The Countryside Alliance’s Response to the Law Commission’s Consultation on Wildlife Law.
The Law Commission is yet to respond to the consultation and we will keep supporters appraised of the Commission’s views.
Law Commission Consultation on Wildlife Law
The Countryside Alliance welcomes the opportunity to respond to the Law Commission’s consultation on Wildlife Law. The Countryside Alliance is a campaigning organisation covering the whole of the United Kingdom, whose aim is to promote the countryside, country sports and support the livelihood of rural people and their communities. As a membership organisation with over 105,000 individual members and more than 250,000 affiliated members, we reflect the views and concerns of a broad range of rural people and their livelihoods.
The Law Commission has identified the problems with the existing legislative framework of wildlife laws and that there is merit in consolidating and clarifying existing legislation. However, we believe what is being proposed does not amount to the new legislative framework for wildlife management which stakeholders were led to believe was the purpose of the review. Indeed we doubt whether the proposed changes will represent such an improvement on the current situation, as would merit the time and resources involved in passing new legislation.
A single statute is desirable, however, this simply cannot be achieved while habitats are excluded both from the review and any subsequent legislation. Moreover, there does not appear to be any agreed set of principles underlying these wildlife management law proposals. The fundamental principle must be that it must be possible to manage all wildlife and that there must be a presumption in favour of management. Management is essential to protect biodiversity, for ensuring a balance between species, to ensure the welfare of a species itself and to ensure a sustainable environment. It requires a balance between competing interests. There should not be any species that attracts blanket protection. A wildlife management law should be based on a presumption in favour of management. Badgers need to be managed just as foxes and rats do. Welfare is not a consideration and European law, quite rightly, does not include welfare as a consideration. Killing, so long as carried out humanely, is not a matter of welfare.
We are of the opinion that what the Law Commission has done to date is a useful starting point, but that a much more fundamental reform of wildlife law is needed which enshrines the core principles of management into law and proceeds on the basis of logic, science and evidence. The current proposals will only go some way to clarify the existing situation; it will not achieve a framework which protects the essential need of land managers to manage wildlife, whether they are badgers, cormorants, buzzards or rats. The Hunting Act, while outside the scope of the review, is just such an example of where principle and evidence were set aside for political prejudices so that you can hunt a rabbit but not a hare (unless it has been shot); you can use a terrier to flush a mammal from below ground to protect birds kept or preserved for shooting but not to protect livestock or poultry. Similarly, licences are granted to kill cormorants to protect fish stocks but not to use non-lethal methods to control buzzards, which would reduce damage to game birds and wild birds. This inconsistent and illogical approach to wildlife management leads to legislation which is harmful to biodiversity, harmful to species and harmful to a sustainable environment, and does not command respect. The law needs to recognise these facts and not perpetuate the status quo which hampers management in many situations.
Countryside Alliance Response
Question 1-1: Do consultees think that the marine extent of the project should be limited to territorial waters?
Provisional Proposal 5-1: We provisionally propose that there should be a single wildlife statute dealing with species-specific provisions for wildlife conservation, protection, exploitation and control.
We think that a single unified law could be an improvement on the existing situation where there are a large number of Acts which have been amended over time. A single Act could help both those who manage wildlife and those with responsibility for enforcement. However, we are not certain that what is currently proposed would represent a substantial improvement, not least because the proposals do not include habitats. As such those parts of existing legislation which deal with habitat protection would still remain in a number of older Acts.
We are concerned that in the process of creating a single unified law the licensing regime that exists for taking and killing protected species would begin to apply to game species and other wild animals that currently do not require licences to take or kill. It is essential that in seeking to simplify the statutory framework for wildlife law the requirements of the new law are not more onerous than the current arrangements. As such the new single statute needs to be drafted to recognise that those huntable species that can currently be taken or killed without a specific licence being applied for should continue to remain in the same position under the new legislation.
We are also concerned that throughout the preparatory work for the consultation there was frequent reference to this process being about the creation of a wildlife management law. Yet wildlife management does not seem to be the objective of what is being proposed.
The need for a proper understanding of management is well illustrated by the brown hare, which is the focus of conservation effort, while at the same time being a game species and a recognised pest species. It needs management not protection, especially given that population densities vary across the country. What is necessary in terms of management in East Anglia may not be the same as in the West Midlands.
