Monthly Archives: Feb 2022

Animals in constitutions around the world

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Animal lives are shaped by human laws, though they do not elect or lobby or stand as lawmakers. And animals may benefit from those laws, though they do not draft pleadings or instruct counsel or make choices about the use of litigation in broader social change strategies. In terms of prevailing constitutional theory and practice, they are subjects, but not citizens; beneficiaries, but not enforcers, of law. They think, and feel, and communicate, but not in ways that allow them to speak for themselves in the languages of formal law.

Jessica Eisen, ‘Animals in the Constitutional State’, I•CON (International Journal of Constitutional Law) (2017), Vol. 15 No. 4, 909, p. 941

Animals occupy an interesting position within legal systems. Animals have traditionally been considered property or things in law, but there have always been laws designed to deal with animals’ unique character within that class. For one thing, animals have minds of their own, autonomous physical mobility, and the ability to reproduce. The same laws that govern chairs could not completely suit such creatures, so special laws for animals are required. For another thing, humans are sometimes sufficiently morally concerned about the treatment of animals or their well-being to seek to rebut the usual presumption that one may do whatever one wishes with one’s property. Animals are not unique in this respect – ask anyone who owns a listed building – but the nature of the legal protection that animals receive, when they do receive it, is different from the nature of protection granted to inanimate property because of the different kinds of harms that animals suffer. (I discussed this phenomenon in my first post on this blog.)

Above, Eisen identifies a third way in which animals might need to be treated as a special category. This is by constitutional law. If you are not a lawyer: roughly, constitutional law is the body of law setting out how the state is constituted: its component parts, their relations with one another, and their powers and duties towards individuals, often expressed in the form of a bill of rights. Constitutional law is usually some combination of a written constitutional document (a Constitution with a big C) and unwritten constitutional principles or values, which are developed and applied in judicial decisions. A written constitutional document is usually adopted by a process that at least claims to be democratic and derives its legitimacy from that fact. If animals are part of the community of beings whose lives are governed by law, how can a constitution validated only by humans legitimately apply to animals? How could a constitution be legitimate with respect to animals? And how could, or should, a constitution recognise the status of animals as worthy of protection if the law treats them as property?

These questions assume that animals are part of the community of beings whose lives are governed by law and that animals are worthy of protection. The first assumption is a not-widely-held answer to a difficult question of legal theory. However, the second assumption is a widely-held view. It is not universal, and the nature and scope of the legal protection that animals deserve are controversial. But, without entering heavily-contested territory or getting into legal-theoretical weeds, we can quite safely ask: How can animals be protected by constitutions?

I hope to write a number of blog posts addressing this question. This post is a short survey of the countries that have explicitly mentioned the protection of animals in their constitutional documents. There are nine such countries: Austria, Brazil, Egypt, Germany, India, Italy, Luxembourg, Slovenia and Switzerland. Without dwelling on every example, we can see the range of approaches that have been adopted so far and their effects.

Constitutional provisions protecting animals have been classified in a number of ways, but no one ever got rich using someone else’s analytical framework. I think that a helpful way to divide up these provisions is between subject-matter duties, vague substantive duties and specific substantive duties. A subject-matter duty arises when a state is obliged to make laws concerning a particular subject, but the constitution does not guide or limit the state as to the content of those laws. A vague substantive duty arises when a state is obliged to undertake a particular activity or respect a particular value but is not obliged to achieve a particular result. A specific substantive duty arises when a state is obliged to achieve a particular result. We can classify our provisions along these lines by taking their text at face-value, but the interpretation of a provision will depend on legal doctrines and culture in the country.

We can start with the subject-matter duties. Article 72 of the Constitution of the Republic of Slovenia provides as follows (I have emphasised the crucial words for our purposes):

Zdravo življenjsko okolje
Vsakdo ima v skladu z zakonom pravico do zdravega življenjskega okolja. Država skrbi za zdravo življenjsko okolje. V ta namen zakon določa pogoje in načine za opravljanje gospodarskih in drugih dejavnosti.
Zakon določa, ob katerih pogojih in v kakšnem obsegu je povzročitelj škode v življenjskem okolju dolžan poravnati škodo.
Varstvo živali pred mučenjem ureja zakon.

Healthy living environment
Everyone has the right in accordance with the law to a healthy living environment. The state shall promote a healthy living environment. To this end, the conditions and manner in which economic and other activities are pursued shall be established by law.
The law shall establish under which conditions and to what extent a person who has damaged the living environment is obliged to provide compensation.
The protection of animals from cruelty shall be regulated by law.

