Is the law really protecting our wildlife?

The extent to which both the world and the UK’s wildlife is under threat has been highlighted in a number of significant reports. The State of Migratory Species Report 2024 – the first of its kind, under the umbrella of the Conservation of Migratory Species Convention 1979 – paints a dire picture of global decline. Listing nearly 1,200 species, over 1 in 5 of them are threatened with extinction. All species are declining in abundance. Hundreds which are not protected under the Conservation of Migratory Species Convention 1979 are endangered. The Red List of threatened species, listing over 150,000 species worldwide, now indicates that 44,000 of them are threatened with extinction. The Living Planet Index 2022, which is managed by the Zoological Society of London in collaboration with WWF, indicated that since 1970, the global wildlife population had fallen by 69%. The State of Nature Report [UK] 2023 found that since 1970 there has been a 19% decline across UK species and that almost 1 in 6 species are threatened with extinction. Defra Findings on Wild Bird Populations in UK 2022 showed that all species had declined by 15% – farmland birds by 60%, woodland birds by 37% and water and wetland birds by 13%. The decline and threat to numerous fish species is very much worse.

The pressure on wildlife comes from numerous sources including over-exploitation (hunting, fishing, incidental capture of non-target species – very prevalent in the fishing industry) as well as the commonly understood sources of loss of habitat (farming and logging) and pollution (light and noise). And, of course, overarching all of these sources are climate change and an ever growing population.

This alarming decline in, and threat to, wildlife has taken place in circumstances where the UK has some of the most comprehensive wildlife protection legislation in the world. The Wild Birds Directive 2009/147/EC required Member States to classify Special Protection Areas (SPAs) in all EC countries to protect habitat for birds. The Habitats and Species Directive 1992/43/EC created Special Areas of Conservation (SACs) to protect habitats to protect biodiversity. The case of Harris v The Environment Agency and Natural England [2022] EWHC 2264 (Admin) – a relatively rare legal ‘win’ for wildlife – indicates these Directives still apply notwithstanding the UK has left Europe. Both Directives are enacted through UK law by the Wildlife and Countryside Act 1981 (as amended); the Conservation of Habitats and Species Regulations 2017 and the Conservation of Offshore Marine Habitats and Species Regulations 2017. These are all huge pieces of legislation. In addition, there are the Hedgerow Regulations 1997 as well as a number of Acts and Regulations which protect specific wild animals, such as badgers and hares.

Given the evidence of rapid wildlife decline, it appears that the extensive wildlife protection legislation is not working. Reasons for this include a competing ‘interests’ balance between wildlife and economic and other drivers, and a failure to enforce and a dilution of the protections. Often penalties are not sufficient to act as a deterrent. In this article we use two examples of wildlife protective legislation to illustrate how these issues play out in law. Both show how difficult it can be to use the law for the purpose for which it was enacted.

Badgers

Badgers are one of the most protected animals in English law. The Protection of Badgers Act 1992 (PBA 1992) makes it an offence for a person to wilfully kill, injure or take a badger. However, since 2017 under government policy to eradicate Bovine Tuberculosis (bTB) over 240,000 badgers have been culled. The economic impact of bTB on farmers can be huge and sometimes leads to the culling of whole herds of cattle. As a consequence, government policy aims to eradicate bTB by 2038.

Since 2011, a very significant part of that strategy has been badger culling which is controversial as to the science behind it as well as its efficacy. Culling is also a deeply unpopular policy with the public. Those in opposition to culling advocate for vaccinating both cattle and badgers as well as for better farming practices, such as the restriction of cattle movements.

Badger culling is legal by way of s 10(1) BPA 1992. It enables a licence to be granted by an appropriate conservation body for the killing or the taking of a badger for scientific or educational or other specified purposes. Section 10(2)(a) allows the appropriate Minister to grant a licence ‘for the purpose of preventing the spread of disease to kill or take badgers, or to interfere with a badger sett, within an area specified in a licence by any means so specified’. The Act therefore already has a built in bias towards interests that compete with the primary aim of the Act which is to protect badgers. Up until April 2022 there had been a gradual shift away from badger culling towards vaccination until DEFRA suddenly announced a consultation document in respect of a new ‘targeted badger intervention policy’. This envisages a programme of intense and indefinite badger culling in areas where bTB rates are high.

