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SECTION 4 - INVASIVE NON-NATIVE SPECIES

PART I - BACKGROUND INFORMATION

The impact of invasive non-native species

Invasive non-native species are species that have been introduced either deliberately or accidentally outside of their natural range, where they become established and cause adverse ecological, environmental or economic impacts.

Together with habitat destruction and climate change, invasive non-native species are regarded as one of the most serious threats to global biodiversity. They are considered the greatest threat to fragile ecosystems, such as those that occur on small islands.

The Audit of Alien Species in Scotland (2001) reported 988 non-native species with established populations in Scotland. This figure does not include fungi or species occurring in the marine environment. In Scotland, freshwater and woodland are two of the habitats where the impacts of non-native species are most significant but Scotland's islands, where important bird populations depend on the absence of ground predators, are particularly vulnerable. In addition, Scotland is vulnerable to marine invasions which, once established, are usually not possible to contain or eradicate.

Apart from the cost in biodiversity terms, invasive non-native species can also result in a huge economic cost to a very wide range of sectors. Work is currently underway to estimate the economic cost of invasive non-native species to Scotland, but recent estimates suggest they cost the GB economy at least £2 billion per annum.

Of course, many non-native species such as those introduced for agriculture, forestry, horticulture, aquaculture and the pet industry contribute to our economic and social wealth, and the legislative framework needs to be flexible enough to take account of those legitimate needs and uses.

Policy approach

The Scottish Government's policy approach is based on the internationally agreed "three-stage hierarchical approach" (V/8, 2000 Conference of the Parties) adopted by the Convention on Biological Diversity ( CBD), to which the UK is a signatory.

In summary, this proposes that preventing the entry and establishment of invasive non-native species should be given the highest priority as this is the most cost-effective and environmentally desirable measure. When this fails, early eradication should be considered as the preferred response, and if this is not possible, then control and containment should be progressed.

Current legislative framework

The UKReview of Non-Native Species Legislation and Guidance (Fasham and Trumper, 2001) noted that there are "over 45 international agreements, non-binding documents and Codes of Conduct" relating to invasive non-native species issues. This has resulted in a complicated and at times incoherent legislative framework. Simplifying and improving the current framework is a key aim of the proposals set out below.

European Directives

The Habitats Directive (92/43/ EEC) and the Birds Directive (79/409/ EEC) require member states to regulate and if necessary, prevent, the introduction of invasive non-native species. The focus of these two Directives is prevention, in line with the three-stage hierarchical approach advocated by the Convention on Biological Diversity.

Domestic legislation

The primary domestic legislation which deals with invasive non-native species is section 14 of the Wildlife and Countryside Act 1981. The 1981 Act transposes the Habitats and Birds Directives into domestic legislation and was amended through the Nature Conservation (Scotland) Act 2004 to implement a number of recommendations from the 2001 Review of Non-Native Species Policy.

The key features of section 14 are as follows:

• it is an offence to allow any animal (including hybrids) which is not ordinarily resident in or a regular visitor to Great Britain, to escape into the wild, or to release it into the wild; or to release or allow to escape from captivity, any animal that is listed on Schedule 9 to the 1981 Act
• it is an offence to plant or otherwise cause to grow in the wild any plant listed on Schedule 9 to the 1981 Act.

Invasive non-native species offences can incur a maximum penalty of a £40,000 fine and/or 12 months imprisonment on summary conviction, and a fine and/or 2 years imprisonment on indictment.

Sections 14A and 14B of the 1981 Act enable the Scottish Ministers to make secondary legislation, and issue guidance, as follows:

• Ministers may specify by order, species which it is an offence to sell, offer or expose for sale, or have in one's possession or transport for the purposes of sale
• Ministers may issue guidance about non-native species. Although non-compliance with the guidance will not be an offence, it can be used as evidence by a court. It can therefore act as a common reference point, and in determining whether the accused acted responsibly or exercised due diligence.

Other relevant domestic legislation is the Import of Live Fish (Scotland) Act 1978, section 33A of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003, the Destructive Imported Animals Act 1932, and the Environmental Protection Act 1990.

Rationale for considering legislative reform

The principal driver for considering legislative reform is that the current legislation is not considered to be effective, particularly because of the numbers of invasive non-native species which have been released since 1981. This includes non-native plant species for which there is currently no blanket ban (as there is for non-native animals) but which may still be highly environmentally and economically damaging. Further releases of non-native animals and plants listed on Schedule 9 (which is intended to prevent their release) have also occurred since the species have been listed on the schedule (including new populations of high-impact species such as North American signal crayfish, Japanese knotweed and muntjac deer).