The reason that this is only a subject-matter duty is that the fact that animal protection “regulated by law” does not guarantee any substantive level of animal protection. While it is arguable whether this provision would be satisfied if a law stated animals shall not be protected from cruelty (is this the regulation of the protection of animals from cruelty?), it is hard to interpret the provision as requiring the state to prohibit any specific acts.

Very recently, the Italian Chamber of Deputies approved a constitutional amendment that will, among other things, brings animals into the Constitution of the Italian Republic. Article 9 will now say as follows:

La Repubblica promuove lo sviluppo della cultura e la ricerca scientifica e tecnica. Tutela il paesaggio e il patrimonio storico e artistico della Nazione. Tutela l’ambiente, la biodiversità e gli ecosistemi, anche nell’interesse delle future generazioni. La legge dello stato disciplina i modi e le forme di tutela degli animali.

The Republic promotes the development of culture and scientific and technical research. It protects the landscape and the historical and artistic heritage of the nation. It protects the environment, biodiversity and ecosystems, also in the interest of future generations. The law of the state regulates the ways and forms of animal protection.

We can call this a subject-matter duty for the same reasons as apply to Slovenia.

Do these provisions have any value with respect to protecting animals? Even if they do not set a minimum standard of animal protection, they require the state to pass some kind of law relating to animal protection. Unless the legislature (or the executive, depending on the national system) can devise and pass a law unnoticed, there will have to be a national conversation of some sort about appropriate standards of protection for animals. Constitutional provisions imposing subject-matter duties are therefore of political value with respect to protecting animals.

Next we have vague substantive duties. Article 11 bis of the Constitution of the Grand Duchy of Luxembourg provides as follows:

L’Etat garantit la protection de l’environnement humain et naturel, en œuvrant à l’établissement d’un équilibre durable entre la conservation de la nature, en particulier sa capacité de renouvellement, et la satisfaction des besoins des générations présentes et futures. Il promeut la protection et le bien-être des animaux.

The State guarantees the protection of the human and cultural environment, and works for the establishment of a durable equilibrium between the conservation of nature, in particular its capacity for renewal, and the satisfaction of the needs of present and future generations. It promotes the protection and well-being of animals.

Similarly, Austrian constitutional law no. 111/2013 on sustainability, animal welfare etc, provides at paragraph 2, as follows:

Die Republik Österreich (Bund, Länder und Gemeinden) bekennt sich zum Tierschutz.

The Republic of Austria (at the federal, state and local levels) commits itself to the protection of animals.

These provisions commit the state to a substantive position on the issue of animal welfare. It cannot neglect or choose to attach no importance to the protection and well-being of animals. It must promote them. But this is such a high-level duty that it is difficult to see how it would be enforced by a court or applied to a particular context.

A further example can enlighten us. Article 20a of the Basic Law (Grundgesetz) for the Federal Republic of Germany, which is the German constitution, provides as follows:

Der Staat schützt auch in Verantwortung für die künftigen Generationen die natürlichen Lebensgrundlagen und die Tiere im Rahmen der verfassungsmäßigen Ordnung durch die Gesetzgebung und nach Maßgabe von Gesetz und Recht durch die vollziehende Gewalt und die Rechtsprechung.

Mindful also of its responsibility toward future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.

This is another vague substantive duty. The state is committed to protecting animals, but what does this mean? Elien Verniers argues that this provision has both political and legal effects. Legally speaking, it allows fundamental constitutional rights to be limited on the basis of the protection of animals, which is a constitutional value of equal status. This has resulted in little change in judicial decisions involving the rights to freedom of research and freedom of religion, but it has had an impact on the scope of the rights to freedom of artistic expression and freedom of teaching. While before the adoption of this constitutional provision, constitutional freedom of artistic expression or teaching could not be limited on the basis of animal protection, now that can happen, because animal protection is a constitutionally-protected value. This led the Cologne Administrative Court to forbid educational experiments on mice when they could instead learn by watching videos (Verwaltungsgericht Köln, 22.08.2018 – 21 K 11572/17). This example shows that vague substantive duties can have an effect in practice, which will depend on how the constitutional law works in a given country.1

Now we have specific substantive duties. Article 45 of the Constitution of the Arab Republic of Egypt provides as follows:

.تلتزم الدولة بحماية بحارها وشواطئها وبحيراتها وممراتها المائية ومحمياتها الطبيعية
ويحظر التعدى عليها، أوتلويثها، أواستخدامها فيما يتنافى مع طبيعتها، وحق كل مواطن فى التمتع بها مكفول، كما تكفل الدولة حماية وتنمية المساحة الخضراء في الحضر، والحفاظ على الثروة النباتية والحيوانية والسمكية، وحماية المعرض منها للانقراض أو الخطر، والرفق بالحيوان، وذلك كله على النحو الذى ينظمه القانون

The State shall protect its seas, shores, lakes, waterways and natural protectorates.
Trespassing, polluting or misusing any of them is prohibited. Every citizen is guaranteed the right of enjoying them. The State shall protect and develop the green space in the urban areas; preserve plant, animal and fish resources and protect those under the threat of extinction or danger; guarantee humane treatment of animals, all according to the law.

This provision requires the state to guarantee “al-rifq bil-hayawan” (the humane treatment of animals or animal welfare). This is a specific substantive duty because, if the state fails to guarantee animal welfare, for example by allowing cruel practices, the state can be said to be in breach of the duty. The state must make laws that guarantee the welfare of animals and enforce them effectively.

Another specific substantive duty is to be found in Brazil. Article 255 of the Constitution of Brazil provides, in relevant part, as follows:

Todos têm direito ao meio ambiente ecologicamente equilibrado, bem de uso comum do povo e essencial à sadia qualidade de vida, impondo-se ao Poder Público e à coletividade o dever de defendê-lo e preservá- lo para as presentes e futuras gerações.
§ 1º Para assegurar a efetividade desse direito, incumbe ao Poder Público:
[…]
VII – proteger a fauna e a flora, vedadas, na forma da lei, as práticas que coloquem em risco sua função ecológica, provoquem a extinção de espécies ou submetam os animais a crueldade.

All have the right to an ecologically balanced environment, which is an asset of common use and essential to a healthy quality of life, and both the Government and the community shall have the duty to defend and preserve it for present and future generations.
Paragraph 1 – In order to ensure the effectiveness of this right, it is incumbent upon the Government to:
[…]
VII. protect the fauna and the flora, with prohibition, in the manner prescribed by law, of all practices which represent a risk to their ecological function, cause the extinction of species or subject animals to cruelty.

The provision is quite clear that the government must prohibit “as práticas” (literally the practices, but translatable as all practices, as in the official translation) that subject animals to cruelty. The value of this provision is illustrated by judicial decisions striking down laws that permit such practices. One such case concerned the practice of vaquejada (STF, ADI No. 4983, Relator: Min. Marco Aurélio, 06.10.2016, Diário Da Justiça Eletrônico [D.J.E.], 10.10.2016, 215). This is a traditional sport in north-east Brazil, involving two horse-riders who between them try to direct a bull into a marked area before knocking the bull over. In 2016, the Supreme Federal Court of Brazil (Supremo Tribunal Federal), sitting en banc, ruled, by a majority of 6 to 5, that the law passed by the State of Ceará permitting vaquejada was unconstitutional and void because it permitted the infliction of unnecessary suffering on animals. This case shows the force of a specific substantive constitutional duty, but it also shows a danger inherent in overturning democratically-approved laws. The decision was very controversial, and resulted not only in the passing by other states in Brazil of similar laws in protest (which were presumably also unconstitutional), but also in the adoption of a constitutional amendment creating a specific exception from the constitutional prohibition of cruel practices for traditional cultural practices (meaning that the new laws now comply with the constitution). It is a topic for another time, but one step forwards can be followed by two steps back when legal developments are far removed from popular opinion.

Now we have seen three kinds of constitutional provision protecting animals: subject-matter duties, vague substantive duties and specific substantive duties. We have two more countries to visit, one that combines several kinds of duties and another that has an unusual constitutional provision.

Switzerland is regarded as a progressive country when it comes to laws protecting animals. Although the electorate of the canton of Basel recently voted not to extend fundamental rights to primates in a long-awaited referendum, Switzerland has a reputation for legally innovative animal welfare laws. This is reflected in its constitutional law. Four articles of the Federal Constitution of the Swiss Federation are of interest to us. They provide as follows:

Art. 78 Natur- und Heimatschutz
1 Für den Natur- und Heimatschutz sind die Kantone zuständig.
2 Der Bund nimmt bei der Erfüllung seiner Aufgaben Rücksicht auf die Anliegen des Natur- und Heimatschutzes. Er schont Landschaften, Ortsbilder, geschichtliche Stätten sowie Natur- und Kulturdenkmäler; er erhält sie ungeschmälert, wenn das öffentliche Interesse es gebietet.
3 Er kann Bestrebungen des Natur- und Heimatschutzes unterstützen und Objekte von gesamtschweizerischer Bedeutung vertraglich oder durch Enteignung erwerben oder sichern.
4 Er erlässt Vorschriften zum Schutz der Tier- und Pflanzenwelt und zur Erhaltung ihrer Lebensräume in der natürlichen Vielfalt. Er schützt bedrohte Arten vor Ausrottung.
5 Moore und Moorlandschaften von besonderer Schönheit und gesamtschweizerischer Bedeutung sind geschützt. Es dürfen darin weder Anlagen gebaut noch Bodenveränderungen vorgenommen werden. Ausgenommen sind Einrichtungen, die dem Schutz oder der bisherigen landwirtschaftlichen Nutzung der Moore und Moorlandschaften dienen.

Art. 78 Protection of natural and cultural heritage
1 The protection of natural and cultural heritage is the responsibility of the Cantons.
2 In the fulfilment of its duties, the Confederation shall take account of concerns for the protection of natural and cultural heritage. It shall protect the countryside and places of architectural, historical, natural or cultural interest; it shall preserve such places intact if required to do so in the public interest.
3 It may support efforts made for the protection of natural and cultural heritage and acquire or preserve properties of national importance by contract or through compulsory purchase.
4 It shall legislate on the protection of animal and plant life and on the preservation of their natural habitats and their diversity. It shall protect endangered species from extinction.
5 Moors and wetlands of special beauty and national importance shall be preserved. No buildings may be built on them and no changes may be made to the land, except for the construction of facilities that serve the protection of the moors or wetlands or their continued use for agricultural purposes.

Art. 79 Fischerei und Jagd
Der Bund legt Grundsätze fest über die Ausübung der Fischerei und der Jagd, insbesondere zur Erhaltung der Artenvielfalt der Fische, der wild lebenden Säugetiere und der Vögel.

Art. 79 Fishing and hunting
The Confederation shall lay down principles on fishing and hunting and in particular on the preservation of the diversity of fish species, wild mammals and birds.

Art. 80 Tierschutz
1 Der Bund erlässt Vorschriften über den Schutz der Tiere.
2 Er regelt insbesondere:
a. die Tierhaltung und die Tierpflege;
b. die Tierversuche und die Eingriffe am lebenden Tier;
c. die Verwendung von Tieren;
d. die Einfuhr von Tieren und tierischen Erzeugnissen;
e. den Tierhandel und die Tiertransporte;
f. das Töten von Tieren.
3 Für den Vollzug der Vorschriften sind die Kantone zuständig, soweit das Gesetz ihn nicht dem Bund vorbehält.

Art. 80 Protection of animals
1 The Confederation shall legislate on the protection of animals.
2 It shall in particular regulate:
a. the keeping and care of animals;
b. experiments on animals and procedures carried out on living animals;
c. the use of animals;
d. the import of animals and animal products;
e. the trade in animals and the transport of animals;
f. the killing of animals.
3 The enforcement of the regulations is the responsibility of the Cantons, except where the law reserves this to the Confederation.

Art. 120 Gentechnologie im Ausserhumanbereich
1 Der Mensch und seine Umwelt sind vor Missbräuchen der Gentechnologie geschützt.
2 Der Bund erlässt Vorschriften über den Umgang mit Keim- und Erbgut von Tieren, Pflanzen und anderen Organismen. Er trägt dabei der Würde der Kreatur sowie der Sicherheit von Mensch, Tier und Umwelt Rechnung und schützt die genetische Vielfalt der Tier- und Pflanzenarten.

Art. 120 Non-human gene technology
1 Human beings and their environment shall be protected against the misuse of gene technology.
2 The Confederation shall legislate on the use of reproductive and genetic material from animals, plants and other organisms. In doing so, it shall take account of the dignity of living beings as well as the safety of human beings, animals and the environment, and shall protect the genetic diversity of animal and plant species.

We can see our three kinds of provision concerning animals here. First, and mostly, we have subject-matter duties. The first sentence of Article 78(4) and all of Article 79 and Article 80 set out domains in which the state is obliged to pass laws without specifying what those laws should achieve. Second, the commitment in Article 120 to take account of the dignity of living beings is a vague substantive duty. It is an interesting provision because it recognises at a constitutional level the distinctively Swiss legal value of animal dignity, but it is not hard-edged and it is unclear whether it applies in any way outside the direct context of genetic technology. Third, the second sentence of Article 78(4) is a specific substantive duty. The state must pass laws that protect endangered species from extinction.

Our last country is India, and it is unique because the constitutional provision we are looking at imposes a duty not on the state but on the individual citizen. Article 51A of the Constitution of India provides, in relevant part, as follows:

Fundamental duties
It shall be the duty of every citizen of India
[…]
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
[…]

As written, this would not grant animals any real protection at all. Not only does not concern the law-making power of the state, but it only requires citizens to “have compassion”, not to act with compassion. However, it has been interpreted expansively. This is, in the first place, because the constitutional role of fundamental duties has been expanded beyond what is obvious in the text. This was established in AIIMS Students’ Union vs All India Institute of Medical Sciences & others (2002) 1 SCC 428, in which R. C. Lahoti J said as follows:

Fundamental duties, though not enforceable by a writ of the court, yet provide a valuable guide and aid to interpretation of constitutional and legal issues. […] Constitutional enactment of fundamental duties, if it has to have any meaning, must be used by courts as a tool to tab, even a taboo, on State action drifting away from constitutional values

In Indian constitutional law, the values underlying fundamental duties can serve as aids to statutory interpretation and can ground limitations on state power. This was seen in the context of Article 51A(g) of the Constitution in Animal Welfare Board of India v Nagaraja and others (2014) 7 SCC 547. In this case, the Supreme Court of India considered the compatibility of state legislation permitting jallikattu, a traditional form of entertainment involving bulls, with the federal Prevention of Cruelty to Animals Act 1960. The court (K. S. Panicker Radhakrishnan J) concluded that jallikattu violated the Act and that laws permitting it were invalid. It did so by using Article 51A(g) of the Constitution to read new content into the Act and to give the protections in the act the normative force of constitutional rights. The judgment takes some time to expose fully but these three paragraphs show how the

32. Sections 3 and 11, as already indicated, therefore, confer no right on the organisers of Jallikattu or bullock-cart race, but only duties, responsibilities and obligations, but confer corresponding rights on animals. Sections 3, 11(1)(a) & (o) and other related provisions have to be understood and read along with Article 51A(g) of the Constitution which cast fundamental duties on every citizen to have “compassion for living creatures”. Parliament, by incorporating Article 51A(g), has again reiterated and re-emphasised the fundamental duties on human beings towards every living creature, which evidently takes in bulls as well. All living creatures have inherent dignity and a right to live peacefully and right to protect their well-being which encompasses protection from beating, kicking, over-driving, over-loading, tortures, pain and suffering etc. Human life, we often say, is not like animal existence, a view having anthropocentric bias, forgetting the fact that animals have also got intrinsic worth and value. Section 3 of the PCA Act has acknowledged those rights and the said section along with Section 11 cast a duty on persons having charge or care of animals to take reasonable measures to ensure well-being of the animals and to prevent infliction of unnecessary pain and suffering.

54. […] These five freedoms, as already indicated, are considered to be the fundamental principles of animal welfare and we can say that these freedoms find a place in Sections 3 and 11 of PCA Act and they are for animals like the rights guaranteed to the citizens of this country under Part III of the Constitution of India.

56. Rights guaranteed to the animals Under Sections 3, 11, etc. are only statutory rights. The same have to be elevated to the status of fundamental rights, as has been done by few countries around the world, so as to secure their honour and dignity. Rights and freedoms guaranteed to the animals Under Sections 3 and 11 have to be read along with Article 51A(g)(h) of the Constitution, which is the magna carta of animal rights.

The point of producing these paragraphs is not to show you exactly how the Indian constitution protects animals. That would require several blog posts. The point is that textually vague and unpromising constitutional provisions can have a profound legal effect when the system of constitutional law enables an underlying value to be identified and applied independently. Does this mean that our analysis of subject-matter duties, vague substantive duties and specific substantive duties is worthless, because the effect of a constitutional provision depends more on the constitutional context than on the words of the provision?

I think not, for two reasons. First, words do matter. India’s muscular constitutional jurisprudence makes it an outlier, at least among the countries we have looked at, with respect to how far from the literal meaning of the text courts are willing to go. In most countries, the precise formulation of a constitutional provision determines its effect, so it is useful to understand the possible formulations. Second, a country that wishes to add a provision concerning animal protection to its constitution may have one of a wide range of intentions. Maybe the population and the legislators are overwhelmingly pro-animal-rights, or maybe a constitutional amendment is the controversial result of a coalition agreement. Democratic considerations require a variety of options to be available to constitutional drafters. And, relatedly, if law-makers understand that the possibilities are more nuanced than having fundamental rights for animals on the one hand or no protection for animals on the other, it is more likely that animals will end up appearing in constitutions at all.

