Section 3. Main Findings
3.01 Data have been gathered on the
effectiveness of Schedules 5 and 8, the Habitats Regulations and
Conservation of Seals Act and the extent to which threats to
species can be or are being regulated by the legislation. The
responses to the questionnaire are presented in in Appendix 3. The
views obtained are those of individuals and organisations. They
reflect perceptions of the significant threats posed to protected
and BAP-listed species and the relative effectiveness of the
legislation and other measures in addressing those threats. No
statistical analyses have been undertaken on the information
obtained, rather we have used this as a measure of the perceived
effectiveness of existing legislation and the appropriateness of
that legislation for addressing the threats to species thus
protected.
3.02 This section draws on information gained
from the interviews and focus groups undertaken as part of the
project. Other information was received, either as material
additional to returned questionnaires or in the form of letters.
All of the issues raised and proposals made during the project
regarding the effectiveness and appropriateness of the existing
species legislation are presented in Appendix 3. The following
section highlights the principal issues and proposals raised: these
are divided into the following topics:
3.03 It should be noted that the views
expressed below are a synthesis of those attending the Focus Groups
and Interviews and not those of the contractors. They reflect a
broad consensus of opinions, but where such consensus was not
reached this is specified. Where views were restricted to a
particular Focus Group or taxonomic group this is also specified.
We have, as far as possible, attempted to group issues into
'generic' views where these have a broad applicability across a
range of taxa.
3.1.0 It is by no means clear for some species
what are the most significant threats. For marine species it is
sometimes difficult to assess the relative significance of
different threats due to a lack of information, particularly for
benthos (bottom-dwellers). For other species a lack of information
risks an inappropriate focus of attention on species erroneously
thought to be threatened.
3.1.1 Collecting and commercial
exploitation
3.1.1.1 Relatively few species listed on the
schedules are actually threatened by collecting or deliberate
disturbance as defined within the Wildlife and Countryside Act.
Very few species on Schedule 8 have so far suffered from actual
collection or exploitation, though for a small number there may be
a latent collecting threat which is suppressed by the legislation
(see Military orchid Orchis militaris case study Appendix
6. For a comprehensive view on the significance of different types
of threat to different species or groups of species see Appendix
3.
3.1.1.2 Collecting of invertebrates does occur
and a handful of these species are subject to commercial
exploitation which seriously threatens their conservation status
(see pearl-mussel Margaritifera margaritifera case study,
Appendix 6). Uncontrolled collecting of invertebrates from nature
reserves is seen as a problem which needs to be tackled.
3.1.1.3 Reptiles and amphibians are also
subject to a threat from the pet trade. Although there is no overt
trade in any of the four strictly protected herptiles, three of the
remaining four widespread reptiles are quite regularly found in pet
shops and aquarists. This trade is not being adequately monitored
by the DETR licensing system. Licences are usually issued
retrospectively, it is not compulsory to fill in the part of the
form specifying where the animals were collected from and licensees
have never been required to disclose the number of animals
collected from the wild, only the numbers they sold (no account is
taken of animals that died in the pet shop or are released into
locations unknown to die).
3.1.2 Other Threats
3.1.2.1 For a majority of species, habitat
degradation and fragmentation are considerably more important than
species protection issues - for examples see the case study on
species of ephemeral ponds in Appendix 6. These may act at the site
level, for example development pressure threatening local
populations of protected species, (for more information refer to
the case study on great crested newt Triturus cristatus in Appendix
6) or may operate beyond the site level to affect populations of
widespread species like arable plants.
3.1.2.2 Pollution and climate change are the
most significant threats to lower plants, but such threats are not
regulated by species protection legislation. Important threats to
mobile, wide-ranging marine species occur outside UK territorial
waters. Indirect threats to marine species like prey depletion and
poor water quality are not covered within the Act either. Scheduled
freshwater fish species are most at risk from barriers to
migration, pollution, the introduction of alien species and habitat
degradation.
