Scottish Executive

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Prohibition on the keeping, transport and sale or exchange, of Annex IV(a) specimens taken from the wild, except for those taken legally before the Directive was implemented.

Proposal to licence continued possession of specimens legally taken or killed between 10 June 1994 and the date the Habitats Regulations 2006 come into force. This proposal must be considered in the light of the proposed changes to the licensing provisions in Regulation 44 detailed under paragraph 34.

Proposal to protect all houting in Scotland (and not just those found in certain sectors of the North Sea ) and to add to Schedule 2 of the Habitats Regulations (EPS - European Protected Species).

Proposal to allow certain activities to continue for reasons of public interest under licence. It would be possible to licence certain activities that would result in the deliberate disturbance of an EPS animal or destruction of a breeding site provided this did not cause the disturbance of the species in general (e.g. by reducing survival chances, breeding success or reproductive ability). The impact resulting from the removal of the incidental defence from Regulation 43(4) is also being considered in this manner in relation to the offence under Regulation 43(1)

There are three options on how to protect EPS under the Wildlife and Countryside Act 1981 (“WCA”):

• Amend the defence and licensing provisions of the WCA
• Remove EPS from the provisions of the WCA and protecting them entirely by the Habitats Regulations.
• Remove the EPS from Schedule 5 of the WCA, but not Schedule 6. EPS would receive the protection awarded under Schedule 6 in relation to the prohibition on certain methods of killing but the offences in relation to killing,taking, trade, and possession would be solely dealt with under the Habitats Regulation

Prohibition on the keeping, transport and sale or exchange, of Annex IV (b) specimens taken from the wild, except for those taken legally before the Directive was implemented.

We are considering whether it is appropriate to licence continued possession of specimens of plants already taken in the wild. We would welcome your views, and specifically if the term “wild plant” requires definition to ensure domestically or commercially cultivated varieties of these plants are excluded.

Regulation 11 amends regulation 44 so that the purposes for granting licences under regulation 44 more fully reflect Article 16 of the Habitats Directive – in particular Article 16(1)(e).

Regulation 12 sets out specific conditions which licences issued under the new power must contain. We welcome your views on the creation of the new licensing power and whether the conditions applied to such licences are appropriate.

We propose to introduce a new offence of contravening or failing to comply with any condition imposed on the grant of a licence issued under regulation 44. We propose that a person found guilty of the offence is to be liable for a fine not exceeding level 5 on the standard scale (currently £5,000).

Schedule 1 of the draft Habitats Regulations 2006 inserts a new Part 4A (new regulations 85A to E) into the Habitats Regulations requiring appropriate assessment of land use plans when such plans are likely to have a significant effect on a Europe an site and are not directly connected with or necessary to the management of the site. A list of criteria is given to allow competent authorities to determine reasons of overriding public interest and compensatory measures in those exceptional circumstances where an authority wishes to proceed with a plan following a negative assessment of the implications for the site.

Transposition would be achieved by amending Part IV of the Habitats Regulations (through draft Regulation 15) to specifically include reference to the new regime for protection of the water environment established by the Water Environment (Controlled Activities) (Scotland) Regulations 2005 (CAR). If SEPA judges that the granting of a new water use licence might have a significant effect on a Europe an site, it will be required to make an appropriate assessment of the implications for the site in view of the site’s conservation objectives. In light of the conclusions of the assessment, and subject to regulation 49, SEPA can only grant consent after having ascertained that the granting of a licence will not adversely affect the integrity of the Europe an site. These provisions will also apply when SEPA comes to review an existing consent.

To ensure that the obligations of the Directive are explicitly assigned, a specific statutory duty will be placed on Scottish Ministers to undertake surveillance of conservation has been added to the draft regulations, at regulation 5.

There is a further specific requirement on the Scottish Ministers, where measures are taken under Art. 14(2) of the Directive, to carry out surveillance of Annex V species to ensure the maintenance of favourable conservation status of the species concerned. It is proposed that this duty could be refined so that it will only cover those Annex V species for which the United Kingdom is within their natural range

UK legislation does not include an express statutory duty to monitor the incidental capture or killing of EPS animals. It had previously been considered that this was unnecessary in order to transpose Article 12(4) of the Habitats Directive in view of regulation 3 of the Habitats Regulations. However, in Case C-6/04, the ECJ reached a different view and so to provide for greater legal clarity, regulation 9 inserts a new regulation 41A into the Habitats Regulations.

Regulation 19 makes technical amendments to Sections 1 and 10 of the Conservation of Seals Act 1970. This is to meet the judgment in Case C-6/04 (at paragraphs 99 to 105) where the ECJ found that the Act contained an element of legal uncertainty as to the full range of methods of killing and taking seals prohibited inthe United Kingdom.

• The Draft Conservation (Natural Habitats, &c.) Amendment ( Scotland ) Regulations 2006
• Schedule 1, Regulation 17 “Part 4A – Appropriate Assessments for Land Use Plans”
• Schedule 2, “Schedule 2A – Excluded Populations of certain species”