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.
On leaving the European Union we will have an opportunity to think afresh about the laws protecting wildlife. Not before time: many of our laws are doing more harm than good, or getting in the way of improving biodiversity. We should be guided entirely by pragmatic considerations, not blind principle and the vested interests that dominate the debate today.
As a general rule, in British common law it has been the tradition that if something is not forbidden it is allowed; European civil law generally assumes that if something is not specifically permitted it must be illegal. To take a wildlife example: Britain enacted laws specifically to protect badgers and birds of prey. Recently, however, we have imposed regulations specifically to exempt invasive parakeets from protection: but when were they specifically protected in the first place?
One especially harmful example of a wildlife law imposed by the European Union is the protection of great crested newts. These delightful, yellow-bellied beasts are common through this country. You find them in every part of England, and in much of much of Wales and Scotland. They are scarcer on the continent, however, which accounts for their special status as a “European protected species”, since 1994, meaning that you can go to prison for six months for harming them. Because they are widespread, developers have to go to great lengths to ensure that any newt living on or near their development is excluded or rescued before the bulldozers move in.
As I have reported elsewhere, there are about 1,200 licences issued each year to fence newts out of development sites and then trap those inside and remove them to safety, though they hate being moved and often don’t survive. Such fencing and trapping directly costs business about £60 million a year. The actual cost is much higher if you add in the delays that newts regularly cause, because a developer must trap newts on a development site for at least 30 days after the newt-exclusion fence goes in and then for five clear days of zero catches, which might take weeks or months to achieve.
Green pressure groups therefore see newts, precisely because they are so common, as a useful weapon to stop people building things. Some even smuggle them on to sites. The government is often taken to court both domestically and in Europe by people in the green movement who have too much money and not enough to do, for not being zealous enough in enforcing the law on newts. There’s a thriving industry selling developers fences lined with heavy plastic sheets partly buried in the ground to prevent newts entering sites. The fences can be miles in length and are often cruel barriers to the movement of wildlife.
Fortunately, common sense is starting to prevail and Natural England, the newt regulator, has now switched to a simpler system in which developers create newt habitat elsewhere as compensation for destroying a pond that was going to be destroyed anyway. This will produce far better results for newts, and people. But it has had to tread carefully for fear of falling foul of the European directive. Similar nonsense disfigures our relationship with bats, whose automatically protected status has given rise to a thriving industry of bat surveyors very unwilling to give up their lucrative livelihood by accepting reform in which bat roosts are specially built so that churches can be protected against the effect of bat urine on brasses, and home owners can add extensions without severe bat-induced delays.
Britain’s laws protecting wildlife were first invented to help landowners prosecute poachers and maintain their sport, rather than to help wildlife. That is why there are closed seasons for grouse, deer and partridges. Later, protection was extended to some species for reasons of welfare (badgers) or conservation (birds of prey). Others remained completely unprotected at all times as “vermin” in order to protect game (crows, stoats), livestock (foxes), or crops (pigeons, rabbits). Recently it became possible to get a licence to kill certain species in limited numbers (cormorants, gulls) to help other wildlife.
Frankly, the system is a bit of a mess and badly out of date in certain respects. For example, why should it be completely legal for a farmer to kill a fox at any time of year and completely illegal to kill a badger? Why should it be legal for him to kill a carrion crow to protect his lambs, but not a raven? A stoat but not a pine marten? A salmon but not a seal? A pigeon but not a gull?
Foxes, badgers, crows, ravens and gulls are all thriving as never before today, not because of legal protection but because they benefit from human interference in ecology. We keep them alive by providing abundant food especially in the winter when their numbers would normally collapse: road-kill, land-fill, agricultural crops, cow-pats and more. In the case of foxes and badgers, we have also killed off their natural enemies, such as wolves and lynx, a phenomenon known as the “mesopredator release effect”, whereby middle-sized, general-purpose predators thrive to the detriment of some of their prey.
This means that conservationists need to be in the business of managing mesopredator populations. You cannot have hedgehogs if badger numbers are high: this has been proven by a huge range of evidence: experimental, historical, geographical, observational. That’s why hedgehogs have largely retreated to suburbia, where badgers have not (yet) followed them.
Likewise, you cannot have breeding curlews if foxes are abundant; the foxes get the nests or chicks every time. You cannot have song thrushes if magpies are abundant; you cannot have puffins if herring and lesser black-back gulls are unchecked; you cannot have water voles if mink are present; you cannot have fish if cormorants are numerous; you cannot have partridges if buzzards are abundant, and you cannot have red or black grouse if hen harriers are common. Our laws were mostly drawn up at a time when predators were rare because of the attentions of Victorian gamekeepers followed by the effect of DDT in the 1950s. Now we live in a world of rebounding predator numbers and the species we are losing – such as curlews – are the prey species.
A specific example might to help make this issue clear. About 20 years ago, desert tortoises in the Mojave Desert in southern California suddenly began to decline alarmingly. Conservationists realised that ravens were the cause: they were eating young tortoises and there were far more ravens than there used to be. The reason? A landfill site had opened near the desert, fuelling a raven population boom. The spread of housing developments, with attendant trash, had not helped. Everywhere you go in the world you find that conservationists are realising that they need to control the “wrong” species to help the “right” ones, just as gamekeepers and farmers have argued for decades.
Pragmatism, not dogmatism, is what is needed. The trouble is, dogmatism is very lucrative for some organisations. The Royal Society for the Protection of Birds makes a big fuss about wildlife crime, raising money on the back of accusations against landowners about the killing of birds of prey, but itself uses predator control on most of its reserves, killing foxes, crows, gulls and other species if necessary. This is hypocrisy.
After Brexit, the law should be changed to find pragmatic and effective solutions to wildlife problems so as to achieve balanced biodiversity, rather than just rewarding green pressure groups. After all, crows, pigeons and foxes are wholly unprotected at all times, and they are all thriving as never before, so it si entirely possible to have less protection without extinction. Many landowners would gladly provide sanctuaries for rare species, especially if they knew that they could reduce their numbers if they became a problem, and especially if they were rewarded for it. One of the reasons so many landowners hate the idea of reintroduced beavers and lynx is that they know that such species will be fully protected, so if they do damage there is nothing they can do about it.
When I was young, Northumberland – where I live – had no ospreys, very few buzzards, almost no otters, and far fewer peregrine falcons, herons, goosanders, deer, badgers and seals. The recovery of such species is not a result of legal protection nearly as much as it is the result of the removal of DDT from farming, plus the migration of people out of the countryside so they do not bother the wildlife as much. But by far the richest habitats for wildlife in this county are the ones that are managed: the offshore islands managed for seabirds, and the grouse moors managed for red grouse, but acting as vital breeding sanctuaries for curlews, golden plover, lapwings and black grouse as well.
Wildlife laws should be reformed to allow for the management of any and all species in the interests of biodiversity.
Matt Ridley is best known for his writings on science, the environment, and economics. He currently writes a weekly column in The Times and has written a number of books including, The Red Queen (1994); Genome (1999); The Rational Optimist (2010) and most recently The Evolution of Everything (2015). As Viscount Ridley, he was elected to the House of Lords in February 2013 and has served on the Science and Technology Select Committee. In addition, he is a fellow of the Royal Society of Literature and of the Academy of Medical Sciences.