Despite the fact that a significant number of non-native species have been released since 1981, only 3 cases have been reported to the Procurator Fiscal Service in Scotland. Of these only one was prosecuted, and was for the alleged release of North American signal crayfish into the wild; this case ended in an acquittal.

A number of reviews and policy documents have recommended amendments to improve non-native species legislation. The Invasive Non-Native Species Framework Strategy for Great Britain was launched by the Scottish Government, Defra and the Welsh Assembly Government in May 2008. It recognised that there are still weaknesses in the current legislative framework with a key action to seek to rectify this by "build(ing) on the research done to date on the current legislation and develop(ing) a package of legislative proposals designed to provide a more coherent and comprehensive framework for tackling invasive non-native species".

During the debate on invasive non-native species held in the Scottish Parliament on 30 October 2008, there was cross-party recognition that there are weaknesses in this area of legislation and that the Scottish Government should review it to ensure there is a coherent and comprehensive framework for tackling invasive non-native species.

Scottish Working Group on Invasive Non-Native Species

A Scottish Working Group on Invasive Non-Native Species co-ordinates the overall response of public sector bodies in Scotland to the environmental, social and economic challenges presented by invasive non-native species, and supports the effectiveness of wider action at the GB level.

The proposals below have been developed by the Scottish Working Group along with consultation with key stakeholders. The proposals apply to Scotland only ³

PART II - PROPOSALS FOR LEGISLATIVE REFORM

The main focus of this section is the Wildlife and Countryside Act 1981 as it is the principal legislation relating to non-native species.

The proposed reforms focus on a number of key issues:

Issue 1. Strengthening the current legislation aiming to prevent release of invasive non-native species and providing powers to control invasive non-native species

Issue 2. Additional powers relating to causing and permitting an offence

Issue 3. Overlap with other legislation or where legislation could be extended

Issue 4. Changes via secondary legislation ⁴

Issue 1 - Strengthening the current legislation aiming to prevent release of invasive non-native species and providing powers to control invasive non-native species

The current position

There are a number of particular difficulties with the operation of existing invasive non-native species legislative provisions.

Definitions

Section 14 of the 1981 Act does not currently define key terms. As ambiguity exists around some of these terms (such as what constitutes being "in the wild"), this may be a contributing factor to the lack of prosecutions under this legislation. A number of definitions that may prove useful are provided through the CBD Guiding Principles (and other European documents).

No rapid updating process

One of the main problems with the current system is that the process to update the list of invasive non-native species in Schedule 9 is lengthy and cumbersome. Since the original additions in 1981, the schedule has been updated five times (March 1992, November 1992, March 1997, April 1999 and June 2005 - Scotland only).

The process to vary Schedule 9, requires Scottish Ministers to consult Scottish Natural Heritage (section 22(2A)) and any local authority or any other person affected by the order and, if appropriate, to cause a public inquiry to be held (26(4)). In practice this means a 12 week consultation is held and the results analysed and published before any changes can be made.

The situation regarding invasive non-native species "ordinarily resident" in the wild can change rapidly and there is a need to ensure that the legislative framework can respond accordingly if we are to be able to prevent further introductions of problem species.

Lack of prevention

Section 14 of the 1981 Act does not currently apply to those animals that are "ordinarily resident" in Great Britain. This reduces its effectiveness in preventing releases of non-native species to the wild because once an animal has been released into the wild and considered "ordinarily resident", it is no longer an offence to release the species unless it has been listed on Schedule 9 to the Act. It is therefore ineffective at preventing further introductions of problem species that have already been released and does not act in a preventative manner.

Similarly, it is not effective in preventing the release of non-native plants into the wild. It is currently only an offence to plant those species listed on Schedule 9 to the Act. This means that there are differing prohibitions relating to plants and animals.

Lengthy lists

The current use of Schedule 9 to list invasive non-native species means the list will continue to grow as more non-native species become established in the wild and therefore need to be added to the schedule. This is potentially confusing and it is unlikely that individuals will search through the various orders that have altered the schedule to determine the most up-to-date listing. The legislation is therefore cumbersome and ineffective.

Fungi and micro-organisms

The Joint Nature Conservation Committee ( JNCC) recommended in 2001 that section 14 be extended to include micro-organisms; with exceptions provided for micro-organisms used for specific purposes such as medicine, veterinary medicine, brewing and food processing.

