In a report published on Tuesday 10 November the Law Commission recommends reforms to modernise and simplify the law regulating wildlife and create a flexible legal framework for the future.
The current law regulating wildlife is spread over a collection of Acts dating back to 1831. The original purpose of much of the law was to govern activities such as hunting and fishing, including poaching. Over the years it has expanded to conserve species, ensure the welfare of wildlife and protect local biodiversity.
Much of the older legislation is out of step with modern requirements, and there is duplication between the principal modern Act – the Wildlife and Countryside Act 1981 – and Regulations made with a view to implementing EU law obligations. The result is a legal landscape that is out of date, confused and sometimes contradictory.
In its report, the Commission is recommending that the patchwork of existing legislation be replaced by a single statute. The new statute brings together the law governing the protection, control and management of wildlife to make it more consistent, easier to understand and simpler to use.
Reflecting relevant EU directives and international conventions as well as national wildlife policy, the statute provides a regulatory framework organised around schedules listing protected and controlled species and prohibited conduct.
Existing protections for wild animals, birds and plants are maintained but a statutory procedure for amending the schedules is introduced, allowing for more strategic management of species. The existing requirement for protected species lists to be reviewed every five years is extended to include all relevant lists. Ministers retain the power to make changes between reviews but they will be required to publish their reasons if they do not follow expert advice.
The Commission’s recommended reforms reduce the current dependency on criminal law by allowing an appropriate mix of regulatory measures such as guidance, advice and a varied and flexible system of civil sanctions. But the penalty for the most serious wildlife crimes will be extended from six months to two years in prison.
Nicholas Paines QC, Law Commissioner for public law, said: “Our reforms sweep away the confused and contradictory patchwork of existing legislation to provide a balance between the needs of the people who manage wildlife and those who want to protect it.
“We are recommending a modern, flexible regulatory framework that will allow for the strategic, long-term management of wild animals, birds and plants and their habitats. What we are recommending does not alter the levels of protection currently offered to wildlife but it will help people understand what their obligations and duties are in respect of wildlife, what they can and cannot do, and what to expect should they break the rules.”
The Law Commission is a non-political independent body, set up by Parliament in 1965 to keep all the law of England and Wales under review, and to recommend reform where it is needed.
CLA President Henry Robinson has responded to the Law Commission’s final report on wildlife laws, published today, which includes a draft for a new Wildlife Bill to consolidate existing legislation.
Mr Robinson said: “We welcome the Law Commission’s review of our wildlife laws. This is a significant step towards delivering a clear and comprehensive body of law based on a coherent mix of guidance, fines and civil sanctions.
There is still work to be done to ensure that our laws are fair and consistent with EU Law and international conventions and the CLA will play a full and constructive part in ensuring that this initiative puts an end to the piecemeal approach that continues to cause confusion for Estate and Land Managers.”
Mr Robinson continued: “We welcome improvements to the laws against poaching, but we are concerned that the proposals give significant powers to the Minister to increase the number of species that are regulated and to amend close seasons.
There must be sufficient checks and balances to ensure these powers are exercised appropriately. The failure to introduce a mechanism to review the refusal of a licence to control species is also disappointing and will reduce the perception of fairness in how the legislation is delivered.
“We are pleased that the Law Commission agreed with our arguments against the proposal to create an offence of vicarious liability – which holds an employer automatically responsible for the acts of his staff. We agree that making it an offence for an employer “knowingly to cause or permit” their staff to commit a wildlife crime is a better approach.
However the repeal of the “incidental result” defence which ensures land managers do not inadvertently break the law – for example when taking lawful action to control a species but inadvertently causing the death of a controlled species as a result – will cause confusion and risk of spurious prosecutions.”
