THE PROBLEM

For many years, probably for centuries, bats have hunted and roosted in churches. They have now become less than welcome. In the eighteenth and early nineteenth centuries, a church in Bedfordshire placed a bounty of 6d per dozen on the heads of the animals, and in the 1930s the organist of Binsey found himself unable to distinguish the black keys from the white because the colours were obscured by bat droppings.Footnote ¹ The problem, therefore, is not new. More recently, a debate in the House of Lords, initiated by Lord Cormack, a former Second Church Commissioner, produced a short-lived but vigorous spate of articles and letters in the national press. Complaints about the activities of bats came from far and wide, from North Yorkshire to Northampton and Oxford. The problem seems to be especially acute in East Anglia, however. The greatest cause for complaint was the damage caused to woodwork, floor tiles, alabaster memorials and monumental brasses by faeces and urine. As a moment's reflection shows, these are corrosive (the latter more so) and the effects can be disastrous.Footnote ² In any case, where bats are present in any numbers, someone has the distasteful task of trying to remove the droppings and the urine stains on pews, window sills and floors each time the church is used. It is not unknown for bats to defecate on the heads of incumbents at the altar, which raises questions as to the consequences of bat infestation for the health of clergy, congregations and other church users, over and above the damage to buildings and their contents.

In 2013 the Royal Society published a paper that, in technical scientific language, concluded that bats play host to more viruses than rats or squirrels.Footnote ³ Natural England, the quango with prime responsibility for the natural world (of which more later) recognises that bats present at least three separate potential dangers to the health of humans. These are: infection from bites or scratches; as carriers of a rabies-like virus called European Bat Lyssovirus (EBL); and gastro-intestinal infection through hand-to-mouth transfer.Footnote ⁴ The risks of stomach infection where bat droppings or urine could infect Communion bread or wine are self-evident and a matter of common sense.

There may also be grave direct and indirect economic consequences. First, there is the obvious and recurring cost of removing droppings and urine stains, which may prove indelible in the worst cases. Second, because of the way in which Natural England exercises its regulatory powers, long delays may be imposed on the execution of maintenance or repair works so as not to interfere with the convenience of bats.Footnote ⁵ This can bear heavily on the (often limited) finances of parochial church councils, since grants for these works are often not available.

THE RESPONSE OF THE AUTHORITIES

The reaction of officialdom to the churches’ plight has oscillated between the flippant and the disingenuous. In replying to debates where the point has been made, ministers have set the tone. In a debate on bats and churches on 25 June 2013, the then Under-Secretary of Sate for Environment, Food and Rural Affairs, Richard Benyon, began by saying ‘I was dismayed that not long ago he [the MP who began the debate] had to bring yet another delegation to my office – a Trollopian group of senior clerics and others – to talk about the [bat] problem yet again.’Footnote ⁶ Much the same reaction emerged in the House of Lords twelve months later. There, Lord Ahmad of Wimbledon, a minister in the Department for Communities and Local Government said:

As will appear, the last two sentences were evidently read verbatim from a civil service brief, one wonders with how much understanding on the part of either speaker or audience.

Earlier in the debate Lord Cormack and the Bishop of Norwich, in whose diocese bats give rise to particularly acute problems, had spelled out yet again the burdens imposed on parishes, and asked for understanding. However, the minister chose to ignore their contributions, in effect telling peer and prelate alike that they could lump it.

One incumbent unsurprisingly raised the possibility of obtaining a licence from Natural England, which would allow the bats to be removed from the church, leaving her free to conduct services unmolested. A technical advisor to Natural England responded with, among other things, two comments. First, he declared that there were no known health risks associated with bat droppings, and that they could be safely swept up and disposed of on flowerbeds, as they make good fertiliser. He did not explain why ingestion of fertiliser presents no known health risks. When it was pointed out that he was factually wrong and that Natural England's own literature contradicted his assertion, the Chief Executive took refuge in the euphemism that Natural England had provided a ‘mixed message’. Others might have described the messages in stronger language.Footnote ⁸

The second claim was that ‘a license [sic] will only be granted where it can be shown that the action authorised would not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range’.Footnote ⁹ Insofar as the phrase ‘favourable conservation status in their natural range’ has any discernible meaning, it appears to require the applicant for a licence to show that there will be no risk to the relevant bat population, irrespective of other considerations. If so, that misunderstands the law, as will be seen.