There needs to be a clear understanding that wildlife management is the objective of whatever regime is put in place and not a protectionist approach which bans everything and then requires extensive exemptions, defences and licensing regimes.
Provisional Proposal 5-2: We provisionally propose that our proposed single statute should not include the general welfare offences in the Animal Welfare Act 2006 and the Wild Mammals (Protection) Act 1996.
We agree that the general welfare offences from the Animal Welfare Act 2006 would not be appropriate within the context of the new statute. The Animal Welfare Act offences already apply when a wild animal comes under the control of man and as such provides the necessary welfare protection where it is appropriate. To apply the offences more generally would be unworkable as it would require landowners to make provision for welfare which would be absurd in relation to wild animals. Similarly we do not think that the Wild Mammals (Protection) Act 1996 would work within the proposed new legislation.
A wildlife management law should deal with management. Welfare is not a consideration in the sense of whether or not management is desirable or permissible. If management is necessary then it must be permitted and those managing wildlife should be able to do so by all lawful means.
Provisional Proposal 5-3: We provisionally propose that the provisions in the Wild Mammals (Protection) Act 1996 be incorporated into the Animal Welfare Act 2006.
We would object to the provisions of the Wild Mammals (Protection) Act 1996 being placed within the Animal Welfare Act 2006. The Animal Welfare Act creates a legal framework for regulating the welfare of domestic animals and wild animals that have come under the control of man. Many of the protections within the Act are based around the five freedoms. The five freedoms do not and cannot apply to animals in the wild. The Animal Welfare Act does not concern itself with protecting welfare standards for wild animals; it is concerned with protecting the welfare standards of domestic animals and wild animals under the control of man as well as preventing unnecessary suffering being caused to them.
The Wild Mammals (Protection) Act 1996 prohibits certain defined acts from being carried out in order to intentionally cause unnecessary suffering to wild mammals. The Act does not concern itself with any other wild animal apart from mammals, whereas the Animal Welfare Act can apply to all animals. The Act does not prevent all forms of causing unnecessary suffering to wild mammals. The use of Warfarin as a rat poison provides a good example of why this is the case. The poison causes unnecessary suffering to individual rats in that it takes them a long time to die painfully having ingested the poison. It is however a lawful method of killing rats and is therefore not banned by the Act.
The Animal Welfare Act and the Wild Mammals (Protection) Act are based on very different legislative principles and would not fit together in the way envisaged by the Law Commission. If a single piece of legislation dealing with the welfare of wild animals was necessary then it should be enacted. The Wild Mammals (Protection) Act could be replaced by such a piece of legislation. Placing the current provisions of the Wild Mammals (Protection) Act within the Animal Welfare Act would not have the effect of creating a single piece of legislation dealing with welfare standards for wild animals. It would have the effect of creating a disjointed piece of legislation that would cause problems in terms of wildlife management and would not improve the position in regard to the welfare of wild animals.
Provisional Proposal 5-4: We provisionally propose that the new regulatory regime should contain a series of statutory factors to be taken into account by decision makers taking decisions within that regulatory regime.
It is difficult to provide a response to this question without knowing exactly what decisions the statutory factors are going to apply to.
It is also unclear how the statutory factors are to be approached. The proposal recognises that the statutory factors are based on competing interests. In most situations the different factors are likely to come into conflict with each other. Conservation of a species or of biodiversity will come into conflict with economic factors, in the form of the needs of farmers and land managers. It is not clear how a decision maker is invited to resolve this conflict. It is not clear which of the statutory factors is supposed to have precedence when a conflict arises. It is not clear how policies will be developed to resolve these issues.
In principle we would accept that having a set of statutory factors may benefit decision makers, but we would need to know the extent of this proposal before we would be in a position to support it.
Provisional Proposal 5-5: We provisionally propose that the factors listed in paragraph 5.49 above should be formally listed, to be taken into account by public bodies in all decisions within our provisionally proposed wildlife regime.
We object to the inclusion of “the welfare of those animals potentially affected by the decision” as a statutory factor for decision makers. While the full extent of the nature of the decisions affected by the statutory factors is not clear, it is clear that many of the decisions will be whether to licence the killing or taking of animals for various purposes. Apart from cases involving sick or injured animals, it will never be in the welfare interests of the animals involved to be killed or taken. It is inconceivable that it would assist a decision maker considering whether to licence the killing of a group of healthy wild animals to consider how that would affect their welfare.
