28 Jun 2016 Referendum Outcome: Has the Law Commission provided a post EU solution for Wildlife Legislation?
Following the referendum result, there is a high degree of uncertainty as to what the result means for the environment, not least with regard to effects on all the existing EU environmental regulations including legal provisions for wildlife. The current environmental legislation, national and local planning policy all remain applicable at this time and until greater clarity is provided by the Government , our view at BSG Ecology, is that it’s business as usual. As such, we will continue to resolve ecology matters for our clients to inform planning proposals and deliver success in planning terms, but with one eye on the future. We will particularly focus on the need for proportionality and application of the mitigation hierarchy to inform the delivery of sustainable development. We envisage that this may be the case for the next couple of years; although undoubtedly environmental organisations will lobby to influence the approach the government takes to the environment and early indications of the way things are going will emerge.
Key to legislative reform is the Law Commission review of existing wildlife legislation which was commissioned by Defra with the aim of reforming wildlife law within England and Wales. Consideration was given to pulling together the species-specific provisions allowing for the conservation, control, protection and exploitation of wildlife but not to change the scope of their protection. The project included a consultation period in 2012 and numerous consultation meetings, two of which were attended by BSG partners, Dr Peter Shepherd and Kirsty Kirkham. The final report to Defra was issued in November 2015 with over 280 recommendations. Within Volume 2, the Commission set out a draft Wildlife Bill proposing a single statute of wildlife law, to apply to England and Wales.
The Law Commission has sought to ensure that this new draft piece of wildlife legislation is clear, ‘modern’ and workable. It has aligned the EU obligations in with our own domestic obligations and those of international Conventions including the Bern and Bonn Conventions; both of which pre-date the EU Birds and Habitats Directives and all of which highly influenced the Wildlife and Countryside Act 1981 and Conservation of Habitats and Species Regulations 2010. Where our domestic legislation places more stringent provisions upon us than our international or EU obligations (commonly known as ‘goldplating’), we are aware that the current Bill focusses upon being flexible and least burdensome. It is considered possible that some of our goldplating may be removed to promote development and to avoid a perception of stifling the economy.
It is not yet known how the UK Government will amend the proposed single statute or how the devolved Welsh Assembly will respond to the review in light of the EU referendum result. Similarly, might the Scottish Government keep their current statute and their alignment with EU provisions? It may be that the ground work undertaken by the Law Commission stands England and Wales in good stead for providing certainty quickly in respect of wildlife law and it may present a potential quick win for the new Prime Minister.
As always, we will monitor emerging legislative change across the UK, consider what it might mean for our clients and advise accordingly. We will strive to be aware of changes in advance and share these with our clients. We will work with our key contacts that we’ve developed over 20 years or more in the industry, legal and planning professions and nature conservation stakeholders. We will continue to deliver ecology solutions that work for our clients now and to ‘futureproof’ their ecology approach taking into account what the future legislative regime may become.
Link to Volumes 1 & 2 of Law Commission report are below: