Species conservation – The chosen few

Fashions in environmental issues come and go. Current areas of social and political environmental concern are the health aspects of environmental protection, particularly in relation to air pollution and climate change; the natural world has taken a back seat. The prospect of the United Kingdom’s exit from the European Union has focused political attention on procedures for environmental governance, including the setting of environmental standards and principles. ¹ Nothing in the draft policy refers specifically to nature conservation. This should not be taken to mean that there is broad satisfaction with nature conservation law and there is every probability that a future government may wish to review the present legal framework. This would provide an opportunity to consider the appropriateness of species protection measures and the selection of species chosen to enjoy such protection.

Species protection has been justified for a number of different reasons. In the nineteenth century the Sea Birds Preservation Act 1869 was passed to protect listed sea birds from shooting and egg collection during the breeding season. Similarly, outrage at the trade in bird feathers for millinery and fashion purposes led to the Importation of Plumage Act 1921, which was promoted by what is now the Royal Society for Protection of Birds. There have been several bird protection Acts over the years, but the foundation for present-day measures in the Wildlife and Countryside Act 1981 and the EU Birds Directive can be traced back to the Protection of Birds Act 1954. This provided protection for species of bird, unless excepted, and gave special protection to those listed in a schedule. The desire to protect all birds has a long history. As early as 1872, during the second reading of the Wild Fowl Protection Bill, which was designed to extend the sort of protection provided under the Sea Birds Protection Act to a longer list of species, it was ‘regretted that instead of giving protection to certain types of birds, the Bill did not in the first instance include all birds; and then, if it were deemed necessary, to make exceptions’. ² The original motive of protection for vulnerable species against persecution and undesirable trade did not then, and does not now, apply to all birds. So why are they all covered? One reason may be their alleged usefulness, as proposed in the second reading debate. ³ The popularity of bird watching as a hobby and the growing body of amateur ornithologists adding to the scientific knowledge of birds was probably also significant. ⁴ Leaving aside pests and game birds, it would have been a brave politician who tried to select those species to be listed and those to be cast aside.

No other group of animals receives this gold-plated treatment. The nearest group is plants. The Conservation of Wild Creatures and Wild Plants Act 1975 provided the first ever protection for plants and made it an offence to uproot any plant without authorisation. As with birds, there was additional protection for listed species of rare plants. This Act was overtaken by the Wildlife and Countryside Act 1981, introduced to meet commitments to the Berne Convention, ⁵ but the plant protection measures remained largely unchanged. The original list of rare species ⁶ included all but one of those listed in the 1975 Act plus a further 41 species; most were flowering plants but there were four ferns. The latest version contains 173 species with the addition of a large number of lower plants. ⁷ The EU Habitats Directive provides strict protection but only to listed species, just nine of which occur in the UK. ⁸

The UK’s non-avian fauna is treated far less generously. In the second reading debate in the House of Lords on the 1975 Wild Creatures and Wild Plants Protection Bill, Lord Cranbrook noted that, with few exceptions, most other animals have no protection at all. He informed the House that the purpose of the Act was to ‘provide complete protection to any species so rare that its status as a British wild animal is endangered by any action designated as an offence’. ⁹ This implies that species were selected for protection on the basis of their scientific status. Introducing the debate on the Bill in the Commons, Peter Hardy observed that it relied on scientific advice, on hard evidence, not on emotion. Although it was based on the Protection of Birds Acts, he argued that it was right to broaden the approach ‘on a more scientific and logical basis, not on the emotional approach which has previously applied’. ¹⁰ There was no thought of a blanket coverage of protection for all animals. One reason for this might have been the impossibility of getting such proposals through Parliament. The farming community regarded many animal species as vermin and were not sympathetic to their conservation. It is noteworthy that there was no offence under the Act where a prohibited action was ‘necessary for the purpose of preventing serious damage to land, crops, poultry or any other form of property’. ¹¹ Similar wording is contained in the Wildlife and Countryside Act 1981 and licensed harm or destruction for these purposes is permitted under the Conservation of Habitats and Species Regulations 2017. ¹² Just six species were scheduled in the 1975 Act: two bats, two lizards, a toad and a butterfly believed to be extinct in the UK. The comparable original Schedule 5 in the 1981 Act listed more species including several insects. European protected species occurring in the UK includes all British bats and cetaceans, three terrestrial mammals, two reptiles, three amphibians, one fish and three invertebrates. The gaps in these lists are far from trivial. There is no protection for any of Britain’s small mammals, for example, and the coverage of invertebrates focuses mainly on a few groups of insects.

