Walking on the wild side of the law
Stephen Tromans QC welcomes plans to modernise conservation laws
Many readers may be unfamiliar with the work of the Law Commission. It is the statutory independent body created by the Law Commissions Act 1965 to keep the law under review and to recommend necessary reform. The commission’s aim is to ensure that the law is fair, modern, simple, and as cost-effective as possible.
It is now beginning a foray into nature conservation, and is drawing up provisional proposals to reform the legal regime for wildlife management, as part of its 11th programme of law reform.
The commission states that, while wildlife protection and the sustainable management of our natural heritage have become increasingly regarded as key policy aims for government over the past decade, the legal framework for wildlife management is “overly complicated, frequently contradictory and unduly prescriptive”.
As a result, it claims that the law creates unnecessary barriers to effective wildlife management, including the efficient implementation and enforcement of government policy.
In particular, the commission has noted how the law regulating human dealings with wildlife is spread over many statutes, going back to (at least) the early 19th century, and has developed from an initial concern with hunting, fishing and poaching to addressing habitat modification (burning and clearing), the control of pest species, protection from cruel methods of capture and killing, and now conservation – including the reintroduction of departed native species and the removal of non-native species.
The result, says the commission, is a “legal structure made up of succeeding geological strata of legislation with no coherent design” and “a preponderance of primary legislation, much of which has not been amended to reflect modern conditions”.
Conversely, the principal modern Act – the Wildlife and Countryside Act 1981 – has become so amended as to be “difficult for the non-lawyer to use”.
The commission is right in this analysis. The area is ripe for legal rationalisation and reform. It is, of course, heavily influenced (indeed dictated) by European Union law in certain areas. However, there are many important provisions, such as those dealing with sites of special scientific interest (SSSIs), which are purely domestic in origin and application.
These provisions have, from time to time, attracted senior judicial attention, perhaps most famously in 1992 in the House of Lords case of Southern Water Authority v Nature Conservancy Council.
On that occasion, Lord Mustill described the SSSI regime as “toothless”. Since then the regime has been strengthened and given some teeth by the amendments of the Countryside and Rights of Way Act 2000.
The law does, however, remain somewhat obscure and piecemeal and has its share of oddities and inconsistencies, which those practising in the area have come to know – even possibly love – over the years.
Certainly I can vouch for its complexities, having been on English Nature’s council for six years as the law was being reformed, and having advised and appeared at court and public inquiries over the years.
Modernisation is vitally important because there is an ever increasing tension between the need for development, such as housing and infrastructure, and the protection and enhancement of the remaining natural heritage.
It is in everyone’s interest to have a regime that is coherent, understandable to the public and to developers as well as to experts, and provides effective checks and balances as well as enforcement procedures. Much of the current law was simply drafted in a different age, with different pressures and problems to those we now have.
The overarching goal of the commission’s project is to make the law work better for all concerned with wildlife. This includes ensuring the statutory framework for wildlife management can facilitate the policy decisions of the government and allow for the appropriate balancing of human and nature conservation interests.
Law reform would seek to provide a modern and simple framework, with an appropriate balance between primary and secondary legislation, and guidance. The aim is to publish provisional proposals for reform in June 2012, followed by a three-month public consultation. A final report, with recommendations and draft bill for consideration by parliament, is scheduled for mid-2014.
Hopefully those involved in the area, and who have a good appreciation of the needs of the law, will find the time to contribute to the project.