Nature Conservation. Peter Marren

       4 Conservation Politics: SSSIs and the Law

      I have in front of me a thick volume published by the then Department of the Environment and titled Wildlife Crime: A guide to wildlife law enforcement in the UK (Taylor 1996). Its purpose is to try and sort out the legal labyrinth of wildlife law as it stood in 1996, mainly for the benefit of policemen and other law enforcers. More than half of it is devoted to species – birds and their eggs, badgers, deer, seals and salmon, as well as the trade in endangered species. Lists of protected birds in their various grades and schedules take up seven pages, non-avian protected animals and plants another four. On the face of it, Britain’s wildlife looks well protected. But although protection laws may look like nature conservation, much of them are about animal welfare issues. Kindness to animals is an issue for the RSPCA. Conservationists are more concerned with the survival of populations and species than with individuals. However, the legal benefit enjoyed by our wild animals is decidedly mixed. The law has evolved, rather like the landscape, in an ad hoc way, and the result is chock-full of anomalies. Pat Morris (1993) has pointed out that while it is technically illegal to shine a torch at a hedgehog, you can squash one flat with your car without worrying about prosecution. An antique dealer risks a heavy fine for selling an old coat trimmed with pine marten fur, but the law does not help living martens very much. The badger is an exceptionally well-protected animal, but the Ministry of Agriculture slaughters thousands of them. Contrariwise, in the interests of the environment more deer need to be culled, but no one insists on it and so deer continue to multiply. In practice, the government nature conservation agencies spend remarkably little time on species protection. Unlike the US Fish and Wildlife Service, who carry guns and have the power to arrest, Britain’s wildlife agencies have no special powers of enforcement. They devote far more time to managing species under the Biodiversity Action Plan (see Chapter 11), but until 2000 the Plan had no basis in British law. The really important species laws boil down to two: the Wild Birds Protection Act of 1954 and its subsequent amendments, which protect virtually all wild birds, and the Wildlife and Countryside Act of 1981, which protects a lot of other rare animals and plants, mostly from imaginary threats, like collecting, and, more importantly, protects all species of bat, as if they were honorary birds. It is easy enough to protect a species on paper – you simply declare it protected – but quite another thing to bring a successful prosecution. In practice, most prosecutions are to do with birds and bats. Egg collectors, errant gamekeepers and careless timber treatment companies are the principal targets. Animal smugglers are dealt with under international codes enforced under EU regulations.

      Protecting a species is pointless unless its habitat is protected too. As the law stood until recently, you could convict someone picking rare orchids in a meadow, but do nothing to prevent a developer or farmer from destroying both the meadow and its orchids. Hence, nature conservation in practice is directed at saving the habitat. Most land in Britain is privately owned and dedicated to some sort of productive use that is usually not nature conservation. In 1949, Government was persuaded by the principle that some portion of the land should be set aside for nature in the interests of at least that part of the population which cares about such things. The principle was not new. The Norman kings set aside land for game for their own selfish purposes. And as Professor Smout reminds us, the eighteenth-century enlightenment took the view that while most of the land is destined for agricultural improvement, some of it should be set aside to delight rather than for productive use – ‘most for man, a little for nature’ (Smout 2000). The contribution of twentieth-century conservationists has been to work out where the best spots for nature lie. The next stage is to see to it that these valuable areas are looked after in a way that ensures they stay valuable.

      The Nature Conservancy and its successors evolved methodologies for grading semi-natural land according to its value for wildlife. These were based on attributes such as size (generally the bigger the better), diversity and ‘naturalness’ – based that is, on the quality of the habitat rather than on rare species in isolation. The original idea had been to preserve all the very best examples of woods, heaths, chalk downs and so on as nature reserves. However, that was never going to be enough, so an alternative to direct ownership (or at least proxy management) was needed. From 1949, the Nature Conservancy was allowed to ‘schedule’ any area of land of special interest ‘by reason of its flora and fauna, or geological or physiographical features’. These were (and are) called SSSIs or Sites of Special Scientific Interest. This clumsy term has caused much head-scratching. Here ‘Scientific’ really means ‘nature conservation’ in an adjectival sense. Every now and then someone suggests changing the name, but nothing has ever come of it for fear of adding to the confusion. In any case, until 1981, SSSIs did not amount to very much. The job of the Conservancy was to identify SSSIs, say why they were important and notify them to the local planning authority. In the case of a development requiring planning permission, the local authority would then decide whether to allow the development or refuse it. Of course the local authorities had their own plans and guidelines that were broadly in favour of SSSIs – but ‘the national interest’ always came first, and this could be interpreted in all sorts of ways. Moreover, the most common threats to SSSIs – agricultural improvement or tree planting – did not normally require planning permission. Altogether the Conservancy had been given a very poor hand. It could offer only pennies in compensation, while the ‘improvers’, by way of the Ministry of Agriculture and the Forestry Commission, could offer pounds.