Current project status
The current status of this project is: Complete.
List of project stages:
- Analysis of responses
- Initiation: Could include discussing scope and terms of reference with lead Government Department
- Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
- Consultation: Likely to include consultation events and paper, making provisional proposals for comment
- Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
- Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations
We published our final report and draft Bill on 10 November 2015. Some of our recommendations, relating to the control of invasive non-native species and published in a separate report in February 2014, were given effect in the Infrastructure Act 2015. Both the UK and Welsh Governments have responded to our Report making it clear that neither intends to implement our recommendations in the immediate future.
Over the last decade, wildlife protection and the sustainable management of our natural heritage have become increasingly regarded as key policy aims for Government. However, the legal framework for wildlife management is overly complicated, frequently contradictory and unduly prescriptive. Consequently, the law creates unnecessary barriers to effective wildlife management, including the efficient implementation and enforcement of Government policy.
On 22 November 2016 Dr Therese Coffey MP, the Parliamentary Undersecretary of State, wrote to the Chair of the Law Commission giving the Government’s response to our recommendations:
Exit from the EU provides an opportunity to re-examine our regulatory framework and how it works, so that it is fit for purpose to meet our national needs in future and fulfil our international obligations. It means we need to consider the implications of EU Exit for our approach to wildlife policy before deciding whether and how to implement your proposals and whether some of your proposals would need amending in light of EU Exit.
Pressure on parliamentary time also means it is likely to be very difficult to find time to bring forward legislative proposals for major reform in the near future. However, I am happy to support the principle of looking at wildlife legislation as a whole to provide a coherent system which achieves better outcomes. The Law Commission’s work will be invaluable in informing the Government’s thinking.
Lesley Griffiths AM, the Cabinet Secretary for Environment and Rural Affairs also wrote with the Welsh Government’s views:
In light of the uncertainty surrounding the future of environmental policy post Brexit, I do not believe it is time to bring forward a Wildlife Bill that implements your recommendations. The transition to the UK’s withdrawal from the EU provides the opportunity to improve environmental regulation, support the implementation of the Environment (Wales) Act 2016 and build on environmental standards. … I intend to use your report and draft Bill as part of the underpinning evidence to inform our way forward on new legislative opportunities to protect wildlife in Wales, following the referendum decision.
In his responses our Chair noted that the project’s core aim (to provide clear, coherent legislation and a modern, flexible regulatory framework to govern wildlife management in England and Wales) remains vitally important, and expressed his hope that the Report and draft Bill would help both Governments take stock of the current situation and make further adaptation to reflect future policy choices. He also suggested that a certain amount of rationalisation of the domestic legislation could be achieved without primary legislation.
He took the opportunity to thank the many stakeholders who assisted the Commission throughout this project.
The final report
We published our final report and accompanying draft Bill on 10 November 2015.
In it we recommend that the patchwork of existing legislation be replaced by a single statute. The new statute brings together the law governing the protection, control and management of wildlife to make it more consistent, easier to understand and simpler to use. Reflecting relevant EU directives and international conventions as well as national wildlife policy, the statute provides a regulatory framework organised around schedules listing protected and controlled species and prohibited conduct.
Existing protections for wild animals, birds and plants are maintained but a statutory procedure for amending the schedules is introduced, allowing for more strategic management of species. The existing requirement for protected species lists to be reviewed every five years is extended to include all relevant lists. Ministers retain the power to make changes between reviews, but they will be required to publish their reasons if they do not follow expert advice.
We recommend a reduction in the current dependency on criminal law by allowing an appropriate mix of regulatory measures such as guidance, advice and a varied and flexible system of civil sanctions such as fines and bans. But the penalty for the most serious wildlife crimes will be extended from six months to two years in prison.
Nicholas Paines QC, Law Commissioner for public law, said: “Our reforms sweep away the confused and contradictory patchwork of existing legislation to provide a balance between the needs of the people who manage wildlife and those who want to protect it.
“We are recommending a modern, flexible regulatory framework that will allow for the strategic, long-term management of wild animals, plants and their habitats. What we are recommending does not alter the levels of protection currently offered to wildlife but it will help people understand what their obligations and duties are in respect of wildlife, what they can and cannot do, and what to expect should they break the rules.”
A draft of the new statute, the Wildlife Bill, is included in the Commission’s report.
Invasive non-native species control
On 11 February 2014, we published our report, Wildlife Law: Control of Invasive Non-native Species. This is the first item to be delivered from the full project. This element of the project was brought forward at the request of Defra and the Welsh Government to enable them to consider whether to introduce early legislation.
Invasive non-native species are ones that arrive as a result of human action and cause environmental and economic damage. They pose a significant threat to ecosystems as well as damaging property and infrastructure. Existing law does not contain sufficient powers to allow for their timely and effective control or eradication. Our recommendations in relation to species control orders were given effect in the Infrastructure Act 2015. These orders will make it possible, under certain circumstances, to compel land owners or occupiers to carry out control or eradication operations, or allow them to be carried out by the issuing authority.
The history of the project
The wildlife law project was proposed by the Department for Environment, Food and Rural Affairs for the Law Commission’s 11th programme of law reform, effective from July 2011. In March 2012, the Department asked us to include consideration of appeals.
The project includes consideration of the law relating to the conservation, control, protection and exploitation of wildlife in England and Wales. It does not include discussion of the law relating to habitats or the Hunting Act 2004.
We consulted widely on provisional proposals contained in a Consultation Paper published August 2012.
The project provided for a review point following consultation. In September 2013, Defra Ministers agreed that the project should continue to the next phase. This agreement does not necessarily mean that the Government agrees with the conclusions submitted to Ministers for the review.
On 15 October 2013, we published an interim statement. This statement outlined the key decisions we reached following consultation and reflected the review document submitted to Ministers as part of the review process.
Area of law
Nicholas Paines QC