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
4.1.1.1 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
4.1.2.1 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.
4.1.2.2 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.
4.1.2.3 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.
4.1.2.4 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.
4.1.2.5 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.
4.1.2.6 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.
4.1.2.7 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.
4.1.2.8 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.
4.1.2.9 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
4.1.3.1 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.
4.1.3.2 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.
4.1.3.3 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.
4.2.0.1 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.
4.2.0.2 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
4.2.1.1 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.
4.2.1.2 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.
4.2.1.3 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.
4.2.1.4 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.
4.2.1.5 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.
4.2.1.6 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.
4.2.1.7 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.
4.2.1.8 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.
4.2.1.9 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.
4.2.1.10 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.
4.4.0.1 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.
4.4.0.2 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
4.4.1.1 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
4.4.2.1 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
4.4.3.1 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.
4.4.3.2 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.
4.4.3.3 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.
4.4.4.1 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.