1Verniers’ full analysis of the effect of the German constitutional provision can be read at: Elien Verniers, ‘The impact of including animals in the constitution – Lessons learned from the German animal welfare state objective’, Global Journal of Animal Law (2020) 8.

What I’ve been watching this week

I have returned to, and finished, North Square, the 2000 barrister drama series by Peter Moffat. It’s not as polished as Silk but it is fantastic entertainment, held together by Phil Davis as the terrifying senior clerk. And it’s available to watch for free on All 4.

The birds and the bees: Biodiversity Net Gain in practice

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After a long process of scrutiny, debate and amendment, the Environment Act 2021 (“the Act”) finally received royal assent on the 9th November last year. It sets out a statutory framework for post-Brexit environmental protection and regulation, to be overseen by the newly created Office for Environmental Protection.[1] Some of the provisions of the Act simply carry over existing protections from EU legislation, but others are genuinely new. One of the new provisions concerns mandatory Biodiversity Net Gain (BNG) requirements to be introduced as a condition of planning permission. The principle behind these requirements is that new developments should leave the natural environment in a measurably better state than they found it in order to be acceptable in planning terms.

The relevant provisions in the Act itself are to be found at Part 6: sections 98–101 and Schedule 14 and are summarised below.

  • The Town and Country Planning Act 1990 has been amended to introduce a mandatory minimum 10% gain in biodiversity.
  • The requirement that this gain be calculated according to Natural England’s Biodiversity Metric 3.0 and that the proposed steps to be taken to achieve it are set out in a developer’s ‘Biodiversity Gain Plan’.
  • BNG will be deliverable on-site, off-site, or via the purchase of ‘biodiversity credits’ from central government.
  • Habitats delivered via the policy are to be secured for at least thirty years via planning obligations or conservation covenants.
  • Biodiversity gain sites will be registered on a newly established national public register. 

The policy is due to come into force in November 2023 but, notwithstanding the provisions of the Environment Act, many details of its operation are yet to be fleshed out via secondary legislation. Defra is currently consulting on how BNG will work in practice.[2] The subject is a complex and technical one and I do not profess to be any kind of expert, but in the remainder of this piece I hope to provide an overview of the scope and some of the key features of what is being proposed, as well as considering a few potential barriers to the successful implementation of the policy and the adequacy or otherwise of the government’s proposed solutions.

What kinds of development are covered by the new proposals?

Under current proposals, the new BNG requirements will apply to a wider range of developments than initially anticipated when the Environment Bill was first tabled. For example, a government amendment introduced in June of last year expanded the requirement to include Nationally Significant Infrastructure Projects (NSIPs). Defra’s consultation document notes that there may be circumstances where a particular NSIP is unable to deliver the 10% minimum BNG required from schemes delivered through the normal planning process but prefers a reduced percentage target in such circumstances to a blanket exception for large scale projects [p. 41]. One can only imagine the number of planning inquiries which are likely to arise after the introduction of the policy, dealing with the question of whether a particular percentage target is appropriate in a given set of circumstances Crucially, however, 10% will remain the baseline target, even for NSIPs.

The government is also now proposing to apply the 10% target to schemes on brownfield sites, despite previously considering exempting such developments from BNG requirements. The rationale behind the change is that brownfield exemptions would “deliver little added benefit and would greatly complicate the requirement’s scope for developers and planning authorities alike” as well as a stated desire for the policy to benefit people as well as wildlife, by improving the biodiversity of sites in urban and suburban areas, where brownfield land tends to be concentrated [p. 26]. Previously considered exemptions for temporary planning permissions and schemes in conservation areas and national parks have also been abandoned.[3]

Some exceptions remain in the consultation proposals, including householder planning applications such as extensions and permitted development, the former presumably in the interests of avoiding unfairness to individual householders for the sake of minimal benefits, and the latter because permitted development rights operate outside of the usual planning process and do not normally involve substantial additional land take or construction work. Defra is also considering exemptions for self-build, custom build, and the creation of biodiversity gain sites themselves (the role of these sites is discussed more fully below) [pp. 23–27]. Nevertheless, the consultation document seems to indicate a commitment to apply the policy more widely than many in the environmental and development sectors had previously anticipated.

