A New Environment Act
When it was first enacted, the law relating to night time poaching offences included a provision that, after a third offence, a poacher “shall be liable… to be transported beyond seas for seven years, or to be imprisoned and kept to hard labour in the common gaol or house of correction”.
These days the penalties relating to wildlife crime are somewhat less severe. Yet parts of the Night Poaching Act 1828 are still in force, forming part of the colourful conglomeration of laws that govern the way we manage the British countryside. After a 200 year history, the law is a layered affair of devolved, national, European and international commitments.
Such a farrago is often confusing, contradictory or bizarre. One consequence of 2015 attempts to integrate EU invasive species law with the UK’s Wildlife and Countryside Act 1981 was almost to define barn owls and red kites as non-native species. A more serious side-effect is that the law is often out-dated. In some cases, species protection fails to reflect conservation realities and—in contrast to the threat of hard labour—penalties for wildlife crime can be weak and poorly enforced.
The gaps and contradictions are a cradle for conflict. It is the grey areas where different interest groups often find themselves caught up in disagreements. For example, an ad hoc approach to data collection means that species population information is often collected by one set of volunteers, while bag data for numbers of birds shot is collected and collated on a voluntary basis by another group of people. This makes scientific comparison difficult and neither data set is properly linked to licensing for the numbers of birds shot, making the system very unresponsive to conservation concerns and heightening tensions between different interest groups.
So, wildlife rules are ready for review. This was recognised by the Law Commission’s analysis of wildlife law, which reported in 2015. However, wildlife law is itself a component of a wider body of environmental law. The Law Commission’s work did not consider habitat protection, for example, or rules relating to natural capital accounting and planning.
The possibility of Brexit offers the possibility of reviewing the detail of wildlife law, but also for setting it within a new framework of environmental protection and improvement.
The first component of an effective framework would be legally-binding objectives to set a trajectory for improvement. Today, we have many environmental targets in place, but they are often “soft” targets, with no consequences for failure and no link to policy or funding. A new Environment Act should set substantive targets for air, water and wildlife should chart a course toward a greener future. They should combine an intuitive set of headline goals—is the air we breathe safer? are our waters healthier?—with a more detailed suite of objectives that build on the many targets we have inherited from the EU, like the Water Framework Directive’s goal of good ecological condition.
Crucially, the headline objectives should be linked to sector-based objectives for cleaning up key industries. This will help to drive demand for private sector investment and contribute to the second key component of a new legal framework: financial mechanisms.
Natural capital investment in the UK is chronically under-funded, with natural assets like floodplains or carbon sinks depreciating every year. A future framework Act should combine large-scale public funding for nature with new markets for private innovation and investment. At the very least, the Treasury should match the £3bn of investment in the UK’s farmed environment that we receive through the Common Agricultural Policy, redirecting funding toward the most ecologically efficient choices. The oft-promised contribution of green finance can be stimulated by a new commitment to polluter-pays obligations (such as net-gain requirements for developers), combined with new catchment-level responsibilities for spatial planning for nature, which can inform long-term contracts in better land management.
This will help farmers to diversify their income base and to increase the resilience of their natural asset base, such as soils. So, for example, in a catchment where there is potential for farmers to invest in riparian wetlands to reduce soil run-off and improve water quality, today the options are limited by a poorly-targeted menu of CAP options and by payments limited to cost-recovery. An Environment Act should put in place the financial structures to direct long-term public contracts, reinforced by private investment, to make ecological enhancement a rewarding part of a productive farm business.
Of course, post-Brexit we may lose the independent prosecutorial role of the European Commission and Courts and the guiding hand of the principles of environmental law set out in the Lisbon Treaty, like the precautionary and polluter pays principles. A future framework will require primary legislation to create new UK institutions and empower existing institutions to fulfil those functions with the appropriate expertise, independence and powers to give expert advice and hold Government, businesses and individuals to account.
Together, these framework provisions—objectives, investment, and governance—should guide a future improvements to particular areas of law and policy (including wildlife) along a more integrated, rational path.
So, for example, we may be able to revisit the question of the more sustainable management of hunted species, adjusting species protection and quarry lists in the light of more rigorous methods of data collection and analysis. To illustrate with one species, Common Pochard numbers are in serious decline, yet we have no accurate information on how many are shot in the UK. Surely we can agree new ways to fill knowledge gaps and update permissions accordingly. At the same time, though, financial incentives could encourage better water and wetland management to reduce the proliferation of algae and weeds that prevent the ducks from feeding, while measures to prevent the spread of invasive species like American mink could help guard against predation. Aligning policy action behind common goals can help find the most effective ways to solve a problem.
In this way, real benefits will emerge if a new Environment Act can drive action across Government.
To take another example, EU targets to improve the ecological condition of our rivers and streams are not strong or integrated enough with key policy levers like planning, transport and fiscal policy. As a result, contributing factors like toxic run-off from impermeable surfaces remain outside DEFRAs influence, and key tools to help change behaviour (like taxes and subsidies) are not aligned to green goals. A powerful Environment Act could help to line up a thousand smaller decisions, obliging all Departments to work together toward water quality improvements, such as increasing the use of sustainable drainage in the forthcoming planning review, or structuring new farm payments to support new water treatment wetlands. Together, these individual actions across Government could add up to a big environmental improvement.
No doubt, in another 200 years’ time, the laws we write to fill the Brexit gap will also look bizarre. How—the people of the future may ask—could we abide a system that did not pay moorland managers handsomely for carbon storage and water quality? How could we get by on species protection and housing development without proper tools for mapping and spatial planning for ecosystems, rather than single-species measures? How could we get by with a public health system with no influence over causes of chronic disease, such as filthy air or lack of access to nature?
However, by legislating in this Parliament—introducing an Environment Bill in 2018—the Government can establish a new framework for improvement. With the right milestones, money and monitoring guaranteed in law we may not be able to tell which particular policies will survive the test of time, but we can have a better idea of what that future will look like: a greener UK.
Dr Richard Benwell
Dr. Benwell is currently Head of Government Affairs at the Wildfowl & Wetlands Trust and helps ensure policy-makers are as environmentally positive as possible. Dr. Benwell has also worked as Parliamentary Programme Manager at the RSPB with a particular focus on advocacy for a Nature and Wellbeing Act. Dr. Benwell is Director of Westmill Solar Cooperative, a community-owned renewable energy development which seeks to help local people play a part in the UK’s clean-energy transition in a way that enhances the natural environment.