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Where Next For Wildlife Law? – Tim Baynes, Scottish Land and Estates

December 12th, 2017

Wildlife Law: The Big Conversation – Get involved

In light of our decision to leave the European Union the Countryside Alliance is asking the question ‘Where next for nature?’. We have invited contributions from individuals and organisations from a range of backgrounds who have a wealth of experience and knowledge of the countryside and wildlife to help inform and stimulate this important debate. Read the full collection of essays here.

Tim Baynes

Let’s start with the big picture. Wildlife laws are an important and necessary part of our society. As in many areas of life, the government seeks to find the appropriate balance between public and private interests. Where the actions of individuals could have a negative impact on wildlife or the wider environment—and so on wider society—the government intervenes in various ways to protect the public interest. It does so by creating laws and regulatory frameworks that prevent environmental bads like pollution or harm to biodiversity and imposes penalties for infringements of those laws. This is entirely appropriate and in the UK we have strong wildlife and environmental legislation which has been bolstered by our membership of the European Union.

Looked at in this way, there are few that would argue that wildlife laws should be removed. Wildlife laws have in some instances been a great success; they are a good thing and should be retained. To be sure, we still face very challenging declines in biodiversity, with regard to which there is an ever increasing need for collective action to halt those declines, but our wildlife laws provide an important backstop for our nation’s wildlife.

Where the differences of opinion arise is more around the operation of the law. For some land managers, the structures we have put in place to protect wildlife can feel overly restrictive or rigid and it is because of this rigidity that there are calls for change. Part of this rigidity is ‘structural’. For example, once a species is protected it seems to remain protected even if it subsequently becomes abundant in certain places, perhaps even so abundant as to cause problems for land managers. But part of the rigidity could also be ‘cultural’ in that powers may already exist to deal with changes in species abundance, but such mechanisms are rarely if ever used because to do so would be highly contentious.

So if wildlife laws are an attempt by the government to find the appropriate balance between public and private interests, from the perspective of some land managers the legislative framework that we have put in place sometimes fails to find that balance. This is because things can change on the ground fairly rapidly but legislative regimes are usually slow to change. The issue is a practical one. Some land managers are keen to see change in wildlife law, not because they want to do away with wildlife law per se, but because their experience of the law leads them to question whether we have the right approach.

It is probably important to be honest here and acknowledge that it is always likely to be the case that those subject to the strictures of the law will feel somewhat aggrieved, and that this situation is no different. But that does not mean that the concerns of land managers should be summarily dismissed or seen as the moans of those that want to harm wildlife. It is not the case that those that want to see change only want change so that they can do what they want at the expense of wildlife. The vast majority of land managers do care for wildlife, and many care passionately. The issue is more about finding the right balance between the public and private interest and the question being raised is whether there is enough flexibility to allow the appropriate balance to be found in a changing world.

Our departure from the EU is clearly a pivotal moment in our nation’s history and as powers, including those relating to wildlife protection, are repatriated from Brussels there could be an opportunity to rethink our wildlife laws. Scottish Land & Estates does not, however, argue for drastic change as powers return. While we do believe that wildlife law could be usefully changed, we are also very aware of the size of the task involved in Brexit and of the need for businesses to have certainty with regard to the legislative frameworks they are operating within. That is why we have supported a phased approach that would see all relevant EU law brought within domestic law (whilst respecting the devolution settlements) with a subsequent process to think differently about how we deliver the outcomes across all the regulations governing farming, land management and running rural businesses. There is an opportunity to think again about how we protect wildlife but it needs to be done in a measured way and not rushed by the pressures of Brexit.

When we do get to the debate about the future of wildlife law our main issue is likely to be around flexibility. We do not want to see a bonfire of regulation however attractive that might sound to some. Where there are opportunities to streamline regulation without undermining the efficacy of the law, then these should be taken, but it is important to remember that wildlife law has an important function to perform. Our interest is more about how the legislation can be sufficiently flexible so as to allow adaptive management on the ground. The sorts of issues that get raised with us relate to once scarce predators becoming abundant and presenting new challenges for land managers. These once scarce but now abundant species remain protected which makes the principle of adaptive management very difficult. There are mechanisms that would allow adaptive management in this situation under the current law i.e. through the granting of licenses by the regulatory body, but that needs a proactive decision by government which can be open to legal challenge and successive governments have been reluctant to venture in that direction.

In practice, the result is an inflexible system that frustrates land managers. Clearly, having frustrated land managers isn’t, in and of itself, reason to change wildlife law, but it does suggest that something may not be working as well as it could. We collectively face difficult species management challenges, but collectively we have the knowledge to deal with them. The problem from the land manager’s perspective is that the system makes that very difficult to do in practice. Indeed we might go further to suggest that the nature of the wildlife protection regime results in conflicts which play a part in poisoning all sorts of other relationships, for example between land management and environmental interests, which should be more constructive. If we want to make real progress in halting the decline in biodiversity and in actually enhancing biodiversity across our landscapes then we need these interests to be working together, not continually fighting each other. Perhaps the opportunity to look again at wildlife law, presented by Brexit, could actually be an opportunity to attempt to reset those relationships so that we can collectively work together to achieve better outcomes for all.

Tim Baynes

Tim Baynes is Director of the Scottish Land & Estates Moorland Group. He primarily represents grouse moors, but his role also covers a range of related upland sporting and conservation issues. He was closely involved in the setting up of Wildlife Estates Scotland and is on the Moorland Forum and other stakeholder bodies. Mr. Baynes was formerly a chartered surveyor, farmer, and forestry investment specialist.

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