BBS and birds generally

I did my two Breeding Bird Survey Square surveys a little while back.  Both were carried out on gloriously sunny mornings and both were very enjoyable.  There is a smug feeling of being virtuous that one gets from being up early for a purpose, and especially if that purpose is volunteering for the public good, so bird surveys definitely fall into that category. And since I am definitely more of a lark than an owl, being up early comes easy to me.

I didn’t pick up a Cuckoo, or a Reed Bunting or a Lesser Whitethroat on either visit and generally speaking, despite the lovely mornings, birds were a bit thin on the ground although I’m glad that I saw a Yellow Wagtail on my farmland site (above, and it was in that field) as they were missed last year, and I also added Grey Partridge there for the first time in my 14 years of survey (same field).

On the riverside site (above) I was relieved that there were a couple of Sedge Warblers and the habitat looks as though it is recovering from being assaulted last year. But there were no House Martins at the place where I normally see them where I park my car.

After having the fun part of doing the surveys I usually buy myself a coffee from the garage on the way home, and drink it as I do the data entry. It would be wrong to say that that is as enjoyable as the surveying but I completely understand how getting observers to do the data entry, for free, is  an efficient and cheap option.  And only I can read some of my squiggles, and only I can remember what some of them actually meant!

It may sound corny, but it is being part of an enormous team that makes this worthwhile. There are very nearly 4000 squares surveyed these days by 2,800 volunteers like me.  That’s a lot of volunteer effort.  Judging by my experience it is about four hours time spent per visit in travel, surveying, travel (which includes picking up that cup of coffee) and then data entry. And we do that twice a year for each square so that’s roughly 32,000 hours of fairly skilled volunteer labour. At National Living Wage rates that is about £0.25m/year and I reckon we are worth a lot more per hour and we ought to include our donated travel expenses too.  It’s a sizeable input before the costs of data analysis, storage, scheme adminstration, report writing and posting, from which I benefit as a participant, are totted up.

And the latest BBS report came through my door recently too.  It’s a very professional and clear and important publication.  It gets slightly better every year despite the fact that it has been very good for a very long time. Congratulations to all who contribute to its production but I guess especially to Sarah Harris the BBS National Organiser.

When I was sitting in my garden relaxing and reading the BBS report there was nothing that leapt out at me as being surprising – but that is what monitoring is like.  You do it to detect changes – but you don’t know whether or when changes are going to happen.  This BBS report seemed to me to be lacking in surprises but that’s just because nature hasn’t thrown any at us recently.

Having said that, even before I do my second BBS visits, I reckon many bird species’ numbers will be down. That’s how it felt on my BBS squares, that’s how it feels in my birding and that’s the impression I get from other birders.  The beast from the east won’t have helped but it won’t be just resident species that are down a bit, migrants will be down more, I reckon.  My money is on 2018 being a poor year for several species – but the great thing is, if you are shouting ‘rubbish!’ when you read those words then, provided you do a BBS survey where you live (or someone else does), we will know – in about 12 months time.

I’m already longing to read the next BBS report (and I haven’t finished the fieldwork that will go into it yet).

 

 

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Guest blog – Emperor Gove’s New Clothes by Carol Day

Carol Day has worked for environmental NGOs, including The Wildlife Trusts and WWF, for over 25 years. She now works part-time as a Consultant Solicitor for Leigh Day and as a Legal Consultant for the RSPB. Carol was part of the Leigh Day team with whom I worked on our successful legal challenge to Natural England over Walshaw Moor. The views expressed here are her own.

 

Environmental Governance post-Brexit and the Emperor’s New Clothes

By Pearson Scott Foresman – Archives of Pearson Scott Foresman, via Wikimedia Commons

Yesterday’s Guest Blog by Richard Wilson (see here) raised important and disturbing concerns about the Government’s plans for environmental governance post-Brexit. We now have until 2nd August to tell Defra what we think of their proposals to replace the mighty European Commission and the European Court (see the Government consultation here) with a new environmental body. Let me start by saying that just because you say you will be setting a “gold standard for environmental protection” with the creation of a “world-leading, independent watchdog to hold Government to account” doesn’t mean that you actually are. Because when you look at the Government’s proposals, it becomes apparent they have more holes than a rusty colander.

Before we examine what it is being proposed, let’s briefly remind ourselves what we’re losing. The European Commission fulfils a powerful role in developing and progressing new legislation and policy. It monitors the implementation of EU law and can (either of its own volition or following a complaint from a member of the public or an NGO) refer cases to the European Court. The Court operates as a supreme authority, to which Member States can refer cases for interpretative rulings and whose judgments bind domestic courts. The European Court typically exerts a more intense scrutiny of the issues (known as proportionality) than UK courts and has the power to impose powerful sanctions in the form of daily fines. In my experience, it is infraction proceedings by the EU that set the wheels moving within Government Departments.

By Vilhelm Pedersen (1820 – 1859) [Public domain], via Wikimedia Commons

So, turning to Defra’s proposals. The Government has pledged that we will be “the first generation to leave the environment in a better state than that in which we inherited it”. In order to achieve that, it has published a 25 Year Environment Plan (for England), which will be complemented by a new statutory policy statement on environmental principles and a new environmental watchdog. The Statement on Principles and the new Watchdog will be created through an Environmental Principles and Governance Bill to be introduced in Parliament in the Autumn.

A number of pivotal environmental principles (such as the precautionary principle and sustainable development) currently form part of the principal Treaty on which the EU is based (the TFEU) and are framed in the EU Treaties. They therefore underpin the development of policy and legislation by the EU institutions and feed through into EU legislation. For example, the precautionary principle is included in the Habitats Directive, the REACH Regulation and the Invasive Alien Species Regulation. Similarly, the polluter pays principle is referred to in the Water Framework Directive. The Government intends to replace its Treaty obligations with a policy statement (with a status similar to planning guidance), which itself will be subject to the proportionality principle in light of the need to “balance environmental priorities alongside other national priorities” (for which read compromise). This doesn’t sound like a very gold standard start to me.

The consultation paper claims that the overarching goal in establishing a new environmental body is to bolster the UK’s environmental governance framework as it leaves the EU. Its three main objectives will be: (1) to provide independent scrutiny and advice on the implementation of environmental law and policy; (2) to receive and consider environmental complaints and concerns from the public; and (3) to enforce Government delivery of environmental law. The Consultation invites views on whether the new body should regulate all public bodies or confine attention to central Government (no prizes for guessing the latter is the preferred option). In the main, the new body will achieve conformity by issuing non-legally binding declarations of non-compliance. In cases of strategic importance or national significance, the body will be able to issue advisory notices requesting compliance, with recourse to binding notices and have the power to agree environmental undertakings (akin to current domestic civil sanctions provisions such as compliance notices, restoration notices and stop notices). And what happens if central Government doesn’t comply with the notices or undertakings? Well, that’s it. No court, no hearing, no fines – nothing. This is a watchdog with a narrow remit and no teeth.

At this point, the consultation paper highlights the UK’s “vibrant democracy and robust legal systems” – by which I assume they mean people can fall-back on Judicial Review (JR). Now, don’t get me wrong, JR can be effective –witness Walshaw Moor (see here) – but it is a wholly different beast to the EU complaints process and recourse to the European Court. JR is risky, expensive and a blunt instrument, in that it is largely concerned with procedural unlawfulness. Prospective claimants are often forced to scrabble around for a defective consultation process or a misinterpretation of policy as they cannot get at the issue they really want to address – the merits of the decision. Contrast this to the EU complaints process – which is admittedly slow – but is free from costs risk for the complainant and can yield far-reaching results. I drafted two complaints to the Commission in my time with WWF – one (ironically) on the prohibitively high cost of taking legal action in the UK, which (thanks to combined efforts) ultimately resulted in a new Aarhus costs regime for environmental cases and the other on the UK’s failure to designate Special Areas of Conservation for the harbour porpoise (a suite of sites is underway). It is abundantly clear to me that the UK would not have moved on either of these issues had the Commission not embarked on infraction proceedings and referred the cases to the European Court. Under the proposed regime, a public complaint will usually result in a non-legally binding declaration of non-compliance and, at best, a binding notice but no remedy. This doesn’t sound like a gold standard deterrent either.

And just as our complaints won’t end up in a court, the domestic courts won’t have anywhere to refer their legal questions of interpretation to either. At present, a national court or tribunal can refer a question of EU law to the European Court for a preliminary ruling so as to enable the national court to decide the case before it. This process has resulted in some very important judgments in the UK including cases brought by Fish Legal (which confirmed that water and sewage utility companies are “public authorities” for the purposes of the environmental information regulations) and the case of Edwards, which also concerned the cost of taking legal action in environmental cases in the UK.

The failure to address (or even mention) the loss of these pivotal functions of the European Court and the legislative and policy powerhouse of the Commission is nothing less than a cavernous justice deficit. But perhaps the most astonishing thing is that the Government appears to think that if they big the proposals up enough we may not notice.

In her speech at the London Wetlands Centre in January 2018, the Prime Minister confirmed that the Government would use Brexit as an opportunity to strengthen and enhance our environmental protections – not weaken them. This consultation paper similarly identifies the opportunity to set a gold standard for environmental protection. So, let’s be clear – the expectation that a new Watchdog can, and should, be expected to do a better job of protecting the environment than the Commission and the European Court is not ours, it is the Government’s. To meet that expectation, we need much more than is currently on offer. We need environmental principles with a legislative basis, robust environmental duties on public bodies, a new Watchdog with the remit, powers and resources to refer public bodies to court where necessary and a reform of the judicial process.  Whether such cases end up in the High Court or a bespoke environmental court, there is work to be done around timescales and costs for bringing legal action, the intensity of review applied by the court and the remedies available.

But most importantly, we need to send a collective message to Defra before August that these proposals for environmental governance are nowhere near equivalent, let alone gold standard.

 

Leigh Day and Matrix Chambers are running an event on post-Brexit Governance on 24th May 2018 – further details here and below.

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Please tell Labour to get a nature conservation policy

The Labour animal welfare plan is a pretty good document. It is open for consultation until the end of the month – please send in some comments – I have!

I welcomed the plan – which includes some conservation measures as well as primarily welfare measures. That’s good.  But Labour does need a nature conservation policy as well as an animal welfare policy. They are needed to stop the bleeding away of votes to the LibDems and Greens in some of those rural marginals which Labour needs to win if it is to become a government. The last general election involved the Tories gifting Labour the environment and animal welfare as free issues and votes for nothing.  That won’t happen again.

But even if there weren’t votes in these issues, which I believe there are, if Labour is to govern then it had better get its act together now.

One suggestion I made would be to include a ban of driven grouse shooting in its manifesto.  But at this stage I would suggest that highlighting the need for a Labour view on nature is more important than attempting to decide what that view should be.

 

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Hen Harrier Day/Weekend

 

The dates for Hen Harrier Day/Weekend are fixed for 11 and 12 August 2018.  How Glorious!

A few people have contacted me about events but I’m the wrong person to ask as it is Birders Against Wildlife Crime who have coordinated things for the last few years.  Keep an eye on this website for details although to be fair, there aren’t any there at the moment!  And there isn’t a contact email address either!  I’m sure that will be sorted out soon.

I hope so, as people are beginning to ask me to attend HHDay events and I don’t really know what to say as I don’t know what the range of events will be or where I will be most useful (or even which place is easiest for me to get to).  I won’t be beginning to make decisions on where I’ll be on those days until I get back from my travels which is nominally the end of June.

I have heard of a couple of events which may not be on the BAWC radar, or each other’s radar, which are planned for the Saturday and will take place in the same, relatively large, county.  That doesn’t seem very coordinated, I’m afraid.

 

 

 

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Guest blog – The Walshaw Moor blogs (1-68) by Richard Wilson (Wuthering Moors 69)

Richard Wilson is an independent professional ecologist with just under 20 years experience. When in the field, he specialises in invertebrate and avian ecology, with a smattering of botanical surveying thrown in for good measure. His background as a consultant has led to a keen interest in EU and UK law in the context of nature conservation. He is a full member of the Chartered Institute of Ecology and Environmental Management, a Chartered Environmentalist through the Society for the Environment and a Member of the Royal Entomological Society. He can be followed on Twitter (@ecology_digest)

 

The Walshaw Moor Blogs (1-68): consultation and implications

Back in March 2015, I wrote a guest blog, ‘In Favour of the EU’ as a rebuttal to the alternative guest blog by Richard Wayre on ‘The case against the EU’. In my blog, I argued that remaining in the EU would be a much better course of action for the environment than leaving.  17 million people disagreed with me (and others) and a little over three years after my blog and just under two from the decision to leave, we are within touching distance of the departure gate.

Throughout this time, Mark has been campaigning on an issue related to Walshaw Moor above Hebden Bridge in Yorkshire that is geographically quite close to where I live. This has been brought to the fore through the commencement of legal action, which dramatically resulted in a favourable outcome for nature conservation and which resulted in Natural England being forced to concede defeat before any court appearance.  Mark’s 68th blog on this subject, setting out the background prompted me to submit this guest blog as its timing, presumably coincidental, arrived almost concurrently with a consultation issued by Defra on Environmental Principles and Governance after Brexit.

Like many environmental professionals, eyebrows were raised when Michael Gove was appointed Secretary of State for the Environment on the 11th June 2017.  Eyebrows were hoisted even higher when he started uttering comments that when listened to again, seemingly suggested he had the environment at heart.  As part of these commentaries, Michael made reference for the need to create a robust, advisory body to hold Governments to account. A sort of Nature Conservancy Council-cum-English Nature-cum-Natural England type of organisation with teeth…that bite. Nature conservation NGOs were agog with the direction he was wanting to take the UK post-Brexit.

Part of leaving the EU will inevitably require changes to how we address environmental issues; be they food production, nature conservation (biodiversity), air pollution, water quality and so forth; how to regulate these; how closely UK law should align with EU law on leaving and going forward; and who or what should oversee their implementation.  This latter point is the genesis of this short blog, which is the substantive element I discuss below.