How will the policy work?

The consultation document makes clear that the new statutory BNG requirement is designed to complement the existing biodiversity mitigation hierarchy set out in paragraph 180a of the National Planning Policy Framework. Developers should in all cases aim to avoid or reduce biodiversity impacts through site selection and layout. In terms of meeting their 10% BNG target, they should preferably seek to do so through on-site improvements, with the resulting habitats being secured for at least thirty years via planning obligations or conservation covenants. In the event that on-site delivery is not feasible, developers will be permitted to meet the requirement off-site, either through improvements elsewhere on their land, or by purchasing off-site benefits to be achieved via biodiversity gain sites elsewhere. As a last resort, if no other option is feasible, they may purchase biodiversity credits from central Government. The biodiversity gains and losses of a development will be measured in ‘biodiversity units’, using Natural England’s Biodiversity Metric 3.0. This metric uses habitats as a proxy for biodiversity and calculates units by taking account of their type, extent and condition. Developers will be able to purchase biodiversity units on the market when meeting their BNG target via off-site contributions.

Under the new policy, all applications for planning permission which do not fall under one of the proposed exceptions will need to provide initial BNG information, including:

  • the pre-development biodiversity value,
  • the proposed approach to enhancing biodiversity on-site, and
  • any proposed off-site biodiversity enhancements (including the use of statutory credits) that have been planned or arranged for the development.

To fully discharge the new planning condition, local planning authorities will need to approve a development’s biodiversity gain plan. These plans should offer a more detailed road map for how the developer proposes to achieve the benefits to biodiversity indicated as part of their initial planning application. The consultation document contains a template plan at Annex B. The approval of a biodiversity gain plan must take place before development starts [p. 13].

Biodiversity gain sites will be registered on a newly established Public Biodiversity Gain Site Register, to aid enforcement and avoid double counting. In the interests of transparency, the register will be designed so that local communities are able to access information on the delivery of sites and monitor their progress over time. 

Will the policy be effective?

While the introduction of the mandatory BNG policy has been broadly welcomed in the environmental sector, conservationists and biodiversity experts have raised a number of serious issues with the current proposals and questioned the efficacy of the government’s proposed solutions to them. A non-exhaustive list of these issues includes fears over the loss of irreplaceable habitats, the design of the algorithm for Natural England’s Biodiversity Metric, delays in the delivery of replacement habitats, and the challenges of enforcement.[4]

Irreplaceable habitats

As noted above, the new BNG policy is supposed to complement existing planning protections for habitats and the mitigation hierarchy enshrined in the NPPF, not replace them. Campaigners and academics alike have called on the government to take this opportunity to firm up its commitment to protecting irreplaceable habitats such as ancient woodland, blanket bog, limestone pavement, sand dunes, salt marsh and lowland fen, arguing that it should be all but impossible for developers to achieve planning permission for schemes which would result in the destruction of these vital ecosystems.

Irreplaceable habits have been removed from scope of the current BNG consultation, so as not to give the impression that losses in such habitats can be offset in the usual way. However, when a development results in losses of both irreplaceable and non-irreplaceable habitat, the BNG requirement will still apply to any affected non-irreplaceable habitat. Defra has promised supporting guidance on what constitutes irreplaceability and proposed to adopt a bespoke compensation approach where developments would lead to the loss of irreplaceable habitat. The consultation document suggests that the appropriate compensation would typically exceed standard BNG requirements [p. 31].

While the recognition that the value of irreplaceable habitats for biodiversity cannot be assessed in terms of standard units under the general Biodiversity Metric is welcome, the language of ‘compensation’ and refusal to tighten restrictions on the destruction of such habitats is deeply concerning. The value to nature of an acre of ancient woodland cannot be adequately compensated in money, no matter how many trees one pays to plant. Without stronger protections, there is a very real risk that developers of schemes which are likely to be particularly profitable, but which will also lead to irreplaceable habitat loss, will be quite content to throw money at the problem in the form of compensation.

The Biodiversity Metric

Many rewilding experts have raised serious concerns over the way that Natural England’s algorithm calculates the value of a given habitat for biodiversity. The algorithm uses information about the type, size and condition of a habitat to assign it a number, defining how valuable it supposedly is for biodiversity.  However, critics have warned that the new Biodiversity Metric does not value scrubby landscapes characterised by bramble, thistle and ragwort, which are often key features of rewilding projects. Such characteristics are logged as a sign of the ‘degradation’ of a landscape. In this respect the algorithm privileges more traditional conservation projects over innovative rewilding schemes, which seems a great shame when these projects can actually provide some of the most genuine and lasting benefits for biodiversity.