3.1.2.3 Fishing is the most significant source
of threats for many of the listed marine species from the following
sources
direct collection or killing
commercial exploitation
capture/killing incidental to human
activity
habitat destruction
Key Message: Some species are clearly at
risk from deliberate killing and collection, but most species
currently on Schedules 5 and 8 of the Act are not threatened by
collecting, but are threatened by habitat destruction, degradation
and fragmentation, and the wider threats of pollution and climate
change
3.2 Effectiveness of current
legislation
3.2.1 Intentional effects
3.2.1.1 There are two ways in which the
current legislation has been effective in the way it was originally
intended. There have been a small number of successful prosecutions
for offences committed under Section 9 of the Act, mainly for
offences involving bats but also butterflies. A detailed
examination of enforcement proceedings can be found in Appendix 7.
These prosecutions concerning bats appear to have had the effect of
deterring individuals or companies successfully prosecuted from
re-offending. The fact that prosecutions were taken under the Act
appears to have discouraged others from committing similar
offences.
3.2.1.2 In the marine environment protection
against collecting is useful for large, easily identifiable
species, and will be important if bioprospecting, (commercial
collection of biological material for potential use in fields such
as medicine and industry) an increasingly important activity
elsewhere, occurs in UK waters.
3.2.1.3 The deterrent effect has also operated
to discourage potential offenders without any cases ever having
come to court, for example regarding protected plants. This
deterrent effect operates outside the SSSI system helping to
prevent damage to otherwise unprotected populations of scheduled
species. It also operates on SSSIs to discourage third party
activities that would otherwise not be covered. This deterrent
effect, which is based on the legal protection afforded by a
species' presence on a schedule, does not apply to species on the
BAP priority list, but not scheduled.
3.2.1.4 The creation of the Schedules and the
protection they afforded to invertebrates since 1981 has changed
attitudes towards the legitimacy of uncontrolled collecting within
the entomological community during the past 18 years. Some species,
particularly butterflies have definitely benefited from this change
in culture.
Key messages:
The legislation has been successful in
preventing deliberate killing or collection of some vulnerable
species.
A 'deterrent effect' based on the legal
protection afforded to a scheduled species discourages some
potentially damaging activities.
The creation of the schedules has changed
attitudes towards collection of invertebrates, which has led to a
reduction in the numbers of butterflies taken for
collections
3.2.2 Incidental consequences of the
current legislation
3.2.2.1 The main benefits for species on
Schedules 5 and 8 have been incidental rather than as a direct
consequence of the legal protection conferred by the Act. These
spin-off benefits include
Raising awareness of the plight and needs of
species and groups of species (e.g. lower plants)
Acting as a selection criteria for species
recovery programmes
Attracting sources of funding for conservation
activities
Acting as a selection criterion for Sites of
Special Scientific Interest
Used to target Agri-Environment Schemes
Providing kudos for a land-owner
The legal status of scheduled species
influences the actions of local authorities in securing site
protection for species and encouraging positive action such as
survey and monitoring, and sometimes in preventing damaging
activities (see ephemeral ponds case study)
3.2.2.2 Some of these benefits already apply
to BAP-listed species, as this new process becomes increasingly
integrated in the structures of local and national Government. The
benefits of legal protection, notably the deterrent effect against
activities damaging the habitat of protected species could be
extended to BAP-listed species through a legal-underpinning of the
BAP process. This subject is covered in more depth under 'other
measures' and in the final 'Options' section.
3.2.2.3 The presence of scheduled species at a
site has been used in the past as a selection criterion for SSSIs,
though this is rarely applied today (see case study species of
ephemeral ponds). This was the main reason for adding to the
schedules species which were not threatened by collection, other
direct disturbance or destruction. Some hold the view that this
constitutes a misuse of the legislation. However, a majority
contend that the application of this SSSI selection criterion has
enabled important sites to be protected that would otherwise have
fallen outside the network of protected wildlife site. Listing has,
for example, achieved indirect habitat protection for saline lagoon
species and plants such as the military orchid Orchis
militaris (for a more detailed study of this species see
Appendix 6). The presence of a single scheduled species alone no
longer justifies SSSI selection (in England at least) and thus some
sites which would have previously qualified for notification as
SSSIs now remain unprotected. There are strong opinions that the
SSSI selection criteria should be weighted in favour of plants -
and lower plants in particular, and that there should be more SSSIs
for species in general. This subject straddles the boundary between
species and site protection and is referred to under "other
measures".