The badger culling policy has been subject to legal challenges from the outset. Most have failed in court and highlight the difficulties in using the law to protect the badger population. The first and primary challenge to the culling policy was brought by the Badger Trust in The Badger Trust v DEFRA [2012] EWHC 1904 (Admin). The primary argument that the Secretary of State could not use s 10(2) BPA 1992 to permit badger culling to prevent the spread and reduce the incidence of bTB failed. In the Badgers Trust v DEFRA [2014] EWCA Civ 1405, the Trust failed in an action brought to force the government into maintaining an independent expert panel to review the efficacy of badger culling. In Langton v DEFRA [2021] EWHC 2199 (Admin), the attempt to quash the government’s ‘Next Steps’ policy, which allowed the continuation and extension of badger culling on the basis that it did not take into account the impact on biodiversity or the ecological impact as obliged under s 40 of the Natural Environment and Rural Communities Act 2006, also failed.

There have been some legal victories, usually around the issuing of licences to cull, rather than an effective challenge to the policy per se (as an example of the latter see: Farmers Union (T&G Stone Ltd) v DEFRA [2020] EWHC 1192 (Admin), which failed to overturn a decision to refuse licences). More recently, and significantly, in a judicial review brought by the Northern Ireland Badger Group and Wild Justice[2023] NIKB 117, the court quashed the Department of Agriculture and Rural Affairs’ decision to allow a cull of badgers by shooting in Northern Ireland. The decision was rendered unlawful on the basis that the consultation in respect of the cull was fundamentally flawed and the minister had not been properly briefed on the issue of humaneness.

Hen harriers

The Wildlife and Countryside Act 1981 (WCA 1981) protects all native wild birds and animals and plants. It is an offence to kill, injure or take any wild bird, take or destroy a wild bird egg (or any part of an egg) or take or damage the nest of a wild bird while in use or being built. Notwithstanding this protection, the illegal persecution of birds of prey is rife. Raptors, even those on the most endangered list like hen harriers and white-tailed sea eagles are regularly and deliberately poisoned, trapped and shot. Nests are regularly disturbed, eggs smashed and chicks killed. The most recent RSPB Bird Crime Report reveals that at least 64% of all confirmed raptor persecution incidents in 2022 occurred on land managed for gamebird shooting, similar to data for the last two years.

These offences usually occur on private land making enforcement of the legislation very difficult, which is part of the reason why there are so few prosecutions – notwithstanding the police have a dedicated wildlife crime unit. In terms of poisoning, a major hurdle is differentiating between birds which have eaten prey which itself has been legally poisoned by permitted rodenticides and those birds that have been deliberately baited with poisons to harm or kill them. Another major issue is that the natural habitat and feeding areas of raptors are so large. The use of forensics is becoming increasingly invaluable in developing procedures like electronic tagging to assist in the prosecution of wildlife offences. The independent PAW Forensic Group is drawn from a number of bodies using scientific procedures to assist in prosecution of wildlife offences and especially raptor persecution.

Hen harriers were driven to extinction in the 19th century. Re-introduced in 1960, they are still the rarest bird of prey and are on the Red List which identifies them as at risk of extinction. They have the highest protection under WCA 1981 but are still the most intensely illegally persecuted of all birds of prey. The evidence clearly points to gamekeepers who are protecting grouse shoots. The government joint action plan of 2016 aims to increase hen harrier populations and has six elements one of which is brood management. This allows, in circumstances where a second hen harrier nest is established within 10km of another, the taking of the eggs or chicks from one of the nests to be reared in captivity. When fledged, they are released onto suitable moorland. If they are collected from a Special Protection Area (SPA) they must be released back into this same SPA.

Brood management is an attempt by Natural England to balance the economic and traditional interests of grouse shooting against the illegality of killing hen harriers. Natural England argues that this is a pragmatic approach given the difficulties in actually enforcing the law. Brood management was challenged in RSPB v Natural England[2019] EWHC 585 (Admin) where the RSPB argued that Natural England had failed to consider whether there was another satisfactory solution and that brood management in SPAs was contrary to reg 63 of the Habitats Regulations 2017. This failed on both points because the Court of Appeal found that brood management was a research project aimed at increasing hen harrier numbers. Further, that it was not contrary to reg 63 – partly because there was no evidence that the reared chicks were eventually dispersed from their natural habitat because their flight and feeding areas are so large. The RSPB argues that brood management protects and accommodates the interests of those who are criminal persecutors of hen harriers where the whole purpose of WCA 1981 is to criminalise and prevent such behaviour. Natural England is also removing wild nests, eggs and chicks from within SPAs – which are specifically created and designated areas to protect wildlife.

Inadequate protections

The brood management trial is due to end this year. The debate as to whether the law should facilitate interests which directly undermine the protective legislation or rigorously prosecute illegal activity will no doubt reignite.

The substantial decline in our wildlife tells us that our protections of it are not strong enough. If we really want to protect it, we must have stronger measures and crucially, the ability and will to enforce them.