At present Section 14 of the 1981 Act does not cover the release of fungi and micro-organisms such as phytoplankton and zooplankton (although the definition of "wild plant" in Section 27 of the 1981 Act does include fungi). While there are currently no specific known problems with the release of non-native microorganisms, the fact that section 14 of the 1981 Act does not include them is considered a gap. Including them in the legislation would set a point of reference for their correct disposal.

Translocated species released outside their natural range

Species transferred outside their natural range are a particularly serious issue in Scotland because of the large numbers of Scottish islands, where there are important populations of ground-nesting birds that are unused to ground (or mammalian) predators. In addition, Scotland has a relatively limited number of native fish and translocated species can cause significant problems to them; the severe impact of introduced Ruffe (a fish native to southern England) on Powan in Loch Lomond is a well known example.

Schedule 9 of the 1981 Act could be used to differentiate areas, as has been done previously, to establish the refugia islands for red deer. However, while it may be possible to restrict species being released onto islands, it is more problematic when trying to restrict release to areas of the mainland, or specific water bodies.

No ability to control

There is no requirement in section 14 of the 1981 Act to control specific species or to deal with established invasive non-native species. This is seen as a major failing of the legislation and a reason for the continued spread of harmful invasive non-native species.

Responsibility to address invasive non-native species

A perceived failing of non-native species policy is that no government organisation has responsibility for addressing invasive non-native species issues when they arise. In practice this can mean that while discussions take place over who has responsibility for a species, it becomes too difficult or expensive to do anything about that species.

Work is underway on a GB-wide basis to progress key action 7.11 of the GB Strategy, to "establish a means for clearly designating lead agencies for rapid responses to different taxa and in different circumstances". However, outcomes of this work will relate only to new species and not the control of established species.

No responsibility on individuals and no access to land

There is also currently no power to require individuals to control specified invasive non-native species. In addition, there is no provision for statutory bodies or those acting on their behalf to access land to carry out control programmes without the permission of the land-owner. While it is obviously desirable to obtain agreement and co-operation of landowners in control programmes, there have been a number of cases where landowners have prevented access to land. This is a significant problem where it threatens an eradication programme. A single land-owner can, by denying access to control and failing to carry out control himself, cause an eradication campaign to fail, or allow a new species to become established.

Powers of access and the ability to control other species are already provided for specific purposes through the Animal Health and Welfare (Scotland) Act 2006, the Plant Health (Scotland) Order 2005, the Plant Health (Forestry) Order 2005 and the Deer (Scotland) Act 1996.

Proposals for Reform

Give definitions for (or remove) the various terms in section 14 of the 1981 Act that are considered to be ambiguous

The purpose of this reform is to bring clarity to the legislation by providing definitions for the various terms that are seen as problematic.

Following other reforms proposed below (which will change the emphasis and wording of section 14), some of the terms that are considered problematic may no longer be present and definitions may not therefore be necessary. It is proposed that where the meaning of terms is not clear, definitions should be provided and to ensure consistency, these should be taken from those provided by the Convention on Biological Diversity ( CBD) where they exist.

Q39. Do you consider that providing definitions where the meaning is not clear is useful? Do you think the definitions provided through the CBD Guiding Principles should be used where they are available or do you wish to propose alternatives?

Address the specific issue of "in the wild"

The use of the term "in the wild" is seen as a particular problem as it is fundamental to the current offence. In addition, there is no definition of "wild" provided by the Convention on Biological Diversity.

The policy intention agreed by the Scottish Working Group is that non-native plants or animals (or translocated native ones, outside their natural range) should not be released where they have the opportunity to spread and negatively affect native species and habitats.

There is uncertainty around what the "wild" includes - for example, semi-natural areas and areas of high nature value that may be enclosed by a fence or large estates as part of managed landscapes.

For animals, it may be more suitable to determine the areas or situations that we don't wish species to be released from, as opposed to defining the "wild". For example, with respect to animals, we do not wish them to be released from captivity or from under the control of man on a permanent or temporary basis (similar to the terms provided through the Animal Health and Welfare (Scotland) Act 2006).

It is expected to be more problematic to provide a similar definition for plants. A definition for "in the wild" in relation to plants may need to include all land under extensive (or no) management that retains its semi-natural character and is not subject to commercial cropping. We propose a list of exceptions, some with associated lists of permitted species and others subject to licence.

In addition, species may be able to escape "over the garden wall", from a pond or a marina to the wider environment. It is therefore proposed that there is a responsibility on an owner to ensure animals and plants are kept in such a way as to prevent their escape and that release into seemingly enclosed and private land is an offence if there is no reasonable impediment to the animal or plant escaping and making its way into the wider countryside.

