Legislation for protecting wild birds

[Sophie Streeter]

Following on from the recent discussions the Countryside and Wildlife Act 1981 is not the only legislation for protecting birds in the UK which gives protection for ALL wild birds.

There is also the European Conservation of Habitats and Species Regulations 2017 - which following Brexit the UK implemented to Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019, this UK piece just lists to the EU law - and therefore the base legislation is still the EU one.

Please note these references - my highlighting

The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019

PART 3

Amendments to the Conservation of Habitats and Species Regulations 2017 - The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019

3A.—(1) The Habitats Directive is to be construed for the purposes of these Regulations as if—

(a)

any reference to “the European territory of the Member States to which the Treaty applies” included a reference to the United Kingdom;

(b)

any reference to “Member State” or “Member States” included a reference to the United Kingdom;

2) The new Wild Birds Directive is to be construed for the purposes of these Regulations as if—

(a)

any reference to “the European territory of the Member States to which the Treaty applies” included a reference to the United Kingdom; and

(b)

any reference to “Member State” or “Member States” included a reference to the United Kingdom.

6A.—(1) The appropriate authority must, in co-operation with any other authority having a corresponding responsibility, manage, and where necessary adapt, the national site network, so far as it consists of European sites, with a view to contributing to the achievement of the management objectives of the national site network.

(2) The management objectives of the national site network are—

(a)

to maintain at, or where appropriate restore to, a favourable conservation status in their natural range (so far as it lies in the United Kingdom’s territory, and so far as is proportionate)—

(i)

the habitat types listed in Annex I to the Habitats Directive; and

(ii)

the species listed in Annex II to that Directive whose natural range includes any part of the United Kingdom’s territory; and

(b)

to contribute to ensuring the survival and reproduction in their area of distribution of—

(i)

species of birds listed in Annex I to the new Wild Birds Directive which naturally occur in the United Kingdom’s territory; and

(ii)

regularly occurring migratory species of birds not listed in that Annex which naturally occur in the United Kingdom’s territory.

Amendment of regulation 40 (protection of wild birds, their eggs and nests)

55.  In regulation 40—

(a)

in paragraphs (5)(c) and (6), for “relevant EU instrument”, substitute “relevant retained EU law”;

The following are direct paragraphs from the EU law with my highlighting/emboldening

The Conservation of Habitats and Species Regulations 2017  -The Conservation of Habitats and Species Regulations 2017

Protection of certain wild animals: offences

43.—(1) A person who—

(a)

deliberately captures, injures or kills any wild animal of a European protected species,

(b)

deliberately disturbs wild animals of any such species,

(c)

deliberately takes or destroys the eggs of such an animal, or

(d)

damages or destroys a breeding site or resting place of such an animal,

is guilty of an offence.

(2) For the purposes of paragraph (1)(b), disturbance of animals includes in particular any disturbance which is likely—

(a)

to impair their ability—

(i)

to survive, to breed or reproduce, or to rear or nurture their young; or

(ii)

in the case of animals of a hibernating or migratory species, to hibernate or migrate; or

(b)

to affect significantly the local distribution or abundance of the species to which they belong.

Directive 2009/147/EC of the European Parliament and of the Council - Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (codified version)

Article 1

1.

This Directive relates to the conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States to which the Treaty applies. It covers the protection, management and control of these species and lays down rules for their exploitation.

2.

It shall apply to birds, their eggs, nests and habitats.

Article 5

Without prejudice to Articles 7 and 9, Member States shall take the requisite measures to establish a general system of protection for all species of birds referred to in Article 1, prohibiting in particular:

(a)

deliberate killing or capture by any method;

(b)

deliberate destruction of, or damage to, their nests and eggs or removal of their nests;

(c)

taking their eggs in the wild and keeping these eggs even if empty;

(d)

deliberate disturbance of these birds particularly during the period of breeding and rearing, in so far as disturbance would be significant having regard to the objectives of this Directive;

(e)

keeping birds of species the hunting and capture of which is prohibited.

I am not an expert in law/this, so if anyone thinks I have misinterepreted, please do say!  

In addition another snippet of information - on the National Wildlife Crime Unit website it lists the following:

Disturbance

• Are trees/hedgerows that may have nesting birds in them being cut down?
• Is someone damaging an active bird nest?

As we know the nest isn't just the physical material the bird put together - it is the place the nest is in also that enables the nest to be there - i.e. the caivity, box, tree, hedge - as clearly indicated by the line from the NWCR. The site ddoes not list this part specific to Scotland.  If the police/wildife crime officer take the literal meaning of the nest as the bird's material - anyone would be able to take a bird box down that was in active use and throw it away as long as they didn'ttouch th nest inside - this is clearly not the intentiaon of the law, or the NWCR line re hedges.

I hope this will help with anyone in areas where the police/wildlife crime officers are not fulfilling their obligations to protect nesting birds.

Best wishes,

Sophie

Sent from Outlook

[Laurinda Luffman]

Hi Sophie

 

Good to draw people’s attention to this.

 

Just to add, the EU legislation only relates to nationally designated places – like Specially Protected Areas and NNRs – so wouldn’t cover Swifts nesting in individual properties/towns outside of those, according to Mark Thomas.

 

Laurinda

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[Heidi Collishaw]

Thanks Sophie for the clear and reassuring guidance about the law pertaining to nesting birds.  I will be saving this for quick reference 😁.

Regards

Heidi

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[Graham Knight]

Hi Sophie

Thank you for sending this. I have been working my way through it and unfortunately what I have seen so far doesn't help protect Swifts over and above what is in the WCA 1981.

As I read it, the Wild Birds Directive requires EU member states (and the UK as it has chosen to retain the directive after Brexit), to have in place laws to protect wild birds. It doesn't in itself create offences, but requires legislation such as the WCA to be in place.

Further, regulation 43 of the 2017 regulations only applies to animals listed in schedule 2. This is a fairly short list including bats, otters, various turtles and some other species, but no birds are listed on it.

My view on the WCA 1981 is clear, it must by inference include any blocking of nest sites that would result in destruction of the nest, which I know is the view of the RSPB. It seems however, that there are varying interpretations by police forces across the country, and this is something that really needs to be addressed. 

An amendment to the WCA would be ideal to include the phrase "blocks access to", or even the Scottish version of the Act which adds the phrase "or otherwise interferes with". Unfortunately amendments to legislation are extremely difficult.

Probably the most important thing when nest sites get blocked is actual evidence of breeding, so ideally video of the birds entering prior to the works, and evidence of them attempting to enter once the nests are blocked is the best way to prove that Swifts are nesting

Best wishes

Graham

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