Wildlife and Countryside Act 1981: Review of Part 1
March 2005
Introduction
The National Gamekeepers' Organisation (NGO) was pleased to be consulted by Defra officials working on the review of Part I of the Wildlife and Countryside Act 1981 (WLCA).
In this response we also comment on the concurrent Defra review of Schedules 5 and 8, and also on separate proposals to include certain measures within the Natural Environment and Rural Communities (NERC) Bill.
For the record, the NGO was founded in 1997 and now has over 9,000 members. It represents the gamekeeping profession in England and Wales. More details about the organisation can be found on our website: http://www.nationalgamekeepers.org.uk/
General Points:
1. The WLCA is the basis of around half the legislation governing the activities of gamekeepers. It includes bird and mammal protection measures, open and close seasons, regulations on traps and snares, specific rules on methods of killing and taking wild animals and other measures on habitat management. What gamekeepers say is therefore important and we hope it will be given due weight when Defra assesses all the responses to its consultation paper.
We would like to start by reminding Defra that had it paid more attention last year to the NGO response to the pre-consultation on General Licences for the control of pest birds, considerable time, effort and recent embarrassment to the Government could have been avoided. We offered then to meet with officials to discuss the issues face to face. That offer was declined. We make the same offer here and we hope that this time it will be taken up.
2. The Government has pledged in its manifesto and in many subsequent statements by the Prime Minister and by other Ministers not to restrict shooting in any way.
3. The Rural White Paper for England, said that the current review would be undertaken "with a view to rationalizing the identification and protection of rare and endangered species". The emphasis is ours.
4. The primary aim of the review (page 6 of the consultation document) states that it is "to ensure that this legislation remains relevant for the 21st century, that is correctly targeted and that it does not impose unnecessary controls on people's activities."
5. In the fourth paragraph of the same section, the consultation document states: "The Act appears to generally work well and it is not our intention to introduce changes unless there are compelling conservation reasons for doing so." Again, the emphases are ours.
6. We welcome these intentions and in general believe the consultation document to be true to them. We have pointed out below where we think the proposals have departed from the stated principles. More importantly, should others urge that the current proposals do not go far enough, we urge Defra to stick firm to the Government's principles.
7. Under the ‘Next Steps' section of its consultation (page 8), Defra stated (in line with Cabinet Office requirements) that the consultation period was 12 weeks (ending 24 March 2005), and that, "Once all the responses have been received we will consider how best to take forward each of our proposals."
We were therefore amazed to receive on 10 February 2005 a letter from Oona Muirhead, Director of the ‘Modernising Rural Delivery Programme', saying that five of the proposals in the WLCA consultation had already been incorporated in the draft NERC Bill laid before Parliament that day, six weeks before the WLCA consultation had even closed. If this is Modern Rural Delivery, please can we have something else! The move has broken all the Government's own consultation rules and we are deeply unhappy with it. This sort of piecemeal legislation without proper consultation is exactly what we should all be trying to avoid.
Specific Comments
The National Gamekeepers' Organisation makes the following specific comments on the areas mentioned in the Defra consultation document. They appear here in the same order that they are covered in the Defra document and the sub-headings quoted are those used in the consultation paper. Where a sub-head in the document has been left out below, it can be assumed we have no comment to make on that aspect of the consultation.
Part 2
Proposal A: to retain the use of Schedules to list the species to which individual provisions apply, and to introduce a requirement for all the Schedules to be reviewed on a regular basis.
The NGO supports the concept of regular review of the protection schedules for animals and plants. Such reviews must always be based on the best available science, rather than emotion. They must also be open, transparent and involve people, such as gamekeepers, whose livelihoods might be affected.
We would like to see more species that have become too numerous coming off the protection schedules, rather than always the other way round
Section 1: Killing, taking and keeping of wild birds
Proposal B: to amend s.1(6) so that in s.1 the definition of "wild bird" does not include any bird which is shown to have been bred in captivity, except where it has been released as part of a re-introduction programme.