As part of the post-Brexit discussions, Defra has mooted the need for an overseeing body or organisation that would hold Government to account.  Currently, this is the European Court of Justice (ECJ), which has sufficient dentition to impart a painful nip by way of financial sanctions on any Member State that fails to implement the relevant Directives.  And remember that the ECJ is moving towards the doctrine of ‘direct effect’ in the context of implementing Directives. In other words, where a Member State has not fully, or accurately (sufficiently), transposed in to domestic law the requirements of the Directive (i.e. the ‘journey has stopped short’), those provisions not transposed will be deemed to have been.

Last week, Defra published the awaited consultation on this overseeing body and on first and second appraisal, Michael Gove’s earlier warm sentiments towards the environment are revealed in stark contrast to what many commentators were heralding as a welcome change from previous Defra Ministers.  In my opinion, the warm words and initial actions, albeit very tokenistic and generally de minimis actions with regards to plastic pollution, have evaporated.  The consultation if it proceeds as written, may as well be a death certificate to the environment.

The main document fully supports my justification for remaining in the EU. Two examples of key drivers that underpin environmental due diligence (the precautionary principle and the polluter pays principle), whilst being transferred across to UK domestic law via the EU Withdrawal Bill (paragraph 26 of the Defra consultation document), will seemingly be expunged or significantly altered shortly afterwards. A cynical reaction, but not a surprising one in my view, but allowing the current Government to live up to its promise of transferring EU law across when we leave. On these and other principles, the consultation document expresses the Government’s intention (paragraphs 28 to 42) that they will be amended; and not for the better. Thus, it seems we can expect divergence from the EU acquis to a greater or lesser extent post-Brexit; the details of which we will need to wait until Autumn 2018 when the new Environmental Principles and Governance Bill is published.

What persuaded me to write this Blog in response to Mark’s Walshaw Moor campaign is the consultation’s text starting from paragraph 77 but particularly between paragraphs 95 and paragraphs 108. Paragraphs 77 to 94 sets out the status quo; paragraphs 95 to 108 what the Government’s intentions are; and it is the latter which is particularly pertinent to the Walshaw Case; and indeed any future case of equivalent significance.

As Mark points out, one of the drivers forcing Natural England’s hand is the case before the European Commission where it may take infraction proceedings against the UK Government over burning on a European Protected Site. The penalties if the UK Government are found wanting can be financially significant.  Therefore, I would like to draw attention to paragraphs 102 to 104 of the new consultation document. The Government’s intention is to restrict this new body, to issuing a non-binding advisory to the Government. In other words, for almost all examples of where a Government diverges away from environmental law and good governance, Defra are proposing that the ‘teeth’ will be nothing more than a communication, most probably in the form of a letter, asking (not requiring) the Government to think again.

Whilst there is a nod towards more meaningful sanctions (but only a binding letter), judging from the overall tenet of this section of the consultation, the Government are very hesitant in offering even this. There seems to be no comment on any further meaningful sanctions that could be applied.

Therefore, it goes without saying that after we leave the EU, and assuming the new Environmental Governance Bill becomes law in broadly similar terms as presented in this consultation, the scope to challenge poor environmental due diligence is severely and in my opinion, catastrophically diminished. Indeed, it would be pointless to pursue such an action, other than to make a pyrrhic point, as the greatest sanction that would in all likelihood be imposed would be a non-binding letter, asking (pleading?) with the Government to change direction, which would, in my view, fall on deaf ears.  In my opinion, this is an indirect consequence of what the Treasury anticipates will befall this country in economic terms once we leave the EU.  Regulation comes with a financial cost to business and the public purse, be this paying for environmental due diligence before planning to avoid, mitigate and compensate for habitat and biodiversity impacts; or for example, controlling emissions to reduce or prevent noxious discharges in to the environment. My interpretation is that post-Brexit, the economic pressures on UK businesses are anticipated to be sufficiently severe that relaxation of environmental responsibilities, which businesses are generally accepting, is perceived by the Treasury to require offsetting to compensate for this predicted downturn. This would be a very damaging short-term view that would have up to catastrophic effects on the UK’s, and quite possibly the EU’s environment (air pollution and wildlife don’t respect political boundaries or referendum results).

So returning to Walshaw, were this played out again after we leave the EU, the lack of any organisation that could impose a meaningful sanction removes the threat or motivation to change or alter the mechanism which is being challenged.  In this scenario, would Natural England have the will to even engage with the landowner? With no meaningful sanction available, the landowner could, in my opinion, continue with a damaging practice (as viewed through the lens of EU law and science) without risking redress.

Mark’s victory was a victory…but unless the consultation results in a significantly different outcome (or Brexit abandoned), the future looks bleaker; and would not leave the environment in a better place.  Indeed, I think we will very likely have crossed the environmental Rubicon.

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