EU Regulation (1143/2014) on the prevention and management of the introduction and spread of invasive alien species.
EU Regulation 1143/2014 (external link) was retained in Scots law under the European Union (Withdrawal) Act 2018 (external link) (“the Scottish Retained EU Regulation”). In Scotland EU Regulation (1143/2014) was amended through the Invasive Non-native Species (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (external link) (“the 2020 Regulations) to ensure operability following the UK’s exit from the EU. It applies to Scotland only.
The Scottish Retained EU Regulation adopts the EU list of invasive species of Union concern as the Scottish list of species of special concern. These are species whose adverse impacts across Scotland are such that particular action is required in order to effectively prevent, minimise or mitigate those adverse impacts in a cost efficient manner. These species cannot be brought into Scotland, kept, bred, transported, placed on the market, used or exchanged, allowed to reproduce, be grown or cultivated, or released into the environment. However, there are some limited exceptions to these restrictions.
The Scottish Retained EU Regulation also enables the Scottish Ministers to add or remove species from the Scottish list of species of special concern when certain criteria are met and commits them to undertaking a comprehensive review of the Scottish list every 6 years. At present the Scottish list of species of special concern is identical to the GB list of species of special concern. Articles 27 and 28 of the Regulation stipulate that the Scottish Ministers shall be assisted on INNS by a Committee and shall ensure the participation of a Scientific Forum in providing advice on any scientific question related to the application of the Regulation. Part 2 of the 2020 Regulations amends the Wildlife and Countryside Act 1981 in order to implement enforcement of the retained Regulation and emergency measures made under that Regulation.
Permits issued in Scotland
Permits may be issued in Scotland under Article 8 of the Scottish Retained EU Regulation to carry out a number of activities including research on, ex-situ conservation of, and the scientific production and subsequent medicinal use of species of special concern where this is appropriate. Under section 16 of the Wildlife and Countryside Act 1981, the licensing authority in Scotland is NatureScot (formerly known as “Scottish Natural Heritage”) (external link). At present the Animal and Plant Health Agency (APHA) is unable to issue permits in Scotland on behalf of the Scottish Government. A further update will be provided on this in due course.
Wildlife and Countryside Act 1981 (“the WCA”)
As relevantly amended by the Nature Conservation (Scotland) Act 2004, the Wildlife and Natural Environment (Scotland) Act 2011, the Conservation (Natural Habitats, &c.) (Miscellaneous Amendments) (Scotland) Regulations 2019, Invasive Alien Species (Enforcement and Permitting Order) 2019 and the Invasive Non-native Species (EU Exit) (Scotland) (Amendment etc.) Regulations 2020.
The Wildlife and Countryside Act 1981 (external link) (Sections 14 to 14P) is the principal legislation dealing with non-native species in Scotland.
Section 14(1) of the Act makes it illegal to release, allow to escape from captivity, or otherwise cause an animal to be at a place outwith its native range. The Scottish Ministers may specify by means of an order other animals and plants which fall under this offence.
Section 14(2) makes it illegal to plant or otherwise cause a plant to grow in the wild at a place outwith its native range. However, in certain circumstances licences may be issued under section 16 of the 1981 Act for releases or planting of species outwith their native range, for example during reintroduction projects. It is a defence to an offence in section 14(1) or (2) if the accused can show that they took all reasonable steps and exercised all due diligence to avoid committing the offence. Offences under section 14 carry a maximum penalty of a £40,000 fine and/or 12 months imprisonment on summary conviction and an unlimited fine (i.e. whatever the court feels to be commensurate with the offence) and/or 5 years imprisonment on indictment.
Section 14AA creates offences for the contravention of the Scottish Retained EU Regulation where such activities do not already constitute an offence under the WCA. A person who commits an offence under section 14AA is liable on summary conviction to imprisonment for a maximum term of 12 months or a fine of up to £40,000 (or both). On conviction on indictment a person would be liable to imprisonment for a term not exceeding 2 years or a statutory maximum fine.
Section 14AB creates offences for contravention of emergency measures introduced under the Scottish Retained EU Regulation. A person who commits an offence under section 14AB is liable on summary conviction to imprisonment for maximum of 12 months and/or the statutory maximum fine. On conviction on indictment, the person is liable for a maximum of 2 years imprisonment and/or a fine.
Part 2 of Schedule 9B lists defences to a charge of committing an offence under section 14ZC, 14A or 14AA, of the WCA where the activity to which the charge relates contravenes the Scottish Retained EU Regulation. Schedule 9B also contains provision restricting the granting of a licence (under section 16(4)(c) of the WCA) permitting an activity which contravenes the Scottish Retained EU Regulation.