With plants, it is suggested that a landowner would commit an offence to allow or permit a non-native species to spread from their land or managed area (e.g. marina), although there are obviously inherent difficulties with this in relation to the spread of seed (i.e. by wind or water) or fragments (i.e. in the marine environment). Guidance provided for example through the Horticultural Code of Practice already contains information to prevent the spread of different types of plants and it is proposed that this guidance could be expanded to provide responsible actions that can be followed.

It is proposed that a defence could be provided (similar to that in section 14(3) of the 1981 Act), to prove that the accused took all reasonable steps and exercised all due diligence to avoid committing the offence.

Q40. Do you have any comments or suggestions relating to the proposed definition for the "wild", or more appropriate ways this could be determined?

Q41. Do you have a view on the proposal to place a responsibility on an owner to ensure animals are kept in such a way as to prevent their escape and that a landowner would commit an offence if a non-native species spreads from their land or managed area?

Ordinarily resident

The term "ordinarily resident" is also problematic as it means that at present, once a non-native species is present in the wild from one escape it may then be termed "ordinarily resident" which means further releases may not be an offence unless the species is listed on Schedule 9. It is suggested that the term could be removed from the existing legislation. It will be necessary to ensure that migrants and occasional migrants are protected (unless they are considered to be a pest) and that species extending their range and arriving naturally are not included.

Q42. Do you have a view on the proposal to remove the term "ordinarily resident"?

Amend section 14 wording and emphasis - A "No-Release" General Presumption

One of the main issues proposed by the Scottish Working Group is that the legislation should provide the legal backing to the principle that non-native species should not be released to the "wild" (however this term is defined as per discussion above). This is a principle that is easy for people to understand and provides the basis to improve public awareness about the issue. It would replace the current list of species in schedule 9.

The intention is that this reform would:

• reduce bureaucracy and the need for regular consultation
• simplify the legislation
• provide legislative backing to the principle that no non-native species should be released into the wild
• be more preventative
• remove the requirement for numerous lengthy species lists
• remove the requirement to refer to the several orders that have varied the schedule to determine what species are currently prevented from release to the wild
• remove the requirement to update lists on a regular basis (following consultation) to ensure the legislation reflects the current situation with respect to what has been released into the wild

In other words, no species could be released unless they related to a number of exempted areas, activities or species. These exemptions would be necessary in order to allow people to carry out legitimate activities. Possible mechanisms for providing these exceptions might include listing on a schedule or through a licensing system (like the one that is currently in place for release of non-native animals or those listed on Schedule 9).

The following sections set out how we see this reform might work for animals and for plants, and suggests a number of exceptions that we think might need to be provided.

Q43. What are your views on the proposal that a no-release general presumption would provide a more effective and simpler framework?

No-release general presumption - animals

For the purpose of section 14 it is proposed that the term "animals" includes mammals, birds, fish, reptiles, amphibians, invertebrates and zooplankton (essentially, everything from microorganisms to mammals) and includes any part, gametes or propagule of such species that might survive and subsequently reproduce.

If the policy intention above was given effect, this would mean that:

a) no non-native species should be released from the control of man or into the "wild"

b) no species should be released (including native and naturalised species), outside their natural range, from the control of man or into the "wild"

c) no specific named species should be released from the control of man or into the "wild" unless part of a licensed re-introduction programme. This will include former native species (species that were native and that became extinct such as the European beaver) and species of conservation concern (such as hen harriers).

There would obviously need to be exceptions provided for a variety of specific activities where appropriate, these might include:

• temporary release where the expectation is to re-capture the species (for example during activities such as ferreting and falconry, or for pets such as dogs and cats)
• farming of livestock
• release of invertebrates under licence for pest control purposes
• release of former native species under licence for reintroduction and conservation purposes
• release of named game species
• release of invertebrates at the point of capture for entomological survey purposes

It is important that this consultation identifies as many possible exceptions as possible so that the legislation can be both robust and practical.

Q44A. What are your views on the policy intention relating to animals?

Q44B. Can you think of other exceptions that should be included?

No-release general presumption - plants and fungi

For the purpose of section 14 it is proposed that the terms "plant" and "fungi" includes any part, gametes or propagule of such species that might survive and subsequently reproduce. Plant includes lower and vascular plants, marine plants and macro algae.

