Environment Audit CommitteeFurther supplementary written evidence submitted by the Royal Society for the Protection of Birds

This second supplementary memorandum responds to some issues raised during the oral evidence given to the Committee on 12 July 2012 by Lord Henley and Richard Benyon. The RSPB would like to clarify its views on controls on the possession of certain pesticides and on invasive non-native species (INNS).

Possession of Pesticides

1. Questions were asked about the use of poison baits to kill wildlife, whether it was currently an offence to possess poisons such as carbofuran and whether there is a need to criminalise possession of certain pesticides by way of the Natural Environment and Rural Communities (NERC) Act 2006 (Q418, Q428 & Q429).

2. Pesticides must be approved for use by Ministers in response to applications from a manufacturer, importer or distributor. Approvals are granted by the Health and Safety Executive (HSE). A set of detailed statutory conditions are drawn up concerning supply, use and storage.

3. Currently, offences are created by improper storage and use of approved pesticides contrary to these statutory conditions, and the improper storage and use of pesticides which have had their ministerial approval removed. Carbofuran is an example of a pesticide which has had its ministerial approval for use removed.

4. Section 43 of the NERC Act 2006 creates an offence of possession of pesticides harmful to wildlife prescribed by the Secretary of State. However, an order listing the prescribed pesticides has still not been made in England, Wales and Northern Ireland.

5. In Scotland, a list of eight pesticides has been prescribed (Aldicarb, Alphachloralose, Aluminium phosphide, Bendiocarb, Carbofuran, Mevinphos, Sodium cyanide and Strychnine) under the Possession of Pesticides (Scotland) Order 2005.

The advantages of the use of the NERC Act over the current regulatory regime

6. The RSPB believes that prohibiting possession of pesticides under the provisions of the NERC Act has several advantages over the current regulatory regime, namely:

6.1Rapid banning of pesticides used in wildlife poisonings. Those who carry out poisoning have shown themselves very adaptable in terms of poisons used. Most of the products with a long-term history of abuse were originally approved products. The approval of several of these was later withdrawn (because of wider health concerns rather than abuse in wildlife cases). It is clear that stocks of these products have remained in circulation; as these stocks have diminished those involved have adapted to using other products. Section 43 NERC provides the mechanism for rapidly adding ingredients to the list once a legal pesticide starts to be used to poison wildlife. The ability of enforcement agencies to effectively deal with such misuse would be severely impaired without Section 43 NERC, as products may retain their approval for legitimate use for many years.

6.2Outlawing commonly abused poisons that still have legitimate use. Several substances commonly used in wildlife poisonings continue to have legitimate use. Consequently, proper storage of these products, despite a person having absolutely no justifiable reason for having them, would be no offence. Section 43 NERC would cover this type of situation, regularly encountered by enforcement agencies.

6.3Section 43 NERC would reduce administrative problems at court. Currently, cases involving substances with no approval (eg Carbofuran) are dealt with under legislation which is triable either way and can be heard at Magistrates’ or Crown Court. This has already caused significant problems in some investigations where a mix of offences under the Wildlife and Countryside Act 1981 (WCA) and pesticide legislation are being investigated. WCA offences are summary only and must be dealt with at Magistrates’ Court. The court dealing with pesticide matters may be unaware of wider concerns involving wildlife matters. In some cases CPS are reluctant to proceed with significant wildlife offences following conviction on pesticide matters, or there are additional costs in having to have hearings in different courts in connection with the same investigation. If the summary offence under Section 43 NERC was enacted, this would allow cases to be held in their totality at Magistrates Court, eliminating this problem.

6.4Section 43 NERC would allow courts to impose custodial sentences. The NERC Act, like the WCA, carries the possibility of a prison sentence. Though pesticide offences are currently triable either way, there is no provision for custodial sentences even at the Crown Court. As those who are typically convicted of these offences may be of limited financial income, a Court is often left with very limited sentencing options.

7. We therefore believe that the full enactment of Section 43 NERC controls would be a powerful tool in the fight against wildlife crime and illegal poisoning in particular. The equivalent offence in Scotland has shown its value with at least ten successful prosecutions involving at least four of the products on the current list, one of which involved the possession of 10.5 kg of Carbofuran, enough to poison the entire Scottish bird of prey population six times over.1 Wildlife crime enforcement agencies see this as an important weapon in the fight against wildlife crime in Scotland. Defra previously accepted the merits of introducing controls on the possession of pesticides by including Section 43 in the NERC Act 2006.