Species control agreements and orders
Sections 14D to 14O of the WCA deal with species control orders. A species control agreement is a voluntary agreement between a relevant body and the owner or occupier of a premise(s) to control or eradicate invasive animals or plants outwith their native range. Section 14D enables a relevant body to make a species control order in respect of premises where it is satisfied of the presence of an invasive animal or plant at a place outwith its native range. These powers, which include powers of entry, are dependent on the conditions set out in subsections (2) to (4) which relate to species control agreements.
Further guidance is available on species control agreements and species control orders in Scotland in the Code of Practice on Non-Native Species (external link).
Keeping and Release and Notification of specified invasive animals and plants
Section 14ZC of the WCA prohibits the keeping etc. of invasive animals or plants as the Scottish Ministers may specify by order. However, it is a defence to an offence in section 14ZC if the accused can show that they took all reasonable steps and exercised all due diligence to avoid committing the offence.
Part 2 of Schedule 1 of the Wildlife and Countryside Act 1981 (Keeping and Release and Notification Requirements) (Scotland) Order 2012 (external link) (as amended by the Wildlife and Countryside Act 1981 (Keeping and Release and Notification Requirements) (Scotland) Amendment Order 2019) specifies types of animals for which it is an offence for a person to keep, have in their possession or have under their control under section 14ZC(1)(a) of the WCA. Part 2A of Schedule 1 specifies types of invasive plants for which it is an offence for a person to keep, have in their possession or have under their control under section 14ZC(1)(b) of the WCA.
A person found guilty of an offence under section 14ZC will be liable on summary conviction to a maximum of 12 months imprisonment and/or a fine not exceeding £40,000; and on conviction on indictment, to a maximum of 2 years imprisonment and/or an unlimited fine.
Article 4 of the 2012 Order requires that an occupier of land must notify NatureScot without delay if they become aware of any invasive animal listed in Part 3 of Schedule 1.
Section 14B gives Scottish Ministers the power to make provision (by order) about the notification of the presence of invasive animals or plants at any specified place
outwith their native range where persons are, or become, aware of the presence of such animals or plants. It is an offence to fail to make such a notification without having a reasonable excuse. This offence carries a penalty on summary conviction of a fine not exceeding level 5 on the standard scale or a maximum of 6 months imprisonment.
Sale etc. of specified invasive animals and plants
Section 14A of the WCA prohibits the sale etc. of specified invasive animals or plants. It is an offence for any person to sell, to offer or expose for sale, to have in their possession, or to transport for the purposes of sale, any animal or plant to which the offence applies. It is also an offence for a person to publish, or cause to be published, any advertisement likely to be understood as conveying that the person buys or sells, or intends to buy or sell, any animal or plant to which the offence applies. These offences apply to any type of invasive animal or plant that the Scottish Ministers specify by means of an Order. The Wildlife and Countryside Act 1981 (Prohibition on Sale etc. of Invasive Animal and Plant Species) (Scotland) Order 2019 (external link) specifies the types of invasive animals and plants to which section 14A of the WCA applies..
A person guilty of an offence under section 14A of the WCA is liable on summary conviction to a maximum of 12 months imprisonment and/or to a fine not exceeding £40,000; and on conviction on indictment, to a maximum of 2 years imprisonment and/or an unlimited fine.
Code of Practice on Non-Native Species
Under section 14C of the Act, a Code of Practice on Non-Native Species (external link) was created and approved by the Scottish Parliament in 2012. The Code sets
out guidance on how those having non-native species under their ownership, care and management should act responsibly so that these species do not cause harm to our environment. It aims to help everyone, including people who manage land containing non-native plants and animals or who are involved in the keeping of non-native plants and animals, to understand their legal responsibilities. Section 14C also extends the information that may be included in the Scottish Ministers’ code of practice so that it may now include:
- which species, sub-species or lower taxons of animal, plant, fungus or micro-organism are considered to be invasive alien species;
- guidance on best practice for keeping invasive alien species and measures for preventing their escape and reproduction; and
- the circumstances in which an invasive alien species is considered to be a companion animal.
Further advice and guidance on invasive non-native species in Scotland can be found on the NatureScot website (external link).
Section 19ZC(3) of the WCA gives wildlife inspectors in Scotland powers to enter and inspect any premises (excluding dwellings) for the purpose of ascertaining whether an offence under section 14 is being, or has been, committed on those premises.
Section 19ZC(5) of the WCA gives wildlife inspectors in Scotland powers to require any person who has a specimen in his/her control to make it available for examination if the wildlife inspector needs to ascertain whether an offence under section 14, 14ZC, 14A, 14AA, 14B or 14K is being, or has been, committed in respect of that specimen.
Section 19ZD of the WCA gives wildlife inspectors in Scotland powers to require the taking of a sample of blood or tissue from a specimen found by the inspector in order to determine its origin, identity or ancestry. These powers apply where the inspector needs to ascertain whether an offence under section 14, 14ZC, 14A, 14AA, 14B or 14K is