The policy intention is that:

a) no non-native plant species should be introduced to the "wild"

b) no plant species should be introduced (including native and naturalised species), outside their natural range, to the "wild"

An approach similar to that of animals is preferable, to bring parity and consistency and to provide a more precautionary approach. Many plants are grown in the wider environment for commercial or productive gain, which could serve as an equivalent to "under the control of man". Again, there will obviously need to be exceptions provided for a variety of specific activities where appropriate or for specific species. These might include:

• gardening within privately, publically, and communally owned gardens with clear boundaries
• commercial forestry planting (exemptions listed by Forestry Commission Scotland for commercial and amenity purposes)
• commercial agricultural crop planting (exemptions for commercial and productive purposes)
• the planting of non-invasive non-native species to be used as shelterbelts (subject to licences)
• the planting of non-invasive non-native species within designed or historic landscapes (subject to licences)
• planting of non-invasive species in urban amenity roadside locations

It is important that this consultation identifies as many exceptions as possible so that the legislation can be both robust and practical.

Q45A. Do you consider that this approach will provide a more precautionary approach for the release of plants?

Q45B. Can you think of other exceptions that should be included?

Providing information on the latest commonly agreed scientific view with regard to whether a species is native, and natural ranges of species, is considered important. It is proposed that this could be provided either with reference to published documents such as the Vascular Plant Atlas, or that SNH could provide a list and that information would be made available on the Scottish Government Website.

Q46. What are your views on how information - on whether a species is native or non-native and what its natural range is - should be provided?

Introduce a set of powers enabling specified bodies to take reasonable action to ensure that non-native species or species outside their native range are controlled, contained or eradicated

It is expected that this would be most likely to take the form of discretionary powers for a number of named agencies such as Scottish Natural Heritage, Scottish Environment Protection Agency, Forestry Commission Scotland and for local authorities in addition to any other body or person authorised by Scottish Ministers or the Forestry Commissioners. The plant health order provides an effective set of powers for dealing with plant health pests and it is suggested that similar powers could be useful to deal with invasive non-native species.

The powers provided would cover:

• a power for specified bodies to access land, waterways and marine sites to investigate and survey for non-native species
• a power for specified bodies to require individuals to control and remove specified non-native species contained on their land, site or property
• a power for specified bodies to take action to control, contain or eradicate non-native species, including access to land, waterway or marine site where necessary

In addition, it is proposed that the remit of inspectors on the ground (such as plant, fish and shellfish health inspectors) could be extended so that they are able to deal with invasive non-native species. This could include powers to confiscate and order the destruction of species that are banned from sale under section 14A of the 1981 Act.

Q47A. What are your views on the proposal to introduce a power enabling specified bodies to take reasonable mitigating action to control, contain or eradicate non-native species or species outside their native range?

Q47B. Which organisations should this be provided to?

Q48. What are your views on the proposal to increase the remit of various inspectors to deal with invasive non-native species issues?

In relation both to rapid response and to control programmes, it is important that organisations have the power to locate, identify and control species where necessary.

There have been a number of cases where an eradication programme has been underway and a land owner has denied access to their land, preventing officials determining whether the species were present or carrying out control measures. Due to the damage (both environmental and economic) that invasive non-native species can cause, this situation is a significant concern. A pocket of a species remaining on one person's land could quickly re-colonise the area, undoing the efforts that have been made to eradicate it.

It is proposed that Scottish Ministers should have a power to require individuals to control or remove species from their land.

It is not expected that this would be a power that was used widely, however, it is envisaged that it would be likely to be used in the following situations:

• where an eradication on a catchment basis was underway and where an upstream landowner, who was refusing to carry out control of an invasive plant or animal species, was responsible for re-infesting land or waterways downstream
• where a national eradication programme was underway and where this population posed a current or future threat to the success of that eradication programme
• where a species was considered high-risk and where the population was likely to be a source of spread to the wider environment - e.g. a population of muntjac in someone's garden, or the colonial sea squirt Didemnum in a particular port or aquaculture site
• a newly-arrived species, which is known to be high risk elsewhere, for which early eradication is seen as essential and practical

Q49A. What are your views on the proposal to provide a power to Scottish Ministers to require individuals to control and remove non-native species contained on their land, site, or property (e.g. boat)?

Q49B. How should this power should be used?

It is also proposed that specified bodiesshould be able to obtain access to land to carry out control programmes (and recoup costs) either where it is not suitable to require individuals to carry out control, or where individuals have not complied with a control order.

It is proposed that this power should be similar to that currently provided in section 14(5) of the 1981 Act. This provides that any person authorised in writing by Scottish Ministers may, at any reasonable time, enter any land for the purpose of ascertaining whether an offence has been committed. It is proposed that the purpose for entering land could be extended to investigate, survey and control invasive non-native species.

