Hen harrier Circus cyaneus, adult male perched on heather, Loch Gruinart RSPB reserve, Islay

Law Commission review of wildlife law

Wildlife Law in England and Wales has been reviewed by the Law Commission. See our views on their proposals.

Law Commission review of wildlife law

The Law Commission review of wildlife law which ran from 2012 to 2015 could have resulted in the most significant reform of species protection legislation in England and Wales since the creation of the Wildlife and Countryside Act 1981. 

At a time when illegal persecution threatens the future of the hen harrier as a breeding species in England, this programme of reform could not be more timely. It presented the governments in England and Wales with an important opportunity to tackle wildlife crime and make a lasting difference to the prospects of species under threat. However, the Law Commission’s on proposals wildlife crime did not go as far as we had hoped.  

The commission’s proposals on control of Invasive Non-Native Species were given effect in the Infrastructure Act 2015 which was welcome.  However, in November 2016 both the UK and Welsh Governments responded to the Law Commission making it clear that neither would be implementing the rest of their recommendations in the near future.

In 2012, the Law Commission launched a public consultation on its provisional proposals for reform – you can download our full response to this consultation from this page. In it, we made the case for the important changes that need to be made to the law to secure effective legal protection for wildlife.  

We believe we must have legislation which:

  • promotes positive conservation action, enabling the UK to meet its international and domestic obligations to conserve biodiversity and reverse species’ declines;
  • ensures the legal killing of wild birds (for sport or for control purposes) is properly regulated;
  • fully addresses the biggest threats to wildlife in England and Wales, in particular the threats posed by invasive non-native species, which are one of the principal causes of species extinctions globally and cost the UK economy £1.7 billion every year;
  • ensures those responsible for wildlife crime are held to account and properly punished, by introducing an offence of ‘vicarious liability’ (to hold land owners and managers to account for wildlife crimes committed by their staff) and by making much tougher penalties available to the courts.

Furthermore, we need the statutory nature conservation bodies – Natural England and Natural Resources Wales – to be independent, effective champions of the natural environment that act for nature and uphold the law.

In October 2013 the Law Commission published an interim statement, providing an update on the key decisions made following the consultation process. 

Vicarious liability

We welcomed many of the conclusions made by the Law Commission in their interim statement, including the simplification of wildlife law to improve understanding, the standardisation of penalties in magistrates courts and the availability of increased penalties for wildlife crime. 

However, the statement indicated the Law Commission were not pursuing the introduction of 'vicarious liability' despite support for this from the majority responding to the public consultation.  

An offence of ‘vicarious liability’ was introduced in Scotland in 2011. This introduces criminal liability on landowners where their employees, agents or contractors commit an offence, for example illegal persecution of birds of prey.  We believe that vicarious liability continues to have a positive effect in Scotland, focusing land managers on ensuring compliance with the law and so reducing some of the more serious types of wildlife crime.

We believe a similar law should be introduced, in England and Wales, at the earliest opportunity. The Law Commission has recognised that criminal liability does need to be extended to those that ultimately benefit from wildlife crime, but has opted for an offence to 'knowingly permit' wildlife crime.  

This will require a much greater burden of proof than vicarious liability. Careful consideration will need to be given to how such an offence could be strengthened to bring much needed improvement to the conservation of wildlife.

The final report and proposed draft Bill from the Law Commission was submitted to Government on 10 November 2015.  In November 2016, both the UK Government and the Welsh Government wrote to the Law Commission to say that, due to the changed circumstances following the vote to leave the EU, they would not be bringing forward these legislative proposals in the near future.

 Peregrine falcon Falco peregrinus, perched on hotel roof, Manchester city centre

Non-native species

In February 2014, at the request of the Governments in England and Wales, the Law Commission brought forward publishing of part of their final report focusing on the control of invasive non-native species. Whereas some introduced species do not cause problems, others pose huge threats to both native biodiversity and economic interests. 

Until now wildlife legislation in England and Wales has proven inadequate at preventing the introduction or establishment of these species, while failing to ensure action is taken early enough. It is widely recognised that after taking all possible steps to prevent release to the wild, early detection and swift action to control or eradicate invasive non native species are vitally important. Early action can significantly help reduce both damage to wildlife and the costs of control. 

The Law Commission report recommended the introduction of laws in England and Wales that were modelled on previous legislative changes in Scotland. This was an invasive non-native species agreement and control procedure, where landowners and occupiers can be obliged by law to control damaging invasive non-native species on their land. 

The RSPB supported the proposed changes, which were enacted in the Infrastructure Act 2015. 

We further advocate that additional measures already adopted in Scotland, including the prohibition on the release of species outside their native range, are considered for introduction throughout the rest of the UK.