Wildlife law reform

In August 2011, the Law Commission launched a large-scale consultation on current wildlife law in England and Wales to ensure that it is in line with our obligations as an EU member. Surprisingly, the initiative and accompanying document didn’t get much coverage in the sporting press at the time. But make no mistake, any changes in existing legislation may have far-reaching consequences for all involved in game preservation. The lengthy document is available to all interested parties; I urge all of you to read it: http://lawcommission.justice.gov.uk/areas/wildlife.htm and respond to it before the consultation closure date on 30 November – time is short so please don’t delay.

BASC has called on shooters to get involved, but it is a busy time for hard-pressed gamekeepers at the moment and I fear time limitations may put many off responding. I cannot urge you enough to make the time to read and react as soon as possible. I may be being cynical, but I cannot help thinking that the timing of this consultation is more than coincidence. It was launched a day after the start of the grouse shooting season, when hill keepers are tied up with shooting commitments, and low-ground keepers are busy putting birds to wood. Indeed, the closure date itself couldn’t be worse timed – just as pheasant shooting is really getting under way.

Our antiquated game laws have been long overdue a significant overhaul. Indeed, the Game Act goes back to 1831, and the last major legislative changes to wildlife law (other than the Protection of Badgers Act 1994 and Hunting Act 2004) was the Wildlife and Countryside Act 1981. However, the later legislation should be a warning to all. The shore shooter lost both the redshank and the curlew for little more reason than these waders had ‘a wonderful call,’ as one minister of the time put it. Marginal quarry species such as the golden plover may not be of interest to every gun, but they are a very big part of our sporting heritage and it would be a tragedy to lose them. Furthermore, I fear for more mainstream game bird species too. Noises have already been made in conservation circles about the justification of shooting woodcock, black grouse, ptarmigan and even the English partridge. Thankfully the GWCT has a good deal of work in progress regarding most of these species and their sterling research, backed up with sound scientific argument, is the foundation of our cause and legitimate argument. Backed by sound and sustained lobbying from all of our representative shooting organisations, we should hopefully avoid any discriminating legislation slipping through. But sound argument will carry so much more weight if it is backed up by a massive response from industry professionals and practising shooters.

The 200-page document comprises a review of the current, rather complicated, legal regime in England and Wales, and also the increasingly significant international obligations that Parliament now has to bring into our own domestic law, thanks to our membership of the EU. This is where things could really get messy. A recent example of the UK suffering unfair pressure from Brussels is the loss of the bracken controlling chemical Asulam – owing to continental spinach growers’ concerns that are irrelevant to British agricultural practices. Brussels failed to accept the significant threat that bracken has to our globally important heather moorlands.

When it comes to hunting wild birds, the document proposes adopting the statutes of the European Wild Birds Directive, which would require a close season for the species it covers. We will have to watch this very carefully if we are not to lose any more quarry species. The commission has proposed that Article 7 of the EU Wild Bird Directive be transposed into the law of England and Wales. This may have consequences. The proposal reads:  “Hunting is not prohibited by the Wild Birds Directive, and is in fact explicitly permitted under article 7 so the activity is not prohibited as a matter of EU law, but there is generally no basis for licensing it under domestic law. Therefore, the domestic law needs reforming to allow it to do what it already purports to do.”

Legal eagle Peter Glenser recently made an interesting point regarding the possible domestic law shooting reforms aimed at anomalies such as pigeon shooting in the October issue of Gun Trade News: “Currently you may only shoot pigeons under the terms of Natural England’s general licence. That means that they may only be legally shot when the user is satisfied that legal (including non-lethal) methods of resolving the problem are ineffective or impracticable. The ‘problem’ in this case is serious damage to livestock, foodstuffs for livestock, crops, vegetables, fruit, growing timber, fisheries or inland waters, and prevention of the spread of disease. It is difficult to reconcile that legal basis with the shooting of pigeons during driven shooting or guided pigeon days by non-farmers. It may well be that this is addressed by the new Wildlife Act”. Let’s hope it is, and also the use of the general licence for other UK pest species too.

Don’t get me wrong, a single, sensibly arranged reform of wildlife legislation consolidated under a single Act would make its implementation and policing much easier to understand by all – but not at the expense of any of our current rights. Interestingly, possible reform aims to reduce wildlife law’s dependence on criminal law, instead favouring a range of regulatory measures such as guidance, advice, and civil measures such as fines and bans. I can understand this ideal being based around avoiding expensive, time-consuming legal hearings for a more streamlined civil alternative. However, I have my doubts about its practicality, and anti-shooting magistrates being answerable to no one but themselves.

The current UK wildlife legal landscape is certainly out of date, confused and often contradictory. Sensibly the document does recognise that the hunting, management, and welfare of pheasants is governed by four separate statutes, which has to be addressed. If approved, the recommendations would make it easier to control invasive non-native species, with measures such as the power to ‘emergency list’ a species for one year. This could prove to be useful, as long as it isn’t twisted to include pheasants or red-legged partridge, for example. Another interesting point is the possible creation of ‘species control orders’, which could require landowners to take part in culls. This would be very applicable to the current furore over badger culling. Indeed, the badger issue may prove to be something of a quandary in any new legislation, as in most European states the badger is a recognised quarry species with seasonal shooting restrictions.

Another parallel is the Hunting Act 2004, which has strangely been left out of this consultation. What an opportunity this would have been to push for repeal. Hunting with hounds is still common practice in most of mainland Europe, so why can’t we come into line with them and enjoy what we once had? It seems to me like another case of double standards and selective reform that suits those who continue to try and curtail our sport.

I welcome anything that does away with complicated wildlife law and improves legitimate shooting and conservation, but any reform must be fit for purpose, and not an excuse to impose further unfair restrictions on our industry.

Responses must be returned by email to wildlife@lawcommission.gsi.gov.uk before 30 November 2012.

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