The Alliance was at the Conservative conference in Manchester this week and we were grateful to the Defra Secretary George Eustice for speaking at our reception on Wednesday night. It was particularly pleasing to hear him announce a review of the Habitats Regulations which transferred the Habitats Directive and Wild Birds Directives from EU law.
These regulations have been at the heart of any number of Judicial Reviews in recent years, including that which saw the temporary withdrawal of General Licences for the control of avian pest species, and the implementation of interim licences for the release of pheasants and partridges on or near protected areas. As we have long pointed out, the shifting interpretation of the EU Directives by the courts has created constantly moving goal posts for the Government and those involved in wildlife management. An obvious example is the General Licence for controlling species like wood pigeons which are doing serious damage to crops. Over the decades the licence has ballooned to 11 pages of conditions and guidance, whilst the underlying directives have not changed at all.
It goes without saying that the Habitats Regulations need to fulfil their primary function of protecting the most important habitats and species. What has become clear in recent years, however, is that shifting legal interpretation and especially the continued uncertainty about the application of the ‘precautionary principle’ - which suggests that where there are threats of serious or irreversible environmental damage, a lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental damage - has created an open door to judicial activism. The lack of clarity and consistency of the definition of the precautionary principle has led to a situation where a lack of evidence in itself can be interpreted as a threat of environmental damage. In essence, people carrying out activities that others allege could be doing damage are being asked to prove a negative – that they are not doing harm – and if they cannot, the precautionary principle is applied and the activity prohibited.
The same precautionary principle is rarely, however, applied in reverse. For instance, all gull species have been removed from the conservation General Licence because it cannot be proved that culling those gulls is not having an impact on the overall population of the species. Yet, there is no evidence either that the removal of the licence to cull gulls will not have a serious impact on red-listed birds such as the curlew whose nests they predate. Why should the precautionary principle apply to the still numerous lesser black-backed gull, but not to the increasingly rare curlew?
Any suggestion of changes to the Habitats Regulations will bring loud protestations from parts of the environmental movement. It should be clear, however, that what the Alliance is asking would in no way compromise the protection of protected areas, and rightly no government would contemplate such a move. What we seek is consistent protections, which allow the management and activities which have created and maintained those special areas to continue without the threat of constant legal challenge. And those who loudly oppose any changes to the regulations should note that it is the groups such as Chris Packham’s vehicle Wild Justice that have used the courts to pursue their ideological campaigns that have made this review so necessary.