Most active birders will be familiar with Schedule 1, or to use its Sunday name, 'Schedule 1 of the Wildlife and Countryside Act 1981'. While all birds are protected, Schedule 1 lists more than 80 species for which 'special penalties' allegedly offer additional protection. This means that it is an offence to intentionally disturb these birds while they are building, in, on or near a nest containing eggs or young, or to disturb dependent young even if not in the nest.
The BTO is responsible for the issue of licences to enable the disturbance of a Schedule 1 species during the breeding season in order to monitor breeding performance, ring adults or young, or simply visit the nest during the breeding season to record its contents.
It has been 42 years since the legislation was drafted and many of the bird populations listed on it have undergone significant changes in that time. Some might argue that for numerous ground-nesting species, such as Avocet and Little Ringed Plover, inclusion on the schedule and the additional protection it affords has seen their populations mushroom. But, for me, it's difficult not to suspect that a changing climate has largely pushed the breeding-range boundaries of both these species further north and that Schedule 1 has had a fairly negligible impact in recent years at least.
Is it time that some Schedule 1 species, such as the increasing Little Ringed Plover, are taken off the list? (Paul Samuels).
Some species, such as Cetti's Warbler and – whisper it – Red Kite, have surely outgrown their inclusion on Schedule 1, with both seeing huge increases in breeding populations over the last 40 years, albeit for different reasons. Others, such as Barn Owl and Common Kingfisher, arguably may have been list-fillers that never really justified inclusion.
If Schedule 1 is to protect the rarest of breeders though, it surely it needs to be proactively maintained. There are several species that have begun to breed since the legislation was introduced. Western Cattle and Great Egrets are perhaps the most obvious and Black-crowned Night Heron must be an imminent coloniser, particularly given last summer's influx. There are others, such as Great Reed and Blyth's Reed Warblers, that could reasonably be expected to colonise Britain at some point in the not-too-distant future. All of these species have one thing in common: a conspicuous absence from the additional protections afforded by Schedule 1.
When asked about changes to Schedule 1, JNCC responded by saying "Unlike other schedules there is no formal process for review of Schedule 1 or its criteria. There have been updates since 1981 (the addition of capercaillie) but JNCC is not aware of that anyone has audited these changes at a UK level."
Any review would be a devolved matter – England, Scotland and Wales could review independently of one another, but it's apparent talking to those in the know in conservation circles that there's some nervousness about reopening legislation in fear of what could be watered down or removed. Perhaps, given our current government, this reluctance to revisit wildlife laws has some substance, but it does beg the question as to whether Schedule 1 is fit for purpose and actually still relevant in protecting some of our newest rare breeders in a changing climate.
The lack of any formal periodic review of our rarest breeding birds and the legislation that protects them speaks volumes about how our current system of governance clearly lacks an understanding of nature and how best to protect it.