Any decision to cull wildlife has welfare implications for individual animals but it is equally important to consider the welfare of species populations as a whole. The proper management of deer would be an example as indeed would be the ongoing controversy over badger culling. There may be situations where responsible management requires the compromise of individual animals to ensure the welfare of that species or other species. This is recognised by the consultation document when it states “it is not impossible for welfare considerations to conflict with conservation imperatives”.
Welfare also relates to ‘method’, in the sense that a method can be conducted according to best practice or conducted badly or that different methods can be shown to be more or less humane. By introducing welfare as a statutory consideration the entire process is likely to become bogged down in arguments about the relative merits of different methods in welfare terms and unending appeals against licensing decisions.
In the context of decisions, other than culling, we are concerned that decisions that may impact on wild animals, such as the licensing of construction/building works needed in rural development, would be impossible to make if animal welfare was a statutory consideration. The decision makers will already be balancing the economic advantages of a development being allowed against the conservation of species and biodiversity in the area. Having to consider the welfare of the individual wild animals concerned would be an irrelevance that would be likely to cause any decision made to be challenged on the grounds that the decision maker gave insufficient weight to the question of welfare.
Clearly much will depend on which species are listed in which schedules and therefore which regime applies, however we would suggest, given what we understand of the existing proposals that it would be preferable to keep welfare within its own legal framework. The job of the statutory licensing authority is to judge the case for management. It should then be for managers to decide which lawful method is most appropriate and they will be subject to welfare laws were they to cause unnecessary suffering etc. under the existing law.
Question 5-6: Do consultees think that the list of factors we suggest is appropriate? Do consultees think that there are other factors which we have not included that should be?
We would suggest that there are other factors which should be included in the list of statutory considerations including wildlife management. It is imperative that wildlife management is not sacrificed to political considerations and perceived public opinion. Expanding the considerations would ensure wildlife management based on facts and need and not opinion and sentiment. Considerations should include: ~
• wildlife management.
• preventing and reducing damage caused by wild animals to livestock, game birds and wild birds, food for livestock, crops including fruit and vegetables, growing timber, fisheries, and other property.
• whether the activity involves obtaining meat for human and animal consumption.
• reducing human and animal disease.
We think including welfare here would hamper essential wildlife management decisions rather than assist. The existing law has worked well and avoided the pitfalls to which a specific welfare consideration could give rise. Given the current proposals we think welfare should continue to be dealt with in separate legislation.
Provisional Proposal 5-7: We provisionally propose that wildlife law continue to be organised by reference to individual species or groups of species, so as to allow different provisions to be applied to individual species or groups of species.
Proposal 5-8: We provisionally propose that the new regime for wildlife use section 26 of the Wildlife and Countryside Act 1981 as the model for its order-making procedures.
Provisional Proposal 5-9: We provisionally propose that there should be a requirement to review all listing of species periodically.
Provisional Proposal 5-10: We provisionally propose that where the Secretary of State decides not to follow advice made by a regulator (such as Natural England) on updating a list there should be a duty on the Secretary of State to explain why the advice is not being followed.
Provisional Proposal 5-11: We provisionally propose that five years should be maintained as the maximum period between reviews of the listing of species within the regulatory regime.
Provisional Proposal 5-12: We provisionally propose that the regulatory regime should have a general power allowing close seasons to be placed on any animal, and to allow for the amendment of close seasons by order.
We do not agree that there should be a general power allowing close seasons to be placed on any animal, nor do we agree that the amendment of close seasons should be by order.
Currently close seasons are set out in statute. Is this power to make orders to be exercised by the Secretary of State in England and Welsh Ministers in Wales or could orders be initiated by a body such as Natural England? It is assumed this is to be an order making power for ministers subject to parliamentary/Welsh assembly approval via the affirmative procedure.
There is clearly a danger that if seasons can be altered by order then they could become a political football in future. The question of a close season for hares is a current case in point. There is no evidence to suggest that the introduction of a close season would help in conservation terms. Rather it could be harmful both in increasing culling ahead of a close season and in restricting necessary management in areas of high population where damage is done to crops.