3.2.2.4 Incidental drawbacks were also
highlighted within some groups. Scheduling of many species of
invertebrates which are not threatened by collecting has actively
discouraged legitimate entomological work which often requires
specimens to be collected for identification purposes. The legal
requirement to apply for licences discourages spontaneous survey
work and the subsequent decline in the number of entomologists
working on scheduled species has led to a decline in information on
the status and ecology of those species. A counter argument was put
forward that the information gathered from such activities is only
useful for species conservation when it is made widely available
and there are problems associated with gaining access to such data.
Another problem for invertebrates which has been observed elsewhere
in Europe and perhaps occurs in the UK, is that the legal
protection of a species makes it more attractive to collectors, the
so-called "prohibition" problem.
Key messages
Species on Schedules 5 and 8 have
benefited considerably from incidental benefits other than those
originally intended, especially the notification of sites
supporting scheduled species as SSSI.
Scheduling has actively discouraged
legitimate research, recording and monitoring of protected
invertebrates and may actually encourage illegal
collection.
3.2.3 Gaps, inconsistencies and
loopholes in the current legislation
3.2.3.1 A number of gaps, loopholes and
inconsistencies between Sections 9 and 13 and the provisions in
other wildlife legislation have been highlighted during this
project, They are described below with proposals for their
rectification.
3.2.3.2 The link between species protection
measures and the protection of their habitat has been alluded to
already in the context of SSSI selection criteria. Habitat
protection is perceived as a more effective approach than just
species protection, for the conservation of both marine and
terrestrial species.
3.2.3.3 At present owner/occupiers of sites
supporting populations of scheduled species may not be aware of
their presence and may inadvertently damage or destroy those
populations. This problem is compounded by the fact that the SNCOs
have no right of access to these sites for monitoring purposes nor
do they or the police have a right of access to establish whether
destruction or damage has taken place. Further, the defence clause
where an act damaging or destroying a population, place of shelter
etc. would not be illegal if it was the "incidental result of a
lawful operation which could not reasonably
have been avoided" applies in these
circumstances, making proof that an offence has been committed
extremely difficult even when there were witnesses to such
acts.
3.2.3.4 The defence clause relating to lawful
operations is also an issue for marine species, in particular
because of the threat to many of these species from legitimate
fishing activity. This was consistently and frequently raised as a
matter which needed to be addressed to improve the effectiveness of
the legislation for the conservation of marine species (see also
case studies on cetaceans and benthic invertebrates in Appendix
6).
3.2.3.5 The species provisions of the Act are
generally difficult to apply in the marine environment. The
offences of "damaging place of shelter" or "disturbing animals
while occupying places of shelter" are unsuitable wording for most
of the marine species. It is also difficult to define "deliberate"
disturbance, however this could be avoided by introducing an
offence of "harassment" covering activities likely to disturb or
having the potential to disturb an animal. Where the legislation is
applicable it is untested (see "enforcement" section and case
studies on cetaceans and benthic invertebrates).
Key messages:
The links between species and habitat
protection are insufficient.
The "incidental result" defence clause and
the lack of powers to enter land supporting protected species are
serious loopholes in the Act
For many of the listed marine species the
wording of legislation is difficult to apply in
practice.
3.2.4 Selection of
Species
3.2.4.1 The selection of species on schedules
5 and 8 has been inconsistent, illogical and has led to an odd
assortment of species being listed. Selection criteria have been
applied inconsistently at different times and for different
taxonomic groups. Consequently the use of the schedules has
departed from the original intent of Part I of the Wildlife &
Countryside Act.
3.2.4.2 There is a certain inertia within the
scheduling process. The quinquennial review process is too slow to
allow the legislation to keep pace with current taxonomic research.
There is also a reluctance to remove species from the schedules
even when the indications are that their populations have
recovered.
