My passion for wildlife was stimulated in my teenage years, mainly thanks to my Mum (a biology teacher) who made me look at the world differently and being inspired by writers such as Paul Colinvaux. This early interest developed into biological research in my 20s, when I did practical conservation work in places such as the Comores and Mongolia.
Today, any free time I have I spend pottering around the flatlands of East Anglia or escaping to our hut on the Northumberland coast looking for wildlife and castles with my wife and children.
I studied Biological Sciences at Oxford and Conservation at UCL, and worked at Wildlife and Countryside Link before spending five years as Conservation Director at Plantlife.
I joined the RSPB as Head of Government Affairs in 2004, became Head of Sustainable Development in 2006, before becoming Conservation Director in 2011.
Last Friday, I spoke at an event on the future of wildlife law and the implications of Brexit. Below, I have shared a longhand version of what I said. As this is an emerging agenda and we are still developing our ideas, let me know what you think. It would be great to hear your views. And, if you like to help protect our environment laws, please visit our campaign pages here.
Legislation can establish ambition, set standards, create institutions, make it easier for people to do the right thing and make it harder to do the wrong thing.
So, it follows that as the need to take action grows or as the circumstances change, so should the legislative response.
From a nature conservation perspective, the need for action is growing...
...in the UK, the 2016 State of Nature report showed 56% of species, for which we have trend data, have declined over the past 40 years
...in Europe, there are 421 million fewer birds today than there were 30 years ago
...globally, according to WWF, unless we take action 67% of vertebrate species could be committed to extinction by the end of this decade
Equally, in my experience, as the challenge grows so must the sector response. Given the UK vote to leave the EU and the significance of EU law and policy to our interests, it is perhaps no surprise that the environmental NGO sector has a desire to be better coordinated than ever before.
In this talk, I will explore how the growing scientific understanding of the nature conservation crisis may influence the development of the current legal framework whilst also highlighting the implications of Brexit and the green NGO response. In passing I shall also make comments on the role of the Judiciary and indeed the Executive.
Let’s start with an overview of the current legal framework. It offers a mix of...
...global and regional conventions (there are about 40 and these include the Convention on Biological Diversity, UN Framework Convention on Climate Change, Convention on International Trade in Endangered Species, Convention of Migratory Species, Aarhus Convention on public participation in environmental decision making and the Bern Convention on conservation of European wildlife and natural habitats – covering the European continent and parts of Africa) which aim to set global/regional standards and targets, tackle cross boundary issues and provide a means for countries to come together to discuss common issues and to work together to help tackle them. Examples include the CBD Aichi Biodiversity Targets (set in 2010), the recent Paris Agreement and global decisions to tackle specific declines in migratory species (such as vultures) under the CMS and/or specific causes of declines in species, such as the trade in ivory, under CITES.
The downside of these conventions is that they are often not legally binding and those that are, have poor compliance and enforcement mechanisms. The strongest reason to act is therefore to avoid diplomatic embarrassment or to demonstrate global leadership.
...these global and regional conventions are then “transposed” into EU level legislation; in the case of wildlife this has included through EU Directives, Regulations but also commitments through e.g. the EU Biodiversity Strategy. EU legislation is considered particularly robust due to the strong compliance and enforcement mechanisms, such as the European Court of Justice. This means that any country who does not comply, can potentially be taken to court, required to remedy their failure, and if necessary fined until they do.
...Both global and EU legislation has then traditionally been transposed into domestic legislation (both UK and devolved), the UK has also developed and adapted its own environmental legislation such as the Countryside and Rights of Way Act/Marine Act . Domestic legislation is implemented by the executive powers of the Westminster Government and devolved administrations.
So the UK vote to leave the EU and the UK Government decision to leave the Single Market means we are effectively losing that middle “tier” of legislation – which means there will potentially be the following gaps:
- The UK may not be part of a strong regional response to tackle transboundary wildlife and environmental issues, such as marine, migratory species, pollution and climate change.
- The UK may no longer be part of the environmental acquis and therefore any changes to or new Directives and regulations, may no longer apply in the UK.
- The UK will no longer be bound by Article 191 of the Lisbon Treaty which specifies that environmental protection objectives should be guided by the ‘precautionary’ and ‘polluter pays’ principles
- When EU-derived legislation is contravened, we will not be able to take the UK to the European Court of Justice upon whom we have relied to secure both justice and remedy.
So why is this latter point so important?
Let me explain. The RSPB is not a litigious organisation – we’ve only ever mounted 8 judicial reviews in our history. However, JR does represent an essential mechanism of last resort and we value the process for that reason.
Here are three examples which show how the RSPB has used the domestic and European judicial systems sometimes in combination and sometimes separately...
...Lappel Bank was an internationally wildlife important site in the Medway which was destroyed to create a car and cargo park adjacent to the Port of Sheerness. We challenged the decision and the UK judiciary referred the case to the ECJ who concluded that it was wrong for a Member State to take economic considerations into account when notifying a site and that compensatory habitat was needed to replace what was lost
...On the Ribble, we challenged the then Secretary of State’s decision to all cull 25% of the herring gull and lesser black-backed gull population to reduce conflict with BAE Systems testing. We lost but won on appeal when the judge held the Secretary of State had misinterpreted the conservation objectives of the site by saying that the cull would not adversely affect the integrity of the SPA
...While not a judicial review, we did mount a EC complaint over Natural England’s decision to consent burning on peatlands in a Natura 2000 site. As a result of evidence we produced, the Commission is currently urging the UK to stop burning of blanket bog in N2K sites. Failure to comply would mean that the care may be referred to the ECJ for determination and potentially fines.
Our experience suggests that the domestic courts have important roles to play in environmental governance but are often insufficient on their own to ensure effective implementation and enforcement of environmental law. In particular, judicial review is too narrow in terms of scope and remit (usually focusing on due process), too restrictive in terms of access (including costs), and too limited in terms of remedies and sanctions. The system does not compare to the existing arrangements within the EU, with no appointed overseer taking those actions.
John Markham's image of a lesser black-backed gull
So what can we do?
1. Increase international ambition
- It is important to note, that the UK’s decision to leave the EU does not affect the UK’s obligations to the various international agreements (such as the CBD, UNFCCC, CMS etc). All of which the UK has signed up to as a country in its own right. The UK is still bound by them all.
- However, following Brexit, the UK will no longer operate through the EU bloc. This will come with both potential advantages (ability to forge new alliances with other progressive nations e.g. with Norway, Switzerland, Japan etc) and some obvious disadvantages (less influence on our own, than as part of the EU bloc).
- The Conservative Party manifesto and new UK Government have been clear about their need to continue to show global leadership, including on climate change, marine issues and the protection of sites and species.
- The Aichi Global Biodiversity Targets, which were set in 2010, are due to expire (and in large part to be missed) in 2020. A new global biodiversity framework is needed and as a world leader in biodiversity science and conservation, the UK has the opportunity to demonstrate global leadership in setting a bold and ambitious new agenda, and then leading in its effective implementation.
- As demonstrated with climate change, as science underpinning the need for action grew, so has the ambition so much so that the Paris Agreement now includes an aspiration to keep global temperatures within 1.5 degrees C above pre-industrial averages. On biodiversity, there is an emergent debate about how much land and sea should be protected to prevent extinctions. While we currently have targets for 17% of land and 10% of sea, some, such as EO Wilson, are now arguing for much larger targets. Irrespective of whether you agree that half the earth should be set aside for wildlife to prevent extinctions, it seems inevitable that with global biodiversity continuing to decline, only by ratcheting up both ambition and implementation of these global conventions, will we have a chance of reversing the declines
2. Strengthen regional and domestic legislation
- Increased international ambition needs increased regional and national accountability and enforcement mechanisms. An international commitment will only be reached if the individual countries signed up to that commitment all play their part, knowing there are robust enforcement mechanisms if they do not.
- Given the glacial pace of new designations and the struggle to establish measures to improve the environmental value of land outside of protected areas, my conclusion is that focus must been better implementation and enforcement but it is likely that over time the existing legal regional framework will have to be bolstered to respond as global ambition ratchets up. This applies to the Bern Convention and EU environmental acquis but is clearly more important domestically once the UK leaves the EU.
- In a post Brexit world – we will be faced with two choices on these issues – continue, in some way, to be part of a wider regional response (for example to remain, in some way, part of the environmental acquis, or an European wide biodiversity framework, even though we are no longer part of the EU) or strike out alone.