Any such power must be only exercisable by the Secretary of State or Welsh Ministers and subject to proper parliamentary scrutiny and requirements to consult. The general power to introduce close seasons could otherwise be used to ban or restrict management activities without justification. There also need to be exemptions for management necessary in connection with farming etc.
Question 5-13: Do consultees think that the appropriate regulatory technique for the management of listed species is to prohibit certain activity, permit certain exceptions, provide specified defences and allow for the licensing of prohibited activity?
This will depend entirely on which species are listed. If the new legislation is concerned solely with the species currently protected in domestic law’ then the regulatory technique envisaged would in our view be appropriate. Our concern is that there should not be a general system of prohibiting the taking and killing of wild animals, or the taking of wild plants, followed by a system of licensing. Currently game species, pest species and many plant species can be taken or killed without a licence. This should remain the case. There should be a presumption allowing the management of wild animals by any lawful means unless there is a good reason to provide some degree of protection under one of the regimes under the proposed legislation. This approach is very similar to that taken in the Wildlife and Countryside Act 1981.
Question 5-14: Do consultees think that it is undesirable to define in statute individual, class or general licences?
We think there would be merit in providing clear definitions of the different types of licence on the face of any legislation. However, this assumes that what is defined is simply the difference between an individual, class and general licence and not an exhaustive list of the various types of licence which can be issued according to various purposes. If the question is simply about defining the ‘user groups’ to which a licence can apply then we see merit in providing a definition. We do not see merit if this were to extend to every conceivable type of purpose for which a licence might be granted.
Provisional Proposal 5-15: We provisionally propose that the maximum length of a licence provision permitting the killing of member of a species, including licensing a particular method, should be standardised at two years for all species that require licensing.
We have no objection to two years. However, we would question why there is reference to “particular method” here. If the management of the species has been judged necessary and a licence granted, the method should be a matter for the person on the ground, so long as it is lawful.
Provisional Proposal 5-16: We provisionally propose that there should be formal limits of ten years for all other licences provisions.
Provisional Proposal 5-17: We provisionally propose that there should be a general offence of breaching a licence condition.
Provisional Proposal 6-1: We provisionally propose that the definition for “wild bird” in Article 1 of the Wild Birds Directive (birds of a species naturally occurring in the wild state in the European territory of EU member states) be adopted in transposing the Directive’s requirements.
We agree that Article 1 definition be adopted so long as Annex II of the Wild Birds Directive is transposed in its entirety.
We are concerned that the current definition does not take account of birds that have been bred in captivity, such as those used for falconry which fall within the definition of “wild bird” but have never been in the wild.
Question 6-2: Do consultees think that the general exclusion of poultry from the definition of “wild bird” should be retained?
Question 6-3: Do consultees think it necessary to deem game birds “wild birds”?
We would question whether this is necessary. Game birds are listed in Annex II of the Birds Directive as a huntable species and are, we believe, already covered by the existing definition of “wild bird”.
Question 6-4: Do consultees think that the exclusion of captive bred birds in EU law is best transposed by solely transposing the provisions of the Wild Birds Directive, or by express reference to the exclusion?
Our preferred option would be to have this included expressly. This would remove any room for doubt.
Provisional Proposal 6-5: We provisionally propose using the term “intentionally or recklessly” to transpose the term “deliberately” in the Wild Birds and Habitats Directives.
We would oppose this proposal. We do not agree that a correct reading of the two cases mentioned in the consultation document lead to a safe conclusion that EU interpretation of the word “deliberate” includes intentional or reckless behaviour. The Commission v Spain was not concerned with reckless behaviour at all and there is no way of knowing what circumstances the court had in mind when it considered that someone may have “accepted the possibility of such a capture”. It does not follow that any reckless behaviour would cause a breach of the condition requiring “deliberate action”.
The Commission v Greece also does not provide good authority that reckless behaviour is to be considered deliberate. In that case the notices on the beach provided evidence that Greece had known there would be a risk of deliberate disturbance. As the consultation document points out “deliberate” behaviour includes “oblique intention”. It was a virtual certainty that the use of mopeds on the beach, pedalos and small boats in the sea during breeding season would cause disturbance to sea turtles so the actions described could not be described as reckless.