Whilst we are in sympathy with the intentions of this change, it needs to be worded with great care. The new definition of ‘wild bird' excludes ‘any game bird'. However, ducks (which are not ‘game') are often released to supplement wild stocks before the shooting season. We need to be able to shoot them. Please ensure that this is taken into account.
Proposal C: to create a new Schedule of bird species, whose nests are protected on a year round basis; the Schedule to include the Golden eagle and Osprey.
Whilst we have no problem with the aim of protecting the nests of these two particular species, we are concerned that doing so by creating a new schedule leaves this wide open to the addition of other species, protection of the nests of which would cause us problems. We would prefer for the nest sites of Golden eagle and Osprey to be protected under the existing SSSI legislation designed for site safeguard.
Proposal D: to pursue discussions with colleagues in the Home Office on the basis of extending the term "reckless" to s.9(1) , 9 (2) and 13 (1) offences, in other words in relation to species listed in Schedules 1, 5 and 8.
These are areas of detailed law on which gamekeepers are not really qualified to comment. Our basic understanding, however, is that Option 2 is to be preferred. The Country Land and Business Association and the Moorland Association, both of whom have staff with legal qualifications, have made detailed comments on proposal D and we would ask Defra, please, to give these careful attention.
Section 3: Areas of Special Protection
Proposal E: to retain s.3 in its current form.
We would be happy for Areas of Special Protection to be scrapped. There are only a handful of them and achieving the same result via SSSI status would be simpler.
Section 4: Defences and Licensing
Proposal F : that codes of practice are developed with stakeholder industries
It is certainly right that if codes of practice are to be written then this needs to be done with those likely to be affected. The NGO offers Defra its help in this area. Such Codes need to be non-statutory, the following of them tending to support a legal defence and the breach of them tending to support a prosecution.
Section 5: Prohibition of certain methods of killing or taking wild birds
Comments are requested: is there any justification for adding other methods to the list in s. 5 (1)? If so, which methods should be considered.
We are not clear why this is mentioned in the consultation if Defra knows of nothing which is causing concern. It seems to be something of a ‘fishing expedition'. The Secretary of State has the power to amend the schedule of prohibited methods and he should not use it unless there is a compelling and generally agreed case for doing so.
Pesticides
Creation of a new offence of possession of certain listed pesticides. Comments are requested on the costs and benefits of extending the current offence of storage of an unapproved pesticide to possession of such a pesticide; and on the costs and benefits of introducing a new offence of possession of certain prohibited pesticides without legitimate reason.
This is one of the five proposals selected for ‘fast-tracking' under the NERC Bill and it is the one with which we have the greatest reservations. It is certainly wrong to describe it as having ‘widespread support' as the NERC Bill papers have done.
Whilst the NGO condemns the misuse of pesticides, and has always done so, the creation of a new offence of possession goes too far. Gamekeepers and others keep various pesticides for legitimate use from time to time. They may not have an immediate use for them at any one time, nor the ability to prove such a need to a court. Misuse of pesticides is already an offence. That is that malicious act which needs to be stopped. If it isn't being detected, then the detection procedures need to be beefed up, rather than changing the law to create a ‘more easily' policed offence which could lead to miscarriages of justice.
Section 6: Sale of live and dead birds
We agree that there is no need to change Section 6.
Section 7: Registration etc of certain captive birds
Proposal G: to rectify the error made in CRoW and amend s.7(3A) to include the offences under s.7(1)
We are happy that this oversight in the CROW Act should be corrected.
Section 8: Protection of captive birds
We agree that there is no need to change Section 8
Section 9: Protection of certain wild animals
Proposal H: To extend the provisions of s.9(2) and (5) to cover all Annex IV (a) animals, in order to make it an offence to possess or sell European protected animal species illegally taken from the wild in EU Member States
We support Proposal H.
Proposal I: To pursue the option of removing European Protected species from Schedule 5 to the Act at such a time when it is possible to introduce the custodial sentencing option for Habitats Regulations offences.
We agree that this would help to tidy up the legislation.