- The latter will require us to look at other countries (who are not part of the EU) but who are global leaders in environmental protection, such as Norway and Switzerland, to learn lessons from them about how we could do this well.
3. Be prepared to challenge decisions which seemingly undermine existing commitments made under global conventions, or threaten our wildlife
- In the absence of the ability to take the UK to the European Courts when they do not comply with environmental legislation, we will need to develop new levers to protect our wildlife and consider other countries methods such as and the Land and Environment Court of New South Wales, with a jurisdiction to hear merits reviews, judicial reviews, civil enforcements, criminal prosecutions and civil claims about planning, environmental, land, mining and other legislation,.
- But we will also need to think creatively about what our role as civil society organisations are going forwards in this regards and protect and improve society’s involvement in environmental decision making including when necessary access to justice that is not prohibitively expensive.
Which leads me to explain how we have been responding to Brexit.
The NGOs have formed Greener UK to ensure Brexit works for the environment. We have agreed that we need to be better organised than ever before and are also working with NGOs across the UK, and those working in the other EU 27 Member States (especially the Republic of Ireland). As nature and the threats it faces know no boundaries, we need greater cooperation and want high environmental standards across Europe.
Here are six areas where Greener UK will be devoting time and energy. We shall work together to...
This is a massive agenda and I do not underestimate our ability to influence the legislature to meet these objectives, yet we are going to give it our best shot and ensure politicians use their voices for nature. It is what our millions of supporters expect.
The future of farming policy outside of the European Union is rightly attracting a lot of attention and some themes are beginning to emerge.
First, it is clear that the UK Government wants reform. The new Secretary of State for Environment, Food and Rural Affairs, Michael Gove said on Friday that “the CAP... encourages patterns of land use which are wasteful of natural resources and often intrinsically poor value rather than encouraging imaginative and environmentally enriching alternatives”.
The UK vote to leave the European Union is an opportunity to overhaul farming and land use policy especially as agriculture covers 75% of the UK and is the biggest driver of decline in populations of UK species.
Second, it’s clear that the UK Government wants public money to used to deliver things that the public will wants/needs. Mr Gove said “this Government has pledged that when we leave the EU we will match the £3 billion that farmers currently receive in support from the CAP until 2022. And I want to ensure that we go on generously supporting farmers for many more years to come. But that support can only be argued for against other competing public goods if the environmental benefits of that spending are clear.” He went on to say “we need to take the opportunity that being outside the Common Agricultural Policy will give us to use public money to reward environmentally-responsible land use” and“understanding how to create and protect habitats should be as much a part of good farming as understanding the latest crop and soil science.”
Lake Vyrnwy (Eleanor Bentnall rspb-images.com)
Our work with farmers has shown that well-designed, well funded agri-environment schemes can help recover farmland wildlife. This week, at the Royal Welsh Show (which is where I am today), we launched as part of Wales Environment Link, ‘A Sustainable Land Management vision for Wales’ (here). This includes the recommendation for a new Sustainable Land Management Contract that supports land managers to restore nature and manage natural resources soundly. This chimes with thinking from the CLA who also promote a Land Management Contract concept. So, there is emerging consensus that environmental public goods provide the central logic for public investment in the countryside.
This all sounds good, but there are at least a couple of bear traps.
First, emerging farming policy must be made to work for all parts of the UK. Given the current devolution settlement, there is a a clear need for cooperation between the governments of the UK after we leave the EU. This should mean the UK Government engaging with the devolved administrations, and developing a shared approach through consensus.
Second, we need to think about how future farming policy might affect different parts of the farming sector. Michael Gove said that “ support for farmers in areas like the Lake District, upland Wales or the Scottish borders is critical to keeping our countryside healthy. Indeed, whether it’s hill farmers or island crofters, or those running small family farms in England and Northern Ireland, there is a need to ensure that the human ecology of rural areas is protected”.
The RSPB cares about what happens to our rural communities. Many of our staff and volunteers live and work in them. We think is vital that a future policy rewards those High Nature Value farming systems that currently get the worst deal, despite delivering the most from an environmental perspective. This may mean maintaining current farming practices and rewarding them accordingly for what they provide.