As with the general power proposed above, it is not expected that this provision would be used widely. The following suggests a situation where it might be used:

A population of American bullfrogs are discovered. These pose a threat to native amphibians both by predation and by transmission of chytrid fungus. Chytrid fungus is a significant threat to natterjack toads, which are rare in Scotland. SNH wish to survey to determine where American bullfrogs are present and to conduct an eradication programme where they are found. A landowner denies access to SNH to survey for American bullfrogs and to carry out any control measures. In this case any rapid response eradication could be threatened by one landowner, unless SNH were able to gain access to the land.

It is proposed that cost recovery should be based on the theory of the Polluter Pays Principle ( PPP) - that those responsible for damage should bear the cost of such damage. However, it is recognised that it can be difficult to trace the establishment of a plant or animal back to an individual, or to prove responsibility for a release or escape.

Q50. What are your views on the proposal that specified bodies should have powers to access land to investigate, survey and control (where access is denied)?

Q51A. Do you consider that costs of any action should be able to be recovered?

Q51B. Do you have any views on how these powers should be used?

Issue 2 - Additional powers relating to causing and permitting an offence

The current position

There are a number of difficulties with the current provisions for the enforcement of invasive non-native species offences.

Difficult to enforce

One of the factors allegedly contributing to the lack of prosecutions under section 14 of the 1981 Act is that it is difficult to enforce the legislation.

Enforcement of section 14 is administered by the police. As with most other offences that are enforced by the police, a prosecution is usually reliant on someone reporting an offence. One of the issues relating to non-native species legislation is that there is a lack of public awareness concerning invasive non-native species issues. The likelihood of members of the public reporting suspected offences is low. Work is progressing at a GB level and within Scotland to improve public understanding of the issues, which will in time be likely to lead to an increase in the reporting of offences (as well as a reduction in releases of non-native species).

Cause and permit

It is not as clear as it should be that it is an offence for any person to direct an individual to carry out an action leading to a section 14 offence. A recent case in Scotland relating to Japanese knotweed did not proceed to court because the individuals concerned had been directed to carry out the action by their employers.

Potential reform

Consider whether an offence relating to cause and permit is required.

Including an offence in section 14 of the 1981 Act relating to causing and permitting a section 14 offence to be carried out, would enable employers to be prosecuted where employees had been directed to carry out work leading to an offence.

Q52. What are your views on the proposal to provide an offence relating to cause and permit?

Issue 3 - Overlap with other legislation or where legislation could be extended

The current position

This section considers other legislation that relates to invasive non-native species, where this overlaps with the 1981 Act, and where provisions could usefully be extended.

Section 33A of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003

The Review of Non-Native Species Legislation and Guidance (Fasham and Trumper, 2001) noted that there was no mechanism to control the introduction of fish to catchments in Scotland. This now exists through the amendments made to the 2003 Act by the Aquaculture and Fisheries (Scotland) Act 2007.

There are overlaps and inconsistencies between the 1981 and 2003 Acts, as well as the Import of Live Fish (Scotland) Act 1978. The 2003 Act applies to intentional introduction of fish only, whereas the 1981 Act offence of releasing or allowing Schedule 9 fish to escape from captivity is a strict liability offence. It is also an offence under the 1978 Act to keep or release the fish species listed in the Act. There are also different penalties - the 1981 Act offence is, on summary conviction, 12 months imprisonment or a £40,000 fine, or both, and on conviction on indictment, two years imprisonment or a fine. The 2003 Act offence is triable on summary conviction with a maximum fine of £1,000; there is no penalty of imprisonment.

Destructive Imported Animals Act 1932

The Destructive Imported Animals Act 1932 makes provision for prohibiting or controlling the importation into, and the keeping within Great Britain, of "non-indigenous mammalian species" with destructive habitats and provides powers to deal with such animals that are at large. Orders under the 1932 Act may ban importation, keeping or both - and can be absolute or allow these activities under licence.

Permanent Orders have been made for musk rats in 1933, grey squirrels in 1937, non-indigenous rabbits in 1954 and coypu in 1987. Temporary orders have been made for mink. There are draft orders proposed for muntjac and deer of the genus Cervus later in this paper.

Potential reforms

Amend or reconcile fish legislation.

It is proposed that the relevant Acts discussed above are amended to ensure that non-native fish species are treated robustly and with equal penalties to other groups of species.

Q53. What are your views on the proposals to ensure fish are treated in the same manner as other species? What is the best way of achieving this?

