3 Legislation
56. The proposed EU regulation states
that "in order to guarantee compliance with this Regulation,
it is important that member states impose dissuasive, effective
and proportionate sanctions for infringements; taking into account
the nature and gravity of the infringement, the principle of recovery
of the costs and the 'polluter pays' principle."[122]
Existing legislation
57. Section 14(1) of the 1981 Wildlife
and Countryside Actmakes it illegal in England and Wales to allow
any animal which is notordinarily resident in Great Britain,
or listed in Schedule 9 of the Act, to escape or be released into
the wild. That Schedule 9 prohibition also apples to plants.The
Act alsocreates an offence of selling, offering or exposing for
sale, or possessing or transporting for the purposes of sale,
non-native species that are listed in Schedule 9.[123]
TheWildlife and Natural Environment (Scotland) Act 2011 and the
Code of Practice on Invasive Non-native Specieshas similar
provisions for Scotland, but rather for species outwith its
native range rather than notordinarily residentor in
the wild.[124]
SCHEDULE 9
58. Carrie Hume told us that Schedule
9 was effectively a blacklist (paragraph 26) on release of species
into the wild "which has never been used to prosecute".
There was low public awareness of what species were listed.[125]Trevor
Salmon from Defra told us that a statutory instrument to ban the
sale of five plant species was coming into force shortly. Carrie
Hume told us that the consultation on that had taken a number
of years, and that the process had been "rather closed"
and "not clear".[126]The
process was taking a long time, Trevor Salmon told us, because
it was the first time it had been done.[127]
Mark Spencer told us that:
experience of the last few years
of any form of listing has been that it has been quite foggy at
times in terms of process, and species have remained or come on
and off the list often for very interesting reasons. Other species
have never been on the list because of cultural biases.[128]
He gave the example of the Buddleja
(Butterfly Bush), which has been established in the wild since
the 1920s and is now one of the most abundant shrubs in urban
and suburban areas. There were increasing concerns about its impacts
on biodiversity, but it had never been listed.[129]
59. Trevor Salmon from Defra told us
that the Environment Agency issues guidance on how to tackle particular
invasive species or pests.[130]
Max Wade complained, however, that some listed species did not
have risk assessments, so there was no information to back up
the Schedule 9 listing. He told us that "there is very little
or no guidance on how to implement Schedule 9, so if you are faced
with a plant on your land that you may be at risk of spreading—Cotoneaster
would be an example—and what do you do about it?".
He told us that Schedule 9 was "largely responsible for the
Japanese Knotweed chimera that has developed over the decades":
The people who put Japanese Knotweed
on Schedule 9 of the Wildlife and Countryside Act in the first
place did not intend to happen what has subsequently happened.
They did not see the demonisation of a plant and a multimillion
pound industry.[131]
There was, he said, the potential for
another control industry to emerge for Cotoneaster. [132]
60. Given the lack of prosecutions
under Schedule 9 it seems doubtful that on its own it can provide
a mechanism to "impose dissuasive, effective and proportionate
sanctions for infringements" as required by the proposed
EU regulation. Due to a lack of transparency and clear guidance,it
appears to have done little to raise awareness of the environmental
impacts of releasing non-native species.
61. The Government should take the
opportunity of the Law Commission Review of Wildlife Legislation
(paragraph 62) and the introduction of the proposed EU regulation
to revamp the Schedule 9 process, including providing a transparent
listing mechanism overseen by the Non-native Species Secretariat.
There should be clearly stated and agreed criteria for listing,
similar to those for the UK Plant Health Register,and that list
should be publicly available and continuously updated on the basis
of risk assessment (paragraph 29).
Species Control Agreements and
Species Control Orders
62. As part of its Defra-commissioned
Review of Wildlife Legislation, the Law Commission has
considered reforms to non-native species legislation, including
whether additional powers are needed to allow control of invasive
species on land without the consent of owners.[133]The
Wildlife and Natural Environment (Scotland) Act 2011 already gives
powers to Scottish ministers to issue 'species control orders'
to undertake eradications without the landowner's permission and
for the costs to be recovered from landowners that allow non-native
species to get "out of control". Based on the Scottish
model, the Law Commission recommended a four stage process—investigation,
'species control agreements', 'species control orders' when an
agreement cannot be reached or is not carried out, and enforcement
to ensure compliance with an order. The Law Commission raised
concerns that the not ordinarily resident definition of
non-native species in the existing England and Wales legislation(paragraph
57) would need to be clarified.
63. In England, order-making bodies
would include Natural England and the Environment Agency. In response
to concerns raised in the consultation on the legislation, the
Law Commission recommended that order-making bodiesshould be obliged
to consider the proportionality of proposed measures. With regard
to powers of entry, the Law Commission considered that a warrant
was only necessary if forced entrance was required to land or
property. Most of our witnesses were supportive of the introduction
of control orders, particularly for rapid response plans (paragraph
44). Stan Whitaker told us that, although powers came into force
in 2012 in Scotland, there had not been any prosecutions or species
control agreements issued so far, although "one was under
negotiation".[134]
Nevertheless, Scottish Natural Heritage saw the powers they had
as a useful tool to formalise action where it needed to be taken
and they were likely to use them in rapid response cases in the
future.[135]
64. Adrian Jowitt told us that Natural
England believed the proposed powers would be a useful tool for
them.Helen Bayliss and Niall Moore thought they would be useful
for rapid response plans.[136]
Niall Moore believed that the Ruddy Duck eradication programmehad
been delayed by two years because of a lack of powers of entry.[137]Geoff
Bateman told us that the Environment Agency already had powers
of entry under other existing legislation,[138]
but it was better to use voluntarily approaches, "keeping
the powers as a back-stop".[139]
65. There is a clear need for species
control agreements and species control orders to ensure effectiveness
of rapid response plans to eradicate invasive species before they
can become established. They could help avoid wasted effort and
expenditure on large-scale control or eradication programmes,
which might otherwise fail if access to all affected land could
not be secured.The Government should implement the Law Commission's
recommendations to tighten the invasive species legislation for
England and Wales, which should be a priority for the Government's
legislative agenda.
122 European Commission, Draft Regulation on the prevention and management of the introduction and spread of invasive alien species
(2013) Back
123
Section 14Za of the Wildlife and Countryside Act, as inserted
by Section 50 of the 2006 Natural Environment and Rural Communities
Act. Back
124
Invasive species are also subject to a range of sector-specific
legislation including the Import of Live Fish Act 1980, Plant
health Act 1967, Destructive Imported Animals Act 1932, The Dangerous
Wild Animals Act 1976, Environment Protection Act 1980, Bees Act
1980 and the Salmon and Fisheries Act 1975. Back
125
Q71 Back
126
Q63 Back
127
Q265 Back
128
Q67 Back
129
ibid Back
130
Q266 Back
131
Q114 Back
132
Qq111, 114 Back
133
Law Commission, Wildlife law: Control of invasive species, HC
1039 (February 2014) Back
134
Q223 Back
135
Q225 Back
136
Qq33 [Helen Bayliss], 69, 232 [Niall Moore] Back
137
Qq212, 229 Back
138
Water Resources Act, the Salmon and Freshwater Fisheries Act and
the Import of Live Fish Act. Back
139
Q229 Back
| 