In any event both cases were concerned with a State’s obligations to prohibit deliberate actions. They were not concerned with defining an individual citizen’s actions as deliberate or reckless.
It is our view that to transpose “deliberate” as meaning “deliberate or reckless” is to gold plate the provision.
Question 6-6: Do consultees think that badgers protected under the Protection of Badgers Act 1992 or those protected currently by section 9(1) of the Wildlife and Countryside Act 1981 (from damage, destruction or the obstruction of access to a shelter or place of protection, or the disturbance of an animal whilst using such a shelter or place of protection) should be protected from intentional and reckless behaviour?
We would oppose this proposal. We are opposed to any further offences against badgers that involve an element of recklessness. While there were historical reasons for extending protection to badgers, they are not an endangered species and, as an active predator, can contribute to the decline of other species in areas where badgers are extremely abundant. The contribution that badgers make to the spread of bovine TB is well documented. There are no compelling wildlife management or conservation reasons for extending further protection to badgers and good reasons for questioning the extent of the protections they currently enjoy. Badgers serve as a good example of the dangers of sentimentality and the political pressure from Animal Rights groups causing decisions to be taken in regard to wildlife protection that are ill founded.
We also think that, as a matter of principle, the exercise at the heart of this consultation which is to simplify and unify the laws relating to wildlife should not involve altering the current protections offered to wildlife.
Question 6-7: Do consultees think that the term “disturbance” does not need to be defined or qualified within the provisionally proposed legal regime, when transposing the requirements of the Wild Birds and Habitats Directives?
Provisional Proposal 6-8: We provisionally propose that the disturbance provisions contained in sections 1(1)(aa), 1(1)(b), 1(5), 9(4) and 9(4A) of the Wildlife and Countryside Act 1981, regulation 41(1)(b) of the Conservation of Habitats and Species Regulations 2010 and section 3(1) of the Protection of Badgers Act 1992 can be brought together and simplified.
Agree – however, we cannot comment further without sight of how this wording would be brought together and how it would sit within the overall framework.
Question 6-9: Do consultees think that the badger would be adequately protected from disturbance, and its sett protected if covered only by the disturbance provision?
Question 6-10: Do consultees think that the protection afforded European Protected Species (except the pool frog and the lesser whirlpool ram’s horn snail) under section 9(4)(c) of the Wildlife and Countryside Act 1981 does not amount to “gold-plating” the requirements of the Habitats Directive?
This question requires a consideration of whether to define “obstruction” of a resting place as causing “deterioration” of a resting place. We do not agree that a temporary obstruction to a resting place that causes no damage can be said to cause deterioration to the shelter. If the directive had intended to prohibit obstruction it would have done so. There would appear to be gold plating in these circumstances. We are concerned that there is a real danger here of seeking to justify gold plating on its perceived merits rather than strictly avoiding gold plating.
Provisional Proposal 6-11: We provisionally propose the removal of the defence of action being the “incidental result of a lawful operation and could not reasonably have been avoided” located currently in section 4(2)(c) of the Wildlife and Countryside Act 1981.
We are opposed to the removal of this defence from the Wildlife and Countryside Act. We are concerned about the effect that this proposal would have on land management.
Provisional Proposal 6-12: We provisionally propose that there should be a general defence of acting in pursuance of an order for the destruction of wildlife for the control of an infection other than rabies, made under either section 21 or entry onto land for that purpose under section 22 of the Animal Health Act 1981.
Provisional Proposal 6-13: We provisionally propose that Article 7 of Wild Bird Directive be transposed into the law of England and Wales.
Agree – This is the Article covering the specification of the conditions under which hunting and falconry can be undertaken (Article 7). (Huntable species are listed on Annex II of the Directive).
Provisional Proposal 6-14: We provisionally propose that the transposition be accompanied by the establishment of species specific close seasons.
Agree – but there would need to be suitable licensing arrangements for land management. The establishment of close seasons must avoid unnecessary complexity. There is a good argument for the establishment of close seasons for classes of species, such as ‘wildfowl’ ‘waders’ and ‘game birds’ as is broadly the case at present, but differing close seasons for, say, gadwall, mallard, wigeon and teal would make proper observance of the law very difficult indeed and almost impossible in practice. We would thus oppose a regime which allowed the creation of a wide diversity of different hunting seasons relative to different species.
