On 29 June 2017, CIEEM CEO Sally Hayns CEcol MCIEEM spoke at the Westminster Energy, Environment and Transport Forum event on ‘Wildlife Law: Understanding Current Policy & Next Steps for Reform’. Please see below for the transcript of her talk:
Thank you very much for inviting the Institute to speak at this event. When our President gave a presentation on a related theme at a similar event a couple of months ago she referred to the difficulties of talking about the future in the run-up to a General Election and how much easier it would be when we have clarity post-election. Well things have not quite worked out that way, have they?
This morning I am going to talk to you about law, about weaknesses in the current regulatory approach, about trust, innovation and ambition.
For those of you who do not know us the Chartered Institute of Ecology and Environmental Management, or CIEEM, is the leading professional membership body for ecologists and environmental managers in the UK and Ireland. We represent practitioners from the public, private and voluntary sectors, promoting inter-disciplinary understanding, knowledge sharing and high professional standards. As a Chartered body we have a responsibility to provide sound advice to UK governments. They may choose not to listen to it but that does not and will not stop us giving it.
As this event is about Wildlife Law I thought that I would make a start by looking at a couple of useful quotations about law. The first is a seventeenth century quote from Thomas Hobbes but has been rephrased by other commentators many times since.
‘The law is the public conscience’.
To me this suggests that laws represent what society regards as rightful behaviour and uses the premise that, as individuals, we are bound by the standards of the majority. So, that started me thinking down an uncomfortable route. In terms of wildlife laws what do the majority of UK citizens think should be the standards of protection? Should we ask them and, for those of us who are involved in nature conservation, would we like the answer?
I did not like where this was taking me so I looked again. I was then rather taken by another quote, this time from Adlai E. Stevenson.
‘Laws are never as effective as habits’.
Now this really struck a chord. Whilst laws lead us behave or act in certain ways, we do so because we do not want to be punished. Inevitably there will be those who will decide to take the risk of breaking the law in the hope that they can avoid being punished, that they can get away with it. There is a risk versus reward decision going on here. But perhaps some laws are harder to understand than others and therefore maybe we comply with them more resentfully and are tempted to break them (and risk punishment) more easily. Might this be true of our wildlife laws?
Habits are more positive and powerful. Habits form because we, as individuals, initially consciously decide to do something in a certain way, often because we can see the benefits of doing so – both individual benefits and also benefits to society.
That led me on to another train of thought. One that I am passionate about. Communication. In my personal opinion those of us working in the nature conservation sector have become a bit lazy over the past three or four decades. We have relied, indeed perhaps been over-reliant, on the force of law, and particularly the Habitats Directive since 1992, to protect nature here in the UK and we have stepped back from making a case as to why wildlife matters. Of course, there is some excellent work done by NGOs in this area but even those messages are only getting out to a fraction of the population. The fact that we are not able to concisely, persuasively and effectively explain to ‘the man or woman on the Clapham omnibus’ why wildlife, and indeed the wider natural environment, matters and therefore needs to be protected means that such protection is not becoming a societal habit.
For example, I often get telephone calls from small developers and householders, the latter often close to tears, asking me why bats or newts can be more important than their housebuilding project and will cost them thousands of pounds to deal with. All they have been told about why they need ecological surveys and mitigation is that ‘it is the law’. That is an appallingly authoritarian approach. Is it any wonder that nature conservation has such a negative press and that changing such laws post-Brexit can be such a popular political soundbite?
Out of interest, I went online and searched for ‘why do great crested newts matter’ as that is probably what I would do if I was a homeowner who had just been told that my building project could not proceed as planned because of these beasts. After being mildy diverted by the link that said ‘great crested newts for sale’, I scrolled down several pages and could find nothing obvious that answered my query. They weren’t actually for sale – it was fake news. Lots of references to the fact that they are rare and protected, how they are protected and what I should do if I thought I had one on my property, but nothing that said why they should matter to me or to society in general.
Reliance on the law as the case for protecting wildlife is a risky strategy that, in my view, is ultimately doomed to fail. That is not to say that we do not need laws, and we need good wildlife legislation going forward, but we absolutely need to do more to help everyone – citizen or politician (and yes I recognise that politicians are citizens too) – understand why wildlife matters and, more crucially, to want to protect it. Indeed, as a society we need to develop the habit of protecting it and not do so just because the law says we must.
So that is my fist digression over. No doubt there will be others.
Let us look at the current regulatory regime which, as you are all aware, is largely derived from EU legislation. I suspect many of the people sitting in this room felt that, from an environmental protection perspective, staying in the EU was the preferred option. Leaving aside the ‘better the devil you know’ philosophy, I suspect the key reasons are that the legislation has done some good and, most importantly, the European Court of Justice ensures that there is accountability for member states who transgress. But we would all, I think, accept that it is far from perfect and we are still seeing environmental degradation on an alarming scale.
In our view the two key weaknesses of our wildlife legislation are the emphasis on protected species individuals rather than populations and the emphasis on protected sites in isolation rather than ecosystems. Taking protected species, we have a cumbersome, frustrating, expensive and time-consuming system of licensing based on protecting each and every individual regardless of the viability of the population. It requires a disproportionate frontloading of effort and cost on ecological survey rather than focussing on solutions and wellfunded monitoring. The system is broken. It causes endless development delays with associated costs, makes my profession seem like a pariah just trying to make money out of development and creates conflict. It does not work for anyone and in many cases does a disservice to protected species because it polarises the actors in the planning process and provides ammunition for those who seek to discredit nature conservation. Species protection, as we have all heard before, is seen by many as a barrier to economic development, a burden on society and a luxury we cannot afford.