Extend the provisions of the Destructive Imported Animals Act 1932

The Scottish Working Group considers that the 1932 Act contains some very useful provisions such as the ability to control or prevent import and keeping of species, to specify conditions of keeping of the species, to allow control of species "at large" and the requirement of owners to notify the authorities following escape.

However, there are also some deficiencies including the fact that it only applies to mammals, and only to those that were not established in a wild state in Great Britain between 1882 and at the date of commencement of the 1932 Act i.e. the 50 year period to the commencement of the Act.

It is therefore proposed that the provisions could be applied in other circumstances - for example to species other than mammals, and to those established in the wild before 1882.

Q54. What are your views on the proposal to extend the provisions of the Destructive Imported Animals Act 1932 to include greater numbers of invasive non-native species?

Issue 4 - Changes via Secondary Legislation

Amendments via secondary legislation

There are a number of issues relating to invasive non-native species which can be addressed through secondary legislation. This means that they can be dealt with separately from the prospective Wildlife and Natural Environment Bill, and to an earlier timetable. Since they are part of the wider debate about establishing an effective invasive non-native species legislative framework we wish to raise them in the context of this wider consultation. The issues are set out below, along with a brief description of the process and timescale by which we anticipate they will be dealt.

Amendments via Secondary Legislation under the Destructive Imported Animals Act 1932

Process and timescale

Subject to the views expressed in this consultation, the Scottish Government proposes to bring forward two orders under the Destructive Imported Animals Act 1932 which would deal with issues relating to muntjac and other non-native deer species. Once consultation responses have been analysed, statutory instruments will be prepared and laid before the Scottish Parliament at a suitable opportunity. We anticipate this would be progressed in the autumn of 2009.

Background

Muntjac

Originally from China, muntjac are an invasive non-native species in England and Wales. They are now widespread in south and central England and Wales, with a patchy distribution between the Humber and the Scottish border. They have considerable negative impact on ground flora species that are not generally grazed by native herbivores, such as bluebells.

Figure 1: National Biodiversity Network ( NBN) Gateway Muntjac distribution map including unverified records.

There are currently no verified records of muntjac in Scotland, but there have been a number of unverified records (between 1990 and 2000). The map in Figure 1 is from the National Biodiversity Network ( NBN) Gateway and shows the unverified records described above.

SNH consider that if released in Scotland, muntjac are likely to pose a risk to the Habitat Action Priority habitats of upland oak wood and upland mixed ashwoods, and habitats "Old oak woods with llex and Blechnum and Tilio-acerion".

In 2006 the Deer Commission Scotland ( DCS) carried out an audit of known captive populations of muntjac in Scotland. Of the eight populations known about in 2001, only three remained in 2006. However of the eight original populations - four had recorded escapes - at least one of which is still thought to be at large.

Due to the size and ease of keeping of muntjac it is quite possible that there are other captive populations of which DCS are not aware of in individual collections and other zoos/parks. In addition, muntjac are small enough to be portable and so it is quite possible that someone might transport some animals from England for release in Scotland (particularly as they are becoming increasingly popular as a quarry species in England).

Cervus species

Figure 2: National Biodiversity Network ( NBN) Gateway Sika distribution map including unverified records.

Sika deer ( Cervus nippon) were introduced from Japan to deer parks in Britain in 1860. Lever (1977) reports possible sika escapes from 1896 to 1904 in England, and from 1912 in Peeblesshire, Scotland. The first reports of hybridisation between sika deer and red deer ( Cervus elaphus) are from the beginning of the 1900's, while the first recorded hybrid stag is from 1940.

Since their introduction, sika deer have expanded their range and are particularly common in Sutherland, Argyll, Invernesshire and Peeblesshire. Sika deer have a negative economic impact on forestry by browsing tree shoots, stripping bark and bore scoring (gouging with antlers). The primary concern however is that hybridisation threatens the genetic integrity of the native red deer.

Rationale for legislative reform

The listing of muntjac deer species on Schedule 9 of the 1981 Act has not prevented muntjac escaping from captivity into the wild. The escape of a number of muntjac from a wildlife park in 2004 highlighted the lack of any provision to deal with escapes of this species. Having muntjac defined as deer under section 45(2) of the Deer (Scotland) Act 1996 is not considered desirable as the aim is to prevent muntjac becoming established.

Refugia islands for red deer were established under the 1999 Sika Order of the 1981 Act. This aims to safeguard the red deer on these islands (Outer Hebrides, Arran, Islay, Jura and Rum) and prevent any hybridisation occurring with other deer (particularly sika deer).

