The government is poised to remove legal protection for some amphibians and reptiles. ARC’s Conservation Director, Jim Foster, attempts to explain an absurd situation and how ARC is opposing the move.

The colour red signifies danger in many walks of life. In conservation, we often talk of “Red Lists”, referring to a process to assign threat levels to animals and plants. Red Lists are used all over the world, though to date the method hasn’t been used formally for amphibians and reptiles in Great Britain. Red Listing can be exceptionally useful, but it can also hamper conservation efforts if used inappropriately. Sadly, this is one factor behind current government plans to remove legal protection for widespread species.

Government periodically reviews the protection afforded to species under the Wildlife and Countryside Act 1981 (as amended), which has been part of the furniture of British nature conservation efforts in recent decades. These periodic reassessments are known as Quinquennial Reviews (QQRs). The Joint Nature Conservation Committee (JNCC) co-ordinates the reviews along with the country agencies – NatureScot, Natural England and Natural Resources Wales - and recommends to government which species might be added, deleted or subject to altered protection levels on the Schedule 5 (for animals) and Schedule 8 (for plants). I will spare you the detail here – there’s a handy summary on the JNCC website – but essentially this is what makes it illegal to sell common toads or to kill adders.

ARC and its supporters, along with many in the wider nature conservation sector, are alarmed at some of the implications of the 7th QQR, currently in progress. Whilst some elements are welcome, one key change from previous QQRs has seriously adverse consequences for widespread amphibians and reptiles. Essentially, JNCC and the country agencies have decided to change the eligibility criteria for Schedule 5, in our view without a proper assessment of the impact of this change for species that have benefitted from such protection for decades. The current position is that to retain protection, species must be classed as “Critically Endangered” or “Endangered” in Great Britain using the IUCN Red List process (there is some nuance around this, which you can read about in the Information Pack, but that’s the gist of it).

ARC has undertaken an assessment of the Red List status for all native reptiles and amphibians at the Great Britain and country level, in conjunction with Natural England. This is currently in review and will be published soon, but unsurprisingly it shows that the widespread species do not meet the threshold needed for protection under the JNCC proposals. For a species to be Endangered or Critically Endangered, it really needs to be close to extinction. The adder comes closest – we believe this species should be considered Vulnerable in England, in light of serious ongoing declines.

As a result of the QQR7 proposals, the following species would automatically lose all protection under Section 9 of the Wildlife and Countryside Act 1981: common frog, common toad, smooth newt, palmate newt, slow-worm, common lizard, grass snake, adder. Currently those amphibians enjoy protection against trade, and the reptiles are protected against trade, killing and injuring (for more detail, see our guidance).

The implications are profoundly worrying. It will be legal to kill grass snakes and adders, despite decades of effort to rehabilitate the public image of snakes and to reduce persecution, which threatens some populations. It will be legal for developers to destroy habitat and in the process kill slow-worms. It will be legal to sell common frogs and thereby transfer harmful infectious disease. These harmful actions and more besides have been regulated – admittedly not perfectly – through listing on the Wildlife and Countryside Act 1981. Yet government currently plans to remove that protection, apparently without any attempt to recognise or remedy the consequences.

Reptiles are often found in coastal habitat, but they I doubt they would be prepared for this sort of cliff edge.

So how did government arrive at this position? My take is that JNCC and the agencies have attempted to apply a very narrow interpretation of parts of the legislation, without due regard to what the law and policy allows and indeed encourages government to do. They have also, it appears, neglected to assess the real world consequences and how those should be addressed. I am bemused why these implications were apparently missed before the QQR7 position was confirmed, but here we are.

A key part of the QQR7 proposal is that Schedule 5 listing is not appropriate for species threatened by land use change (see 2.3 in the Information Pack); instead, listing is designed to address direct human pressures such as deliberate killing. There is certainly some logic to this, and it’s true that Schedule 5 listing is an imperfect way of addressing habitat loss through development. Nonetheless, the reality is that Schedule 5 protection is indeed used to address these threats. It is the basis of much of the engagement with development planning, avoidance and mitigation. Any ecological consultant will gladly reel off the protection should you ask them, since it’s the basis of their business. Moreover, previous QQRs have acknowledged this benefit (see para 2). If government now wishes to remove that protection on the basis that it’s inappropriate, I believe it needs to provide a compelling alternative mechanism. The QQR7 proposals are silent on this, as far as I can see.

The use of Red Listing in scheduling species certainly has some sense. Indeed, although it’s not widely recognised, one of the several criteria for Schedule 5 listing is indeed focused on protecting species at risk of extinction from Great Britain (see Section 22(3)). What appears to have happened is that JNCC and the agencies have zeroed in on this particular clause, and designed criteria based almost exclusively around imminent national extinction. But in doing so, they have not allowed any contingency for species that might be disadvantaged as a result of falling out of the schedule, nor have they apparently looked at the broader legislative picture. ARC’s view is that even within the same Act, there is provision to retain species not threatened with imminent extinction (see Section 22(1) and (4)). We note especially that the government has discretion to add or remove species – it’s not under an obligation to remove species that don’t meet this narrow criterion.

This gives a rather different perspective on the QQR7 position, which appears to be: there is no alternative to removing protection from species that aren’t at imminent risk of national extinction.

In our view, there is a simple alternative: don’t do it! Retaining the species on Schedule 5 would be entirely compliant with legislation, and would give the best chance to species that really need help. There is no imperative to de-list them, other than the narrow interpretation of Section 22(3) which JNCC and the agencies appear to be bound to.

In addition, ARC believes that the removal of protection for these species is not consistent with government’s obligations under the Bern Convention, which requires “appropriate and necessary legislative and administrative measures to ensure the protection” for all of these species. More broadly, the move sits uneasily with government’s pronouncements on the biodiversity crisis, and various policy commitments such as the Scottish biodiversity strategy post-2020: statement of intent, the 25 Year Environment Plan in England and the Well-being of Future Generations (Wales) Act 2015.

There are wider issues here. ARC is concerned that Red Listing is, at times, being used inappropriately by government agencies. In a surprising move, Natural Resources Wales has recently suggested that the list of biodiversity priority species in Wales (the Section 7 list) is slimmed down by removing species that do not meet the threshold of IUCN Vulnerable status. Hence, species like the adder – in dire need of conservation attention – would no longer enjoy the benefits of being a priority species. And if the QQR7 proposals go through, they lose legal protection too – an unenviable double whammy for species conservation in Wales. The only amphibians and reptiles to remain on the list would be those that already have strict protection under the Habitats Regulations. ARC has objected robustly to this short-sighted proposal, and we are concerned that similar moves could be made for the equivalent lists in Scotland and England.

Red Listing is best seen as a way to identify those species in most urgent need of help. It is simply a measure – albeit a good one – of extinction risk, and it shouldn’t be used on its own to drive conservation priorities. This would be akin to running a national health service where resource is focused on emergency care, at the expense of routine healthcare provision. Conservation needs that wider reach, to keep common species common and prevent serious declines, not just the capacity to intervene once a species has plummeted toward extinction. Red Listing helps set a floor, but isn’t much good at setting aspirations for species recovery; IUCN explicitly recognises this and have even developed a Green List to help drive recovery. Maybe that’s a topic for a future blog.

ARC has made its concerns about the current QQR known to government and its agencies, and suggested a rethink. You can read our detailed case here. I am pleased to say we have received reassurances that our concerns will be seriously considered. I will be even more pleased when I can say that this unnecessary and eminently avoidable threat to amphibians and reptiles has been averted. Watch this space.