The approach of officials, both ministerial and quango, seems to have been dictated by a body called the Bat Conservation Trust. That name disguises the fact that it is a pressure group dedicated to advancing the interests of bats. By way of example, it proclaims on its website its readiness to carry out ‘bat crime investigations’, presumably with a view to prosecuting those who incur its displeasure. The myth that bats present no significant health hazard also appears to have originated with the Trust, perhaps because of its concern for the bats’ welfare.Footnote ¹⁰

THE LAW

The primary legal source is the European Union Habitats Directive 1994, incorporated into UK law by the Conservation of Species and Habitats Regulations 2010, SI 2010/490. Regulation 41 makes it a criminal offence, punishable with a fine or up to six months’ imprisonment, to do almost anything which disturbs or inconveniences a bat. However, it is a defence to show that what was done was under and in accordance with the terms of a licence granted by Natural England as the authorised licensing body.Footnote ¹¹ Natural England has power to grant licences in five circumstances relevant for present purposes. First, a licence may be given in order to prevent ‘serious damage to property’.Footnote ¹² Thus, where, as has happened, bat urine and/or faeces stain or pit woodwork such as rood screens or pews, floor tiles, alabaster memorials or monumental brasses, there would be a strong case for granting a licence which would lead to removal of the bats from the church.

Second, if public health needs to be preserved, a licence may be granted.Footnote ¹³ So where, for instance, bats defecate on and around an altar and onto the celebrant clergy, most independent observers would see a strong case for a licence, perhaps even an unanswerable one. In this context, the protestations of the Bat Conservation Trust that there is no evidence of damage to health lack conviction. Third, a licence may be granted for the purpose of protecting public safety.Footnote ¹⁴ There having been no recorded instance of bats attacking church users, this ground may be more hypothetical than real. However, there is always a first time, and both English Heritage (owners of Stokesay Castle, which is home to a significant bat populationFootnote ¹⁵) and, as has been seen, even Natural England recognise the existence of the risk.

Fourth, a licence may be justified where ‘imperative reasons of overriding public importance [IROPI], including those of a social or economic nature’, obtain.Footnote ¹⁶ Given that freedom of religion and worship are rights given by human rights legislation, where bats seriously impair the ability to carry on religious worship it could be persuasively argued that this constitutes a reason of overriding public importance. Where, as happens more and more often, churches are used for educational and community purposes, the argument becomes proportionately stronger. Finally, a licence may be granted where to do so would achieve ‘beneficial consequences of primary importance for the environment’.Footnote ¹⁷ One can envisage instances where bats are causing or threatening serious damage to a building or artefact of architectural or historic importance, and where a licence to remove them would be more than justified, since that building would be a contributor to the environment.

Two further conditions remain to be satisfied. First, there must be no satisfactory alternative to the grant of a licence.Footnote ¹⁸ It takes no piercing insight to understand that, where there is a choice between compelling church users to endure their difficulties indefinitely and ending the ordeals by taking practical steps to get rid of the bats, there cannot be a ‘satisfactory alternative’. Second, the interference with the bats must not be detrimental to the maintenance of the population of the species at a favourable conservation status in their natural range.Footnote ¹⁹ The provenance of that Delphic provision has already been noted. Whatever the meaning, it cannot be supposed to carry a guarantee that under no circumstances may a licence pose a threat to the number of bats in the species. Among other things, the numbers of bats in the church in question and the rarity or abundance of the species as a whole will determine whether the requirement is met or not. So far, however, it seems that neither Ministers nor English Nature are prepared to balance these considerations against the protection of the bats no matter how much hardship is inflicted on the users of churches.