Develop DNA fingerprinting techniques to help establish whether specimens were collected in the wild or cultivated/grown in captivity.
Develop and enhanced role for Local Authorities in enforcement.
Extend the approach of "licensed workers" developed for bats to cover other taxa. Many proposals were made concerning other measures available to deliver species conservation objectives above and beyond what the current legislation is doing or could do if it was properly implemented and enforced. More integration between environmental and other policies was seen as a priority to help achieve better species conservation. The principal policy initiative developed to try and achieve this goal, the Biodiversity Action Plan (BAP) process, was regularly promoted as a possible alternative solution to species protection legislation, but only when the process itself has some form of legislative basis. The need to raise public awareness of the plight of threatened species was also identified as of critical importance, as was the need to reform damaging agricultural polices.
4.4.1 Awareness and Information The provision of information and advice to owners, occupiers, specific interest groups and the general public were perceived to be some of the most effective measures available for achieving better species conservation, according to the questionnaire responses received (see Appendix 3) and see case studies on Pearl-mussel, benthic invertebrates, bats and great crested newts. The following proposals were made to improve the provision of advice and information
Improve information flow and application through use of the National Biodiversity Network, Local Environmental Records Centres, etc.
Influence professions through codes of conduct, backed up by an explicit duty of care.
Provide better information and public education to reduce risks e.g. of snakes being killed.
Raise awareness of protected status and needs of scheduled marine species.
Provision of advice through codes of practice to prevent disturbance and harassment of marine species.
Provision of advice on management requirements of landscape features for species, through FWAG and other equivalent organisations
Observer schemes to help target conservation effort for marine species.
4.4.2 The BAP Process As discussed earlier the BAP process has been put forward as an alternative mechanism for species conservation in parallel with reduced schedules concentrating on species threatened by deliberate acts of destruction and disturbance. A number of improvements have been suggested for the BAP process, both in terms of legislation and policy. Firstly, clear evidence needs to be presented that the BAP process is actually working for species. The current confusion between the various roles of the schedules, the BAP process and the Red Data Books also needs to be addressed. Attitudes towards the BAP process need to change, both within the conservation community and more widely, to highlight the importance of the BAP process and its new enhanced role in species conservation. This would be helped if a clear legal basis for the BAP were provided, and if the presence of BAP-listed species were a material consideration for Local Authorities to take into account when drawing up local and structure plans, and when determining planning applications. This could be achieved through Ministerial Order and Planning Policy Guidance Notes.
4.4.3 Reform of the Common Agricultural Policy Opportunities for improving species protection and conservation through reform of agricultural policy were raised in most arenas. Suggestions included the targeting of existing agricultural support mechanisms such as the Countryside Stewardship, ESAs and the Organic Aid Scheme, as well as Woodland Grant Schemes, towards the management of sites supporting threatened species and to broad improvements in habitat quality, such as the water quality of inshore areas for lagoon species. Although these are voluntary mechanisms, changes to agriculture and forestry policy, increased resources and better targeting of those schemes would still be necessary if they are to contribute positively. Regulatory measures were also proposed to address threats posed by agriculture. One proposals was that land-use planning controls be extended to agriculture and silviculture. This option could be considered as part of a broader review of planning legislation, but would be unlikely to happen in isolation from such a review. Others proposed to tie in species conservation requirements with cross-compliance for CAP support payments. This would mean that in order for a farmer to receive any payments under the CAP, they would have to ensure that populations of protected or threatened species on their land had not been damaged as a result of the agricultural activities being supported, and that the management requirements for those species were taken into account on that farmers land. There is certainly merit in considering this option as part of a broader set of cross-compliance measures being considered as part of the Agenda 2000 debate.
4.4.4 A duty of care Duty of Care has already been mentioned in terms of SNCOs and other competent authorities notifying owner/occupiers of the presence of protected species. Another duty of care obligation was proposed for public bodies to deliver conservation objectives for top priority BAP species or RDB species. This could be achieved by amending Planning Policy Guidance to require Local Authorities to maintain or achieve favourable conservation status for listed species. For marine species, a Duty of Care would require Local Authorities to support conservation management of intertidal sites, develop policies in local plans, and protect sites through development control, particularly for species in lagoons and on the foreshore. Their actions can also assist in the conservation of species and habitats in nearshore waters An alternative view held that Local Authorities already devote significant time to protected species (charismatic ones in particular) which could better be spent on wider habitat management issues and that resources should be focused on habitat issues.