At present there are no provisions to control or limit farming of sika, wapiti or hybrid deer on the refugia islands. An escape of a number of deer from a newly established deer farm on Barra in 2007 highlighted the lack of controls on deer farming on the refugia islands and the potential threat to the genetic integrity of the red deer that this poses.

To address this situation two orders under section 10 of the Destructive Imported Animals Act 1932 are proposed:

(1) Progress an Order for muntjac under Section 10 of the Destructive Imported Animals Act 1932

The main purpose of the proposed order for muntjac is preventative: to stop muntjac escaping in future and to provide DCS with powers if muntjac are released or escape (either from a known population, or deliberately translocated as it appears they may have been in England).

Adding muntjac to an order under the Destructive Imported Animals Act 1932 would prohibit the keeping of muntjac in Scotland except under licence. This would ensure that DCS know about all captive populations and could stipulate minimum requirements for enclosures. If muntjac were to escape, DCS would need to be informed and would have the powers to capture or control them.

As there are no verified records of muntjac in the wild in Scotland this Order would not result in a large eradication programme, but is instead a preventative measure.

Q55. What are your views on the proposal to make an Order under Section 10 of the Destructive Imported Animals Act 1932 for Muntjac deer ( Muntiacus reevesi) for Scotland?

(2) Progress an Order for All Cervus species on the "refugia" islands (Outer Hebrides, Arran, Islay, Jura, Rum; and proposed refugia islands - Scarba, Lunga and the Garvellachs) under Section 10 of the Destructive Imported Animals Act 1932

This order would provide controls that would apply to those seeking to keep deer on the refugia islands. This would allow DCS to be satisfied as to the genotype of deer proposed to be kept on the refugia islands, and to potentially refuse applications from those wishing to keep deer that could pose a threat to the integrity of the red deer on these refugia islands.

Q56. Do you consider than an Order under Section 10 of the Destructive Imported Animals Act 1932 should be made for All Cervus species on the "refugia" islands (Outer Hebrides, Arran, Islay, Jura, Rum; and proposed refugia islands - Scarba, Lunga and the Garvellachs)?

Licensing system

It is not proposed to charge any payment for licences issued under either of the prospective orders. Under section 3 of the 1932 Act, Scottish Ministers already have power to grant and revoke licenses and may make regulations with respect to such licences under section 2 of the 1932 Act. The administration of the licensing system will depend on the outcome to the section of the consultation document seeking views on the licensing system. However, it is considered that this could be administered by DCS or Scottish Government, with DCS providing advice to Scottish Minister on licence applications.

Q57. Do you have any comments on how a licensing system for the prospective orders under section 10 of the Destructive Imported Animals Act 1932 should work?

Amendment of Schedule 9 of the Wildlife and Countryside Act 1981

As described earlier in the consultation paper, section 14 of the 1981 Act is not considered preventative and due to the requirement to list species on Schedule 9 is ineffective at preventing introductions of non-native plants and further introductions of species released into the wild.

As an interim measure in advance of any changes being made to the wording and emphasis of section 14 through the prospective Wildlife and Natural Environment Bill (i.e. a no-release general presumption discussed above), we propose that amendments should be made to update Schedule 9 with the invasive non-native species that are established in the environment, in order to give legislative backing to preventing their further release.

A consultation was held early in 2007 on proposals to amend the list of species in Schedule 9 of the 1981 Act. No amendments have yet been made following that consultation. Consultation responses provided a case both for the addition of a number of further species, and against listing some of the species proposed during the consultation. Because of this, we intend to provide a further opportunity to comment on the revised list of Schedule 9.

We intend to publish this list for further comment on the Scottish Government website during the summer. Subsequent to that mini-consultation, we expect to introduce a statutory instrument to the Scottish Parliament. We anticipate this would be progressed in the late autumn of 2009.

Use of powers in section 14A of the Wildlife and Countryside Act 1981

During the consultation in 2007, comments were also sought on a list of species being proposed for listing on an order under section 14A which makes it an offence to sell, offer or expose for sale or have in one's possession or transport for the purposes of sale the specified species.

No order has yet been made following that consultation. Consultation responses provided a case both for the addition of a number of further species, and against listing some of the species proposed during the consultation. Because of this, we intend to provide a further opportunity to comment on the revised list of species proposed for an order under section 14A.

We intend to publish this list for further comment on the Scottish Government website during the summer. Subsequent to that mini-consultation, we expect to introduce a statutory instrument to the Scottish Parliament. We anticipate this would be progressed in the late autumn of 2009.

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