Provisional Proposal 6-15: We provisionally propose that the transposition be accompanied by codes of practice explaining “wise use”.
We do not consider that it is necessary for codes of practice to be developed in this area. There have been no suggestions since the Birds Directive came into force that hunting in this country offends against the principle of wise use. It would appear that those engaged in hunting organise their activities in a manner that already complies with the principle.
Provisional Proposal 6-16: We provisionally propose that breach of the codes of practice would mean that the defendant would have to show how they had complied with “wise use”, otherwise the underlying offence of taking or killing a wild bird would have been committed.
We would oppose reversing the burden of proof in regard to a breach of a code of practice. In transposing the Birds Directive into law a decision will have to be made whether hunting that is not compliant with the principle of wise use is itself a criminal offence. If such hunting is criminalised we believe a court will be able to determine whether an offence has been committed by interpreting the principle of wise use based on the evidence provided by the Prosecution. We do not think there is a case for creating offences based on breaches of Codes of Practice which we believe are themselves unnecessary. This would be the effect of this proposal in our view.
Provisional Proposal 6-17: We provisionally propose that such codes of practice be issued by either the Secretary of State or Welsh Ministers.
If there are to be codes then the Secretary of State and Welsh Minister should issue them subject to proper consultation requirements with expert and practitioner bodies and subject to parliamentary approval.
Provisional Proposal 6-18: We provisionally propose that the term “judicious use of certain birds in small numbers” be one of the licensing purposes.
We agree. The range of activities covered by “judicious use of certain birds in small numbers” should be available for licensing under any regime which flows from Article 9(1)c of the Wild Birds Directive and which is successor to S16 of the 1981 Act. We wish to make it clear, however, that the lawful hunting of species in season, including the hunting of wild birds under a regime which flows from Article 7 of the Wild Birds Directive, should not be constrained by any licensing arrangement.
Question 6-19: Do consultees think that it is not necessary to require the reporting of all members of a species taken or killed as a matter of law for our provisionally proposed regime?
Question 7-1: In which of the following ways, (1), (2) or (3), do consultees think that domestically protected species not protected from taking, killing or injuring as a matter of EU law should be protected?
(1) All domestically protected species not protected as a matter of EU law should be protected from being intentionally and recklessly taken, killed or injured.
(2) Badgers and seals should be protected from being intentionally and recklessly killed, taken and injured; all other domestically protected species not protected as a matter of EU law should be protected from being intentionally taken, killed or injured. It would be possible subsequently to move species between the two groups by order.
(3) All domestically protected species not protected as a matter of EU law should be protected from being intentionally taken, killed or injured.
We think that option (3) is to be preferred.
Question 7-2: Do consultees think that the offences of selling certain wild animals, plants and fish, should include the offences of offering for sale, exposing for sale, and advertising to the public?
Provisional Proposal 7-3: We provisionally propose that there should be a power to amend the species covered by the crime of poaching.
Question 7-4: Do consultees think that the offence of poaching concerns matters beyond simply the control of species?
Poaching has nothing to do with the “control of species” nor is poaching an offence merely concerning the protection of species. It also concerns the interference with the exclusive rights of others to kill or take wild animals.
Question 7-5: Do consultees think that the offence of poaching should require proof of acting without the landowner’s consent in relation to the animal rather than proof of trespass?
We do not think that this proposal has been well conceived. Sometimes the owner of land has the sporting rights over the land, but on other occasions the sporting rights are held by the occupier of land who is not a land owner. The sporting rights can also be held by those who neither own nor occupy the land. Poaching is an offence against those with rights to take wild animals from a piece of land, not necessarily landowners. As such a requirement to obtain a landowner’s permission is not necessarily relevant to the offence. The current arrangements at least mean that a person entering land as a trespasser does not have the permission of anyone who could allow them to enter land to take wild animals, including the landowner, occupier or owner of sporting rights. If it is necessary to change the elements of the offence of poaching then it would be advisable in our view to include a requirement to have the permission of the person with the right to take wild animals from a piece of land.
Provisional Proposal 7-6: We provisionally propose that a reformed offence of “poaching” should be defined by reference to whether the person was searching for or in pursuit of specified species of animals present on another’s land, with the intention of taking, killing or injuring them, without the landowner or occupier’s consent, or lawful excuse, to do so.