Section 10: Incidental result defence
Comments are requested on the advisability of introducing a similar amendment to that planned for the Habitats Regulations, should that amendment come into effect.
We agree that this too would help to tidy up the legislation.
Proposal J: to issue a general licence to allow the temporary taking of a Schedule 5 species in the living area of a house for the sole purpose of releasing it back into the wild at the same site.
We support Proposal J
Section 11: Methods of killing or taking wild animals
Proposal K: to make it an offence under s 11(1) to use any baited board, bird lime or substance of a like nature to kill or take any wild animal.
We agree that any device to which a live animal becomes stuck should be avoided but we urge caution in respect of the phrase ‘baited board'. Some mammal traps are baited and some include what might be described as a ‘board' in their design (eg the common mouse trap). Defra needs to be careful with the wording here to ensure that the right result is achieved and that legitimate trapping methods are not affected. This applies not only to trapping technologies available now, but also to anything that might come up in the way of positive trap development (eg. increased specificity through the use of baiting) in the future.
Snares and Traps
Proposal L: to amend s.11 (3) (b) to make it an offence whilst any snare or trap remains in position, to fail without reasonable excuse to inspect it or caused it to be inspected at least once every day at intervals of no more than 24 hours taking into account the stress tolerance of the animal, its vulnerability to the prevailing weather and access by predators.
The NGO has a seat on the Defra-commissioned Independent Working Group on the use of snares. Inspection times are being looked at by that group in detail. The group will report later this year and it would be wrong to press ahead with changes to the law before the group has reported and its findings have been given careful consideration.
There are serious problems that arise from a 24 hour inspection regime, namely the implied need to check a line of snares earlier each day. Please wait until the advice of your independent working group has reported on this matter. There are already problems in Scotland where they pressed ahead with such a change without adequate forethought.
Proposal M: to insert an additional sub clause to make it an offence for any person who while carrying out such an inspection finds an animal caught by the snare or trap being inspected fails to release or remove the animal whether alive or dead.
Whilst we support this proposal, we would again urge that it is not acted upon until the report of the Independent Working Group has been received.
Section 13: Protection of wild plants
Proposal N: to extend the provisions of s.13(2) to cover Annex IV(b) plants, in order to make it an offence to possess or sell European protected plants species illegally taken from the wild in EU Member States
We have no particular comment.
Proposal O: to extend the definition of wild plant to include fungi
Comments are requested on:
- Whether clarification of is required regarding whether the parts of a schedule 8 plant are fully protected under s.13(1) (a)
- Whether the commercial collection of some or all wild plants, and plants, and part of plants, should be prohibited
- Whether clarification is required in respect of the protection of plants during their dominant phase
Again, we have no particular comment other than to note in passing that it would be a pity if an individual (such as a gamekeeper, for example) lost the right to pick a few mushrooms, or to collect toadstools, on land where they were entitled to do so.
Comments are requested on the advisability of introducing a similar amendment to that planned for the Habitats Regulations, should that amendment come into effect.
We agree that this too would help to tidy up the legislation
Section16: General licences
The recent chaos surrounding the re-issue of the General Licences could have been avoided if Defra had taken proper heed of what we said in our response to the pre-consultation on this issue last year.
We repeat that the EU Birds Directive does not require an individual making use of the licence to show actual damage, whether to himself or another, nor that there is ‘no other satisfactory solution'.
We still have some minor reservations about the new General Licences (for example the 24 hour inspection regime - see ‘Snares and Traps' above).
If there is any intention to change them further we urge Defra officials to consult with all relevant stakeholders and not to assume that a quick check with one of us will suffice.
Sections 17 - 21: Enforcement related issues
Police powers of entry
Proposal P : it is not proposed to extend police powers to allow powers of entry where there is reasonable cause to suspect that an offence is about to be committed on the basis that we are not persuaded that it would be proportionate and reasonable.
We particularly welcome this.
Miscellaneous Issues
Strict liability for all offences under Part 1
Proposal Q: that a general application of strict liability is not pursued.
Again, we welcome this. There is no evidence to justify any change.