3.2.4.3 The schedules now contain various
distinct groups of species. There are some species listed for which
threats posed clearly relate to the legislative controls available;
Appendix 6 includes case studies on bats, great crested newts and
the pearl-mussel as examples. For most others no such clear
relationship exists. For a full investigation of the threats
perceived as most significant to protected and BAP-listed species
see Appendix 3.
3.2.4.4 No clear taxonomic threshold has been
applied when selecting species for addition to the Schedules.
Microspecies have been selected for addition to Schedule 8 while
endemic sub-species proposed for Schedule 5 have been rejected.
Introduced specimens of scheduled species appear to be afforded the
same level of protection as native populations, even when the
introduced individuals may pose a threat to native
populations.
3.2.4.5 Schedule 5 comprises non-avian
vertebrates and invertebrates. Invertebrate specialists felt that
this lumping together leads to legislation meant for one group is
being inappropriately applied to the other and had contributed to
the problems of discouraging legitimate collecting for
identification purposes.
3.2.4.6 Some species may be threatened with
collecting in one country or region of Great Britain, but not in
others. Similarly some species may be much rarer in parts of Great
Britain than in others.
3.2.4.7 The UK has a particular global
responsibility for a number of species or taxonomic groups such as
seals. Rather than being listed in the principal wildlife Act,
seals are covered by the Conservation of Seals Act, 1970 which is
seen as providing guidance on the killing of seals, rather than
legislation to promote their conservation. This creates an anomaly
as it is driven principally by animal welfare issues rather than
wildlife conservation requirements. The licensing system for
killing seals is also considered to be unsatisfactory as it is not
linked to wider issues of the management of seal populations. The
absence of seals from the Act also raises the issue of whether a
species for which the UK has an international responsibility, but
which are currently abundant in the UK should be listed in the
Schedules.
Key messages:
Selection of species for Schedules 5 and 8
has been inconsistent and has led to an illogical list of protected
species, few of which are threatened by deliberate
actions.
The review process is too slow to keep up
with current research.
There are taxonomic and geographical
inconsistencies and confusion caused by the presence of vertebrates
and invertebrates on the same schedule.
Species for which the UK has global
responsibility are not necessarily represented or are covered by
inappropriate legislative provisions.
3.3 Enforcement of the current
legislation
3.3.1 Compared with the enforcement of
legislation in respect of Schedule 1 species (birds), and with the
notable exception of bats, (for examples see case studies in
Appendix 6 and data on enforcement proceedings in Appendix 7),
there has been little actual enforcement of the current legislation
through prosecutions of alleged offenders or cases which were
terminated before they reached court. There are a number of reasons
why enforcement has not taken place for the majority or species on
Schedule 5 and any species on Schedule 8.
The interpretation of the legislation is often
difficult, since the final legal text adopted does not always
reflect the original intent of the proposed legislation and only by
case law can this be rectified.
A lack of resources and availability of
expertise hampers enforcement.
An long list of scheduled species, many of
which are impossible to identify without expert help, makes the law
technically complex and difficult to enforce.
There is a reluctance to prosecute by the
Police Service/CPS, due to resource implications for an area of
crime not given priority under successive Governments.
It is difficult to interpret the meaning of
the legislation; in particular, definitions of "intentional" and
"deliberate"
There are limited powers of arrest and
custody, no power to stop an offence while it is being committed or
if it is about to be committed, and no right of access onto land
except to gather evidence that a crime has already been
committed.
The penalties on conviction create a
relatively small deterrent effect (see Appendix 7 on enforcement
proceedings for information on penalties) compared with other
equivalent legislation such as COTES, Protection of Animals
(Scotland) Act 1912; Environmental Protection Act 1990.
It is difficult to prove that individuals
caught in possession of specimens, especially of plants and
invertebrates, took them from the wild.
3.3.2 There are particular problems associated
with the marine environment, notably:
Many marine species are difficult to identify
and such identification requires removing them from the sea, which
is itself an offence.
A lack of information about status, extent and
ecology of species makes application of clauses prohibiting damage
to places used by these species difficult.
Offences committed at sea are notoriously
difficult to prove, made more difficult by the requirement for two
witnesses.