As stated above we believe that this proposal should involve the consent of the person with sporting rights over the land in question.
Provisional Proposal 7-7: We provisionally propose that it should remain an offence to attempt the offences in the new provisionally proposed regime.
Provisional Proposal 7-8: We provisionally propose to consolidate the common exceptions to prohibited acts set out in existing wildlife legislation.
Agree – however, we would like to see the proposed wording and how it actually fits within the overall legislative structure before commenting further.
Question 7-9: Do consultees think that purely domestic licensing conditions should be rationalised using the conditions contained in the Berne Convention?
In addition to the conditions contained in the Berne Convention we also believe that preventing the spread of disease, protecting game birds and obtaining meat for human or animal consumption should be individual licensing conditions.
Provisional Proposal 7-10: We provisionally propose that both individuals and classes of persons be able to benefit from a badger licence.
Provisional Proposal 7-11: We provisionally propose that the current burden of proof on a person accused of being in possession of wild birds or birds’ eggs should be retained.
We oppose in principle the reversal of the burden of proof. We understand why this was done when the original legislation was passed. However, there is a question as to whether this is still appropriate in particular because with advances in DNA testing it is possible to establish whether an egg or bird has been taken from the wild or is lawfully held. We would suggest that there is a case that the burden should be on the prosecution to prove an offence at least for those birds and eggs of species commonly captive bred.
Question 7-12: Do consultees think that, as under the present law, a person charged with digging for badgers should have to prove, on the balance of probabilities that he or she was not digging for badgers?
We oppose the reverse burden of proof here. It should be for the prosecution to show that a person was digging badgers not the other way around.
Provisional Proposal 8-1: We provisionally propose that there is a sufficient case for the reform of the regulatory and enforcement tools available for the delivery of Government policy.
Provisional Proposal 8-2: We provisionally propose that there should be a mechanism allowing for the emergency listing of invasive non-native species.
Given that Europe is due to bring forward legislation on non-native invasive species, and that this legislation is supposed to be about the management of our indigenous flora and fauna there must be merit in addressing the issue of invasive non-native species under separate legislation
Question 8-3: Do consultees think that such emergency listing should be limited to one year?
Agree – this listing should be capable of renewal as necessary.
Provisional Proposal 8-4: We provisionally propose that the Secretary of State and Welsh Ministers should be able to issue an order requiring specified individuals (whether by type of person or individual identity) to notify the competent authority of the presence of specified invasive non-native species.
It is unclear as to the scope of the power here and the burden on owners and occupiers of land and other persons. It would be a huge burden were such orders to require those who own many thousands of acres to inspect every square inch for an invasive non-native species as opposed to having a simple duty to report something if found.
Provisional Proposal 8-5: We provisionally propose that there should be a defence of “reasonable excuse” for failing to comply with the requirement.
Provisional Proposal 8-6: We provisionally propose that the full range of licences can be issued for activity prohibited in our scheme for invasive non-native species.
Provisional Proposal 8-7: We provisionally propose that the power to make species control orders on the same model as under the Wildlife and Natural Environment (Scotland) Act 2011 should be adopted by our new legal regime.
We do not agree that there is currently a need for powers to be created to enter land in order to carry out the destruction of non-native invasive species. We would oppose this proposal.
Provisional Proposal 9-1: We provisionally propose that part 3 of the Regulatory Enforcement and Sanctions Act 2008 should be used as the model for a new regime of civil sanctions for wildlife law.
Disagree – please see comments at 9-2 below
Provisional Proposal 9-2: We provisionally propose that the full range of civil sanctions (so far as is practicable) should be available for the wildlife offences contained in the reforms set out in Chapters 5 to 8 of this Consultation Paper.
We would object to this proposal. We are not convinced of the necessity for civil sanctions to be available in Badger Act or Deer Act offences. We are concerned about removing the protection that the court system gives to those accused of these offences who might be tempted to accept civil sanctions despite the merits of the case. We are not convinced that the availability of civil sanctions for other offences means that they should be available for Badger Act or Deer Act offences.
Provisional Proposal 9-3: We provisionally propose that the relevant regulator, currently Natural England and the relevant body in Wales (either the Countryside Council for Wales or the proposed new single Welsh Environmental Agency), issues guidance as to how they will use their civil sanctions.
In the event that civil sanctions are made available for wildlife offences the relevant bodies will have to produce written policies involving their use.
Question 9-4: Do consultees think that that the current sanctions for wildlife crime are sufficient?
Provisional Proposal 9-5: We provisionally propose that offences for wildlife, excluding those for invasive non-native species and poaching, should have their sanctions harmonised at 6 months or a level 5 fine (or both) on summary conviction.
Provisional Proposal 9-6: We provisionally propose that the poaching offences for wildlife should have their sanctions harmonised at four months or a level 4 fine (or both) on summary conviction.
We believe that in the interests of harmonisation and simplicity that poaching offences should have the same sanctions as 9-5 i.e. 6 months or a level 5 fine (or both) on summary conviction.
Question 9-7: Do consultees think that the provisions that mean that the fine for a single offence should be multiplied by the number of instances of that offence (such as killing a number of individual birds) should be kept?
We are of the view that the multiple instances provisions should not be kept. We are concerned that the provisions could lead to absurdity, in imposing stricter penalties for the killing of numerous species over rare species.
Question 9-8: Do consultees think that the provisions for such offences should be extended to cover all species?
We disagree with this proposal for the reasons set out at 9-7 above.
Question 9-9: Do consultees think that there should be a wildlife offence extending liability to a principal, such that an employer or someone exercising control over an individual could be liable to the same extent as the individual committing the underlying wildlife offence?
We are strongly opposed to this and think it is unnecessary. English law does not recognise vicarious criminal liability. We are of the view that there are sound and just reasons for this. Similarly English law does not criminalise people for failing to prevent other people from committing offences. It is our view that where an employer actively engages in a criminal offence or aids and abets a criminal offence, then they should face the full force of the law. In situations where there is no evidence of an employer actively engaging in an offence, or aiding and abetting it, then it should not be assumed that they had anything to do with the offence whatsoever. We also think that it is far too early to consider emulating the position in Scottish law when we have not had time to consider its effects in practice.
Provisional Proposal 10-1: We provisionally propose that the appropriate appeals forum for appeals against Species Control Orders and civil sanctions under our new regime is the First-tier Tribunal (Environment)?
As the consultation document points out the First-tier Tribunal (Environment) has yet to hear a case. It is very difficult, therefore, to form the view that it would be an appropriate body to hear appeals against species control orders and civil sanctions. Given that civil sanctions will be imposed for actions that would otherwise amount to criminal offences we take the view that the appropriate body to hear appeals would be the Magistrates Court. This would be a similar position to appeals against abatement notices and other statutory notices issued by local authorities and other government agencies for environmental offences at the moment.
Question 10-2: Do consultees think that it is unnecessary to create a new appeals process for wildlife licences (option 1)?
We believe that it is necessary to create a new appeals process for wildlife licences.
Question 10-3: If consultees think that there should be a dedicated appeals process for wildlife licences, should it be restricted to the initial applicant for the wildlife licence (option 2), or be open additionally to the public with a “sufficient interest” (option 3)?
We think that the appeals process should be restricted to the initial applicant. We would support option 2. We are concerned that option 3 would enable political pressure groups to create unnecessary litigation in straightforward cases as a tactic towards the ultimate aim of preventing the killing of wild animals under any circumstances. In the event that a licence is granted on grounds that are illegal, irrational or procedurally improper then such groups already have the opportunity to take judicial review. The recent badger licensing decisions show that groups with sufficient interest are willing and able to take the judicial review route. We do not think that the appeals process should be bogged down in the sort of cases that would be brought if outside parties could appeal licensing decisions.
Question 10-4: Do consultees think that the appeal process should be available for all types of wildlife licence (general, class and individual)?
Question 10-5: Do consultees think that it would be more appropriate for appeals concerning wildlife licences to go to the Planning Inspectorate or the First-tier Tribunal (Environment)?
As the First-tier Tribunal (Environment) has yet to hear a case regarding its own current jurisdiction it is very difficult to form the view that it is the most appropriate forum to hear appeals concerning wildlife licences. We do not take the view that the Planning Inspectorate is the right tribunal for such a decision making process. We are inclined to the view that the Magistrates Court sitting in its civil jurisdiction would be the appropriate tribunal.