The protected sites approach has been more successful, especially the Natura 2000 network. It is a landscape-scale approach that recognises the strategic importance of key sites for nature conservation. Below Natura 2000, the environmental NGOs in the UK have already transformed their approach to site-based conservation with their living landscapesstyle approaches based on the Lawton principles of ‘bigger, better, joined-up’. This approach to protected sites is one that we would certainly wish to continue post-Brexit and to be incorporated into UK law.
So to some extent, our knowledge, understanding and policy has moved ahead of the legislation but it is the legislation to which we must adhere. Like many other organisations CIEEM is seeking a commitment from the Government to maintain or, preferably, enhance wildlife protection post-Government. The opportunity for wildlife law reform provides the chance to take significant strides forward. But where is the excitement, the anticipation, amongst the conservation community?
I am afraid that I think we have trust issues. We want to cling on to the EU legislation because we do not trust some UK governments to ‘do the right thing’ and see environmental protection as a high priority for a sustainable future. The trust issue has not been helped in England by concerns over the speed at which shiny new ideas and approaches to licensing are being introduced by the regulator, perhaps without a sufficiently well-presented evidence base – something I will return to later. In CIEEM we are concerned that the ‘precautionary principle’, the ‘preventive principle’ and the ‘polluter pays principle’ – fundamental tenets of environmental protection as set out in Article 191 of the Lisbon Treaty – will not find their way into UK law. A political agenda based on deregulation, austerity and unrelenting economic growth does not paint a picture of an environmentally-friendly future. Certainly not one that is in a better state for future generations.
Interestingly trust issues are not true of all UK governments although fine words are not always backed up by financial investment in environmental protection and enhancement. We must remember that the environment is a devolved competence and it has been interesting in recent years to see the different approaches taken by the nations. However, these approaches have been linked by the umbrella of the EU legislation in the past and there is a real issue post-Brexit as to the implications of increasingly divergent environmental policy being mirrored by divergent legislation when the environment does not recognise geographic boundaries. In CIEEM we believe that post-Brexit, environmental powers must be repatriated to the appropriate level within the UK country government structure, with a consistent framework to allow reporting on the UK’s international obligations beyond the EU. In particular, many environmental issues such as climate change adaptation and invasive species management are of international concern and impact and therefore demand a collaborative response across UK countries and beyond.
The other trust issue is over accountability. Will there be a robust independent system so that the Government is not only accountable to itself? Such a system will be fundamental to building trust and confidence between all parties and must be a major ask in any lobbying work going forward.
Putting trust aside, let us focus on the opportunities. These are exciting, if a little scary, times. Yes. we need to understand the detail of the Repeal Bill and how EU environmental legislation will be brought into domestic legislation. We particularly need to know how the statutory instruments approach will be used. But what then? If we want better, even more effective legislation going forward then it is the people and organisations in this room that need to work together to make it happen. Working together. Regulators, professional bodies, NGOs, local authorities, environmental lawyers. We are not the best at being effective collaborators but I truly believe that we all want the same things so wouldn’t it be great if we could put our prejudices aside and collaborate on this?
Take, for example, Natural England’s new approaches to licensing. I said earlier that there are concerns about the speed with which these ideas and policies are being unveiled. We are particularly concerned, firstly, about the suggestion that what might work in certain circumstances and under certain conditions for one species might also work for everything else. Nature isn’t like that. Secondly, we are concerned that this is still a piecemeal approach, district by district and species by species rather than a holistic approach to delivering resilient ecosystems and building natural capital. However, putting those concerns aside for the moment, CIEEM welcomes a more strategic approach that would do what we see as important in managing sites for nature conservation and managing populations of species to favourable conservation status. The regulator should be applauded for thinking differently and for being innovative. More importantly we should all offer our help to design changes to legislation, policy, systems and process that work to benefit conservation and not to undermine it. That is the approach that CIEEM is taking in working with Natural England and it is an approach that I would urge you all to take as well. As I have said before, the current approach is not working so let’s help fix it.
We also need to manage the risks that can arise from a different approach to licensing, for example. For CIEEM that is all about maintaining, or preferably improving, standards, and ensuring proper scrutiny of practitioners. Again, we need to develop systems to do this that are effective and based on collaboration between the professional body, the regulator and the competent authorities as well as other stakeholders. No one side is the enemy. We all want the same thing. Even, I am sure, our new Secretary of State, Mr Gove. Mr Gove describes himself as a ‘shy green’. We need to help him overcome his shyness, to seek the limelight and be loud and proud about his commitment to the environment. Otherwise we will just have to find ways round him.
Thinking strategically means thinking bigger. Bigger than Biodiversity Action Plans. Bigger than Species Recovery Plans. Bigger than No Net Loss. We need a National Environmental Infrastructure Plan or, even better, a National Land Use Infrastructure Plan where we can include provision for protecting and enhancing the environment alongside planning for development, food production, water provision and other societal needs. (Of course we must not forget the marine environment). We need to demonstrate the wider benefits to society and the economy of a healthy environment and how a wide variety of stakeholders can deliver, for example, Net Gain. We need to be ambitious but rationale, passionate but practical and above all, use every means at our disposal to take people with us.
My final point is that changes to environmental legislation and policy must be informed by the best scientific evidence based on research and practice. We shouldn’t rush this important work and we have some time to get this right, although we do have to stop talking about it and start doing it. CIEEM will soon be publishing its own ideas on future priorities for land management, marine management, protected sites, protected species and the water environment. We look forward to hearing yours and finding common ground as we begin the journey towards placing the environment front and centre stage of political decision-making. This is not a time for holding the line. This is a time for seizing the initiative for positive environmental reform. They may not know it yet but society depends on it, and is depending on us.
Thank you for listening.