Invasive Non-Native Species (Q448–451)

8. The world’s oceans, mountains, deserts, and weather patterns act as natural barriers to species movement, preventing ecosystems from mixing. Life develops independently in different regions, and this generates a large proportion of global biodiversity. When people move plants and animals from areas where they occur naturally and release them into areas where they do not, these natural barriers are bypassed. Many of these new arrivals are harmless, causing no disruption to the environment or native wildlife in their new locations, but occasionally a species will establish and thrive in a way that can pose a threat to native biodiversity, and/or economic interests. These species are referred to as invasive non-native (or invasive alien) species (INNS/IAS).

9. INNS are one of the principal causes of species extinctions and one of the five main drivers of global biodiversity loss, alongside habitat change, climate change, overexploitation and pollution.2 The impact of INNS on wildlife is measurably intensifying3 as international activities and environmental pressures such as rising CO2 concentrations, warmer temperatures, greater nitrogen deposition, altered disturbance regimes and increased habitat degradation, facilitate further invasions.4

10. Despite this, and their estimated cost to the UK economy of £1.7 billion annually,5 it is widely acknowledged that the existing legislative framework relating to INNS in England and Wales is inadequate to deal with this escalating issue. The national strategy for tackling INNS,6 though advanced in comparison to other EU countries, is largely reliant on voluntary action. Research indicates that voluntary measures, though valuable, are not sufficient on their own. A comprehensive review of the legislative provisions as they apply to INNS in England and Wales—anticipated as part of the Law Commission’s Wildlife Management Project—is timely, and urgent.

11. Some serious omissions to existing statute need to be corrected. For example, the functional definition of “non-native” under the Wildlife and Countryside Act 1981 (as amended) (WCA) omits species that are native to one part of Great Britain that are released in or escape to areas of Great Britain where they are not native. The current statute fails to prevent future problem introductions, and fails to provide adequate regulatory tools to control, contain or eradicate species already established. It is also difficult to enforce. Despite increasing international movements of people and goods and an accelerating rate of non-native introductions, few successful prosecutions have been brought for the release/escape of a non-native species. The lack of formal definitions of terms such as “non-native” and “the wild” are partly responsible, as are difficulties in convincingly demonstrating such concepts as “release” or “allowing to escape” in courts.

12. We draw the Committee’s attention to the Wildlife and Natural Environment Act 2011, which places Scotland at the forefront of EU action to tackle INNS, thanks to the pioneering provisions it contains. We strongly support the precautionary approach adopted by the Scottish Government, which underpins a general no-release principle in relation to non-native species, irrespective of whether or not they are known to be invasive.

13. Given that the impacts on biological diversity of INNS are unpredictable, legislation aiming to prevent harmful introductions should be based on the precautionary approach, in accordance with the guiding principles of the Convention on Biological Diversity.7 The CBD principles recommend the adoption of a three-stage hierarchical approach, within which an effective balance between prevention, control and eradication must be found to ensure that action on INNS should take place at the earliest invasion stage possible. The emphasis on prevention must not preclude action on long-established INNS. It should be remembered that as environmental conditions change, for example through climate change, so long-established but previously non-invasive species might become invasive. Some INNS have shown very long time lags –decades—between initial establishment and the onset of invasive behaviour. Decisions on whether to take action should be risk-based and evidence led, to ensure that limited resources are targeted to the most urgent cases.

14. We believe that INNS legislation should take the approach of broad regulation of release of non-native species, coupled with listed exempt circumstances and activities. Such measures should be combined with a duty on (named) public bodies to investigate and instigate control measures on the most dangerous INNS.

15. In developing proposals relating to the INNS provisions, we have urged the Law Commission to keep track of the European Commissions’ progress in developing an EU strategy towards INNS, which is likely to include a legislative framework. Of the five main drivers of biodiversity loss listed at the start of this section, only INNS lack a dedicated European instrument to tackle them. Birdlife International’s aspirations for a Directive on INNS in Europe are summarised at http://www.birdlife.org/community/wp-content/uploads/2011/02/Low-res-pdf-of-finished-leaflet.pdf.

13 August 2012

1 http://www.rspb.org.uk/Images/birdcrime2010_tcm9-293799.pdf

2 Millennium Ecosystem Assessment, 2005. Ecosystems and Human Well-being: Biodiversity Synthesis. World Resources Institute, Washington, DC. http://www.millenniumassessment.org/documents/document.354.aspx.pdf

3 McGeoch MA et al 2010. Global indicators of biological invasion: species numbers, biodiversity impact and policy responses. Diversity Distrib. 16 p95-108.

4 Clavero, M and García-Berthou, E 2005. Invasive species are a leading cause of animal extinctions. Trends in Ecology and Evolution 20(3), 110.

5 The Economic Cost of Invasive Non-native Species to the British Economy.  CABI 2010. 

6 The Invasive Non-Native Species Framework Strategy for Great Britain

7 http://www.cbd.int/decision/cop/?id=7197

Prepared 16th October 2012