Crown immunity
Proposal R: to amend the Wildlife and Countryside Act 1981 so that its provisions apply to the Crown
We have no comment on this.
Consolidation of the 1981 Act and its subsequent amendments
Proposal S :that a consolidating Act is introduced at an appropriate juncture
A consolidation of the Act would be particularly welcome. One of our underlying concerns is that as the legislation surrounding the countryside, both primary and secondary, gets ever more complicated, it is impossible for an individual to know precisely what the law actually implies for the activities he is thinking of undertaking. The problem is compounded by serial amendments and the existence of codes of practice, EU Regulations etc, etc. Even the Police often make mistakes due to confusion and conflicting statutes. It is increasingly hard to sustain the line that ‘ignorance of the law is no excuse'.
A proper consolidation of the WLCA and other wildlife legislation ( eg Deer Acts, Game Acts, Seals Act, Badgers Act etc.) would be very helpful.
Part 3: Legislative proposals arising from the consultation on non native species policy.
Proposal T: that Schedule 9 be retained, and subject to an early review by JNCC
We are content with this Proposal.
Proposal U: that the provisions in s.14 are not amended to allow the introduction of bird species within the EU, nor is the definition of "wild bird" further amended to exclude non native species.
We are content with this Proposal.
Proposal V: to extend the prohibition on the release or causing to escape of an animal listed in schedule 9 to include hybrids of animals listed on schedule 9
We agree that this would help to tidy up the legislation.
Request for comments: should Schedule 9 Part II be extended to cover plants not currently established in the wild in the UK but which are considered to have a high risk of causing damage to native ecosystems?
We are a little concerned by this. Is there a risk of banning the planting of exotic game crops imported from abroad? If so, it needs further thought and consultation because such crops are now fundamental to a lot of game and wildlife management.
Proposal W: to introduce a power to allow the Secretary of State to take action or where appropriate require action to be taken to control contain or eradicate species listed on Schedule 9.
We have no objection to this.
Proposal X: to introduce powers of compulsory access to prevent immediate threats to the environment in respect of species listed on Schedule 9. Circumstances under which such powers would be available to include the protection of public health and air safety, and to provide protection to native diversity.
Comments are requested: on the desirability of extending the power of compulsory access proposed above in relation to nonnative species to allow control of native species in order to preserve public health and air safety
Powers of entry always needs to be matched by appropriate checks and balances. We would want to be consulted on this in greater detail before being able to express a definitive view.
Proposal Y: to adopt the use of a general licence to allow the re release of certain rehabilitated species subject to specified conditions
This seems OK but we would need to know more about the species concerned and the specific conditions before being certain.
Proposal Z : to introduce a power to allow the imposition of a restoration order by the court upon conviction of an offence under s.14
We have no particular comment on this.
Proposal AA: a prohibition on the translocation of native species outside their native range, except under the terms of a licence granted by the Secretary of State, should be introduced.
There may be significant issues here. Much depends on the definitions of ‘species' and ‘native range'. Problems could arise, for example, in relation to the stocking of trout into rivers, or releasing gamebirds into areas where they currently do not breed readily. The proposal could have the effect of limiting sporting shooting, in contradiction of the Government's policy, without actually benefiting wildlife. It needs careful thought and further consultation if the decision is made to go ahead.
REVIEW OF SCHEDULES 5 and 8
The NGO has only one comment on the concurrent review of Schedules 5 and 8.
We would be concerned if the protection afforded to water voles were to be increased, not because we have any objection to them as a species but in case the risk of inadvertent capture made the trapping of genuine pest species more problematic. It would be very difficult to design a trap that could catch certain target species but which would reliably exclude water voles.
Conclusion
In general Defra has kept to its brief of not seeking to change an Act that is working reasonably well. Some of the proposals go too far; most we are content with. Others will no doubt argue that the current reforms should go further. When they do, we would urge Defra to stick firm to the principles quoted in ‘General Points' 2-5 above.
We again offer to meet with Defra to discuss in greater detail any of the points we have made here, or to give any general advice we can on the management of the countryside.