Yet, in other areas, we need to find a way to influence those that are locked into environmentally unsustainable farming systems. Here, we need the State to think creatively to help these farmers adapt to benefit from new incentives that might reward protection of environmental goods and services (such as storing water to prevent flooding or restoring habitat to provide clean drinking water) or help them diversify their businesses so they are no longer reliant on a form of farming that damages the environment.
It is refreshing that farming policy is now subject to intense debate and I hope that the frame of this debate remains broad: to deliver a vibrant farming community that provides healthy food while restoring the farmed environment.
RSPB England Director Chris Corrigan discusses why we should get along to Hen Harrier Day this year.
Over the weekend of 5-6 August (and today for anyone lucky enough to be visiting Mull), Hen Harrier Day events will be happening around the country.
In my new role as RSPB Director for England, the desperate plight of this magnificent moorland bird of prey is of great concern but I take great heart that a growing number of people are united in their desire to see more hen harriers in our uplands and an end to the illegal killing which is holding back their recovery.
We hope you will visit a Hen Harrier Day event (with a friend!) and meet like-minded people who care passionately about our birds of prey. This is the fourth year that volunteers from the Birders Against Wildlife Crime are organising events across the UK to highlight the plight of the hen harrier and celebrate this ‘ghost bird’ of our moorlands.
The RSPB is happy to be supporting Hen Harrier Day and will be hosting events at our Rainham Marshes, Arne (I will be here with Chris Packham), and Loch Leven reserves. There will be some great activities to get involved in and talks from passionate hen harrier supporters.
For me, the saddest thing about the current hen harrier situation is the lack of recent breeding success in Bowland. This part of Lancashire used to be England’s breeding stronghold for the bird but there hasn’t been a successful nesting attempt here since 2015.
Although I have spent my RSPB career in South East England I was brought up in East Lancashire. I have many special childhood memories of seeing wildlife there. Counting dippers from my school bus and finding a migrating dotterel are two particular highlights, but easily my most special experience was a wonderful unexpected encounter with displaying hen harriers over Bowland. This would have been in about 1980, the year in which there were 39 hen harrier nesting attempts in Bowland, a number which seems unimaginable now less than 40 years later.
I feel so lucky to have seen this wonderful bird of prey, which breeds on heather moorland in some of our remotest upland areas. Here they feed on other birds and small mammals but despite full legal protection, hen harriers have long been a target for illegal killing because they can sometimes also eat red grouse.
Driven grouse shooting is an intensive form of shooting, which requires large numbers of birds so moorland managers are inevitably under pressure to maximise the numbers on an estate. This leads to some stepping outside the law to kill birds of prey in an attempt to boost the numbers of grouse.
There are many people who would like to see an outright ban on driven grouse shooting and this is understandable, faced with evidence like this and this. Meanwhile, many in the driven grouse shooting industry remain focussed on seeking guarantees that they will be able to control hen harrier recovery. But despite voluntary initiatives which promised change from the industry, these have failed to stop the killing of birds of prey like the hen harrier, or deliver the crucial improvements needed for other upland wildlife and protected habitats.
For this reason, the RSPB wants to see licensing system introduced to govern driven grouse shooting. We think a fair set of rules - underpinned by law - is needed so that there are effective measures to stop illegal and unfair practices. This would target and penalise only those landowners who fail to meet necessary standards or step outside the law and kill protected species.
We think licensing could protect hen harriers and their upland home, whilst also helping those operating lawfully to distance themselves from illegal practices, which are increasingly bringing driven grouse shooting into disrepute and threaten the industry’s long term future.
Three months into my new role, one of my top priorities is to return the hen harrier to the uplands of northern England. I doubt it will be a quick fix but the RSPB is relentless in the pursuit of protecting our most special wildlife. Over 100 years ago we were founded by a group of women who fought against the feather trade which was driving declines in egrets and other amazing birds. That spirit remains at the heart of the RSPB and we will campaign with equal vigour on behalf of the hen harrier.
Hen Harrier Day carries a simple message: stop killing hen harriers (#StopKillingHenHarriers) and we hope everyone will agree how important this is for hen harriers, but also so future generations will get to witness this marvelous skydancing ‘ghostbird’ of our moorlands.