For each of these species lists, the selection has been based on scientific criteria relating to status, with the emphasis on species that are threatened; species that are regarded as a threat to legitimate activities are largely excluded. In theory, it makes good conservation sense to focus attention on those species that are the most vulnerable. The majority of species are large, relatively easily identifiable and sufficiently well known to have common names. This makes sense in that it is difficult to impose criminal liability on people to protect species they have never heard of, know nothing about and would not recognise in the field. But it does nothing for other more obscure species. The UK Biodiversity Action Plan was designed to address some of these deficiencies. Section 41 of the Natural Environment and Rural Communities Act 2006 required the Secretary of State to publish a list of species ‘of principal importance for the purpose of conserving biodiversity’ and to take reasonably practicable steps to further their conservation. By the time the lists were revised in 2007 there were some 1,500 species listed. ¹³

Even with these additions, the lists are incomplete and are strongly biased by the available evidence. Unfortunately, scientific research is not evenly distributed across the taxa. Research on publications on different South African animals showed that a few species commanded the greatest proportion of scientific effort. ¹⁴ Factors such as threat and commercial interests were partly responsible for directing research but there also seems to be a correlation with size and familiarity; the mean number of papers per large threatened mammal exceeded that number per threatened small mammal by 216 times for example. The same sort of bias appears to carry through into legislation. As Peter Hardy commented in reference to the Wild Creatures and Wild Plants Protection Bill, ‘very few hon. Members would wish to devote a great deal of time,…to introduce a statute for the protection of the smooth snake or a Bill for bats, since these creatures have not the sort of cuddly image enjoyed by many of the animals which Parliament has viewed with affection in the past’. ¹⁵

Within the UK the gaps are predominantly in the invertebrates. This is most obvious with respect to marine species conservation. There are no marine invertebrates in Schedule 5 of the 1981 Act, and strict species protection under the Habitats Directive is limited to a few marine snails, one bivalve mollusc and a sea urchin, none of which is relevant to the UK. But there are also big gaps in coverage for terrestrial species. There are nearly 3,000 British species of plants, ¹⁶ yet only a few hundred are listed for special protection. Even within the insects, there is a bias towards some groups, notably butterflies and moths. There is no protection for flies, for example, despite the fact that there are over 7,000 species in the UK – which is more than the number of mammal species in the world. ¹⁷

So, if the lists are based, as a starting point, on the best available evidence, there is every chance that some species in dire need of conservation effort are being ignored. ¹⁸ Does this matter? Well, that depends on the motives for conservation in the first place. Pride of place in this respect must go to species that attract attention because they are beautiful, especially if they are under threat. In many cases, of course, it is their very beauty that puts them at risk because of the actions of collectors. Empathy plays a big part as well; there are very few us who would relate to the Natural History Museum curator’s view that flies are ‘adorable, cute, wonderful creatures’ and that some of them are ‘a fluffy packet of loveliness’. ¹⁹ Bees, however, we do empathise with to the extent that bee imagery is often used in artwork and fashion. The importance of bees as suppliers of ‘environmental services’ in the form of crop pollination is well known, but no credit is given when flies perform the same role. Maybe it’s the honey that swings the balance!

In conclusion, it seems there can be many different motives for wishing to conserve a particular species. If a species can be anthropomorphised that will undoubtedly help – think of what happened to Gregor Samsa in Franz Kafka’s novella Metamorphosis, where his transformation into an insect gradually leads to his family losing their emotional connection with him and rejecting him. Part of the antipathy is due to fear of disease or damage to property – no one wants to conserve a head louse surely but, as with the flies, this can lead to a whole class of animals being villainised by a few ‘baddies’.

One of the reasons why mammal protection in the UK is so uncoordinated could be attributable to the long-standing conflict between our sense of affinity with a fellow warm-blooded creature and the damage they can cause to livestock, crops and even our health. Social memories are very long, and the black rat has a lot to answer for in term of the Black Death. There was never likely to be a mammal conservation law comparable to the Bird Protection Acts. Where there are specific laws for named mammals, these are generally designed to provide a reasonable balance between species protection and commercial interests (including field sports) or as a protection against cruelty.

The result of over 150 years of species protection legislation has left us with a reasonable framework for protection but with big inconsistencies in the way it is applied to different taxa. This situation was recognised by the Law Commission in its recent report on wildlife law ²⁰ which recommended consolidation. It favoured retaining the system of schedules but recommended that the regular review procedure required for Schedules 5 and 8 of the Wildlife and Countryside Act should be applied to all schedules. The Commission also felt there was a need for more flexibility in the system so that changes to listing could be made quickly where necessary. The recent decline in hedgehog populations in the UK might, for example, benefit from such measures. Disappointingly, the Law Commission avoided consideration of the lists themselves as this was felt to be outside their remit. So, there was no recommendation to balance the treatment of birds with that of other animals.

In some ways the reverse listing enjoyed by birds seems attractive, but in my view, it would be impracticable to extend it to all taxa. Birds are a special case because they are so well known and familiar, with a plethora or identification guides and an army of bird watching enthusiasts. But all the time birds have this special status there is a danger that unlisted species are thought of as less worthy, or even as requiring no conservation effort. Maybe it would be preferably to bring birds down a peg or two so that only the most vulnerable are listed? I can hear the outcry as I write, of course, but that would be no bad thing if it stimulated debate and generated deeper thought on why we want to legislate to protect a particular species. After all, is an earthworm less worthy of our attention than the bird that catches it or the bee-fly less important than the bumble bee?