Speaking to the Guardian, entomologist Steven Falk noted that quarries and field margins were among habitats undervalued by the algorithm and labelled as ‘degraded’, despite being very rich for wildlife. He highlighted the risk that assessments based on the Biodiversity Metric would therefore conclude that such habitats did not need to be compensated for at all.

The algorithm also does not take into account the location or interconnectedness of a habitat. Scrubland next to a carpark and scrubland in the middle of a large rewilding project would consequently be afforded the same purported value for biodiversity under the current metric, even though the difference in their actual value would be transparently obvious to a human observer assessing them in their physical context.

Delay and enforcement

The government’s stated aim is for net gains to be delivered quickly.The consultation document proposes that on-site gains should be secured for delivery within 12 months of the development being commenced or, at the very least, before occupation. Biodiversity gain plans will have to set out a full timetable for implementation of their proposed measures. Any delay in the creation of replacement habitats for longer than 12 months will have to be reflected in the biodiversity metric calculation, meaning that developers who delay will ultimately have to pay more [p. 54].

However, the issue of delay in the delivery of offsets is closely linked to that of enforcement. Planning departments and councils are underfunded, understaffed and overstretched already. The introduction of the new BNG policy will leave them with yet another mandatory consideration to assess at the decision-taking stage and there is a danger that local planning authorities have neither the time nor the expertise to do it properly.

When Rebecca Moberly, principal consultant for the Planning Advisory Service (PAS), was quoted in a recent piece for ENDS report, she expressed her concern that the proposals for the implementation of the policy are too vague to be properly enforceable and that developers and landowners might be able to fudge the numbers. “We still don’t know if this will be part of the planning process or something separate,” Moberly said. “Developers might say they have done it, but who is going to check it? And if it has not happened, who will make sure it does happen?” If fears about the lack of capacity in the system prove to be justified, then delays in the delivery of off-sets may prove to be the least of environmentalists’ worries.

Alongside the publication of the its consultation document, the government announced a new £4 million funding pot to help local authorities with implementation costs. This works out at a rather meagre £10,000 per local authority, which hardly seems sufficient to cover the cost of enforcing a whole new governance framework.

It is hardly surprising, therefore, that when ecological economist Sophus zu Ermgassen and a team of researchers from the University of Kent assessed 6% of the housebuilding in England between January 2020 and February 2021, in six local authorities who had adopted the BNG scheme ahead of its national rollout, they found evidence of a governance gap and that promised biodiversity units were not being delivered. Overall, they found that BNG developments led to a 34% reduction in green space, offset by promises of a 20% increase in total biodiversity through the theoretical delivery of smaller but more ecologically valuable habitats. Whether or not these promised gains will materialise remains to be seen.

The BNG policy has the potential to lead to some genuinely positive outcomes in terms of habitat creation, especially where a development takes place on denuded agricultural land (and an awful lot of land in England is exactly that). If properly enforced, it could constitute a valuable source of funding for conservation, rewilding and habitat creation projects. Or it could turn out to be unwieldy, overly financialized, and ultimately unenforceable, allowing developers to destroy thriving ecosystems and interconnected habitats and then plant a few trees elsewhere or buy a few extra credits. If the policy is to be more than greenwash, there needs to be proper government support available to local authorities to enforce it and decision makers must prioritise ecological outcomes when assessing whether a given development meets its obligations. Otherwise the risk is that all BNG will create is a low quality market in off-sets.

[1] Analysis of the range of targets included in the Act and of the objectives, functions and draft strategy of the OEP can be found in two recent posts on FTB’s Environmental Law Blog.

[2] Defra, Consultation on Biodiversity Net Gain Regulations, closes 5 April 2022. Page ranges given in square brackets refer to this document.

[3] Conservation areas for this purpose include Sites of Special Scientific Interest, Special Areas of Conservation, Special Protection Areas and Marine Conservation Zones.

[4] These issues and others are addressed in a case study of six early-adopter councils already implementing mandatory BNG policies by Sophus zu Ermgassen et al., ‘Exploring the ecological outcomes of mandatory biodiversity net gain using evidence from early-adopter jurisdictions in England‘, Conservation Letters, Vol. 14, June 2021.