Unnatural habitats: Wild Justice's abuse of the 'precautionary principle'

Adrian Blackmore, Countryside Alliance Director of Shooting, examines Wild Justice's abuse of the 'precautionary principle' in this article from the winter issue of My Countryside magazine.

The suspension of General Licences, tightening heather burning regulations, restrictions on releasing gamebirds within and adjacent to protected sites in England…This is a list of just some of the issues that the shooting world has been forced to battle with over the past three years, thanks in part to Wild Justice and their tactic of legally challenging the government in order to advance an anti-shooting agenda. Chris Packham, Mark Avery and Ruth Tingay, through their campaigning vehicle Wild Justice, have mined a rich legal seam, exploiting the lack of clarity around the interpretation of both the European Union's Wild Birds and Habitats Directives, and the application of the 'precautionary principle'. Our departure from the European Union (EU) has not improved matters, because the legal framework, including the Habitats Regulations which gives effect to the Directives, remains unchanged.

What exactly is it within these Directives, and the Habitats Regulations, that is so easily exploited by our opponents? In a wide array of court cases there have been differing interpretations of elements of the EU Directives, which means there is a lack of clarity and certainty for the government, licensing authorities, and those involved in wildlife management. Instead, there are ever shifting goal posts. With the passage of time there has also been a substantive shift in the understanding and application of the 'precautionary principle'. Properly applied, the precautionary principle means that where an activity, or change in activity, could have a serious or irreversible effect on the natural environment, the absence of absolute scientific certainty should not prevent action being taken to prevent environmental harm. In essence, as originally understood, there was a proper analysis of risk based on whether the harm that was possible was serious and irreversible. It was a sensible and pragmatic approach. However, Wild Justice has exploited the lack of clarity as to the precautionary principle and the absence of any statutory definition to attack shooting and its associated wildlife management, at a cost to the environment and the livelihoods of many in our rural communities. They have argued, absurdly, that any activity should be assessed for its potential damage to the environment, not just before it takes place but also in order to be allowed to continue, even if it has been happening for centuries. They have argued that unless there is clear scientific evidence, in the form of peer reviewed research, that an activity is not causing harm then it should stop immediately, and only be able to resume once such evidence is available. Ironically, when applications have been made to conduct research to demonstrate that an existing activity, for which no evidence of serious or irreversible harm has been detected, such applications have been turned down on the basis of the precautionary principle. This is clearly complete nonsense, as it prevents necessary research, harms the environment, and if applied, as a fair application of the law would suggest, it would bring to a halt many aspects of everyday life. It would not just be shooting that would be under scrutiny, but access by the public for walking, exercising dogs and any number of other activities on land over which shooting takes place.

The disastrous consequences of the way in which the law is currently open to being weaponised results in government policy and the decisions of licensing authorities being driven more by the fear of legal challenges than delivering conservation. In terms of wildlife management, the implications can be disastrous. The approach to gull control is a classic example. All gulls have been removed from the General Licence for Conservation (GL40), because it cannot be proved that culling gulls does not have a negative impact on the overall gull population. Yet the same precautionary approach is not applied in reverse. Not only is there no evidence that General Licences are a risk to the gull population, there is also no evidence that the removal of gulls from general licences will not have a serious impact on red-listed birds such as the curlew on 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, a species of highest conservation concern? This situation is not unique and a thorough review of the Habitats Regulations, and the way we manage wildlife and balance competing interests and priorities, is long overdue. Brexit provides this country with a unique opportunity to go back to first principles and to come up with a system that is fit for purpose, gives real effect to the intentions of the Birds and Habitats Directives, and applies the precautionary principle in the way in which it was intended to be applied, and not as a weapon for destructive protectionism.

It was thus very welcome to hear the Secretary of State for the Environment, George Eustice MP, use the Alliance's reception at this year's Conservative Party Conference to highlight that the government is undertaking a review of the Habitats Regulations. He clearly recognises the need to move away from a system that has become all about litigation, and do things differently by adding the clarity and certainty that is currently missing. He wants policy that is based on evidence and science; policy that is decided by politicians based on that evidence and science, and not driven by those with an agenda of their own.

Reviewing the EU Directives has been a central ask of the Alliance since we knew the result of the Brexit referendum five years ago. There have always been ways in which the increasingly burdensome and bureaucratic approach to the environment and wildlife could be improved, one example being the General Licence for controlling species like wood pigeons to prevent damage to crops. But over the decades General Licences, once two pages in length, have ballooned to over 11 pages of conditions and guidance, whilst the underlying Directives have not changed at all.

Any steps the government takes to sort this situation out will inevitably be vociferously decried by large parts of the environmental movement, but this opportunity to ensure that the Habitats Regulations fulfil their primary function of protecting the most important habitats and species is one that we cannot afford to miss. It will also hopefully see an end to policy being driven by judicial activism on the part of those who seem unconcerned by the consequences of their actions for our environment, wildlife, and biodiversity. It is ironic that thanks to Wild Justice, the government has finally accepted the need for reform. The question remains whether the government has the political will to deliver a better system that delivers for wildlife and communities.