3.3.3 In addition to these constraints it is
very difficult to gather information on prosecutions or cases which
terminated before reaching court under Sections 9 and 13 as there
is no central recording of offences under these sections.
Information is held by different organisations for their own
purposes with no co-ordination between them. This makes the
development of case law is even more problematical. Nor is there a
reporting system for recording alleged offences which potentially
fall under this legislation even if no prosecution takes
place.
Key messages:
The Act has not been adequately enforced
due to intrinsic problems of definition and complexity and lack of
suitable powers to aid enforcement, a lack of resources and a lack
of case law to aid interpretation.
There are specific problems with enforcing
the Act at sea.
There is no central recording of offences
and alleged offences making the monitoring of effectiveness and the
development of case law difficult.
3.4 Other measures
for achieving species conservation
3.4.0.1 The effectiveness of measures other
than species legislation to deliver species conservation objectives
was discussed at length. Three principal themes emerged from the
debate: Awareness-raising and information; the Biodiversity Action
Plan process; the wider environment.
3.4.1 Awareness and Information
3.4.1.1 Some protected species suffer from
prejudice and ignorance. The killing of snakes is the kind of
wildlife crime which results from myth and prejudice. The general
public and key sectors, such as fishermen and divers, who can have
an impact on protected marine species, are often unaware of the
species' legal status. Similarly there is often a lack of
information on the locations of protected species, the operations
likely to damage them or their habitats, and the requirements
needed to manage them.
3.4.2 The Biodiversity Action Plan (BAP)
Process
3.4.2.1 The Biodiversity Action Plan contains
over four hundred species action plans prepared to help achieve
conservation of the highest priority species in the UK. This BAP
priority list includes several hundred species which are not
protected under Schedules 5 and 8. The BAP process has many
advantages; it has helped raise awareness and improve understanding
of species (especially marine, lower plants and obscure inverts),
has helped target effort and involves a wide range of
organisations: it is also seen as the best mechanism for dealing
with habitat degradation.
3.4.2.2 However there are drawbacks to the BAP
process, notably that there is no legal basis to it and it thus
confers no protection to species. Also, the presence of species on
the BAP list does not mean as much to the public as the presence of
those species on a schedule of the Act. There is also confusion
between the different provisions attached to the schedules, the BAP
process and Red Data Books. There is general agreement that the
priority list has been prepared hastily and contains errors.
Finally, although the BAP process may be fine in theory and strong
on consultation, it has not yet delivered real conservation
benefits.
3.4.3 The wider countryside
3.4.3.1 The wider countryside outside
protected areas, supports many populations of protected and
priority species. Particular features of the wider countryside,
such as ponds, ditches, field corners, headlands hedgerows and
copses provide habitat for threatened species and are vulnerable to
damage or destruction. Most of these features, with the notable
exception of hedgerows, are not legally protected. Although
agri-environment schemes such as Countryside Stewardship and
Environmentally Sensitive Areas do take into account the presence
of protected and priority species, these are restricted either
geographically or in terms of habitats, and there is no mechanism
available at present
specifically to help with the financial cost
to owners/occupiers of managing sites which support all protected
or priority species. Advice is available to owners and occupiers on
management of the land, but this does not necessarily include
specific advice relating to the needs of particular species, nor is
it obligatory that this advice be acted upon.
Key messages:
Protected species suffer unintentional
disturbance and damage by the public because inadequate information
is available on the status, locations and requirements of protected
species. Ignorance and prejudice are still problems for some
animals
The Biodiversity Action Plan process has
already achieved a great deal, particularly in raising awareness of
less well-known species. It has the potential to make a significant
contribution to species conservation, but there are considerable
problems notably the lack of legal foundation, the relationship
with other processes and the confusion over the selection of
species on the priority list.
Landscape features providing habitats for
threatened species remain unprotected and vulnerable to
destruction. Incentives and advice, although available, are not
specifically targeted at sites supporting protected or other
priority species.
This concludes the section covering the
principle issues raised during this consultation process. The
following section investigates the main options put forward to
address these issues. Each principal option is described, including
a brief summary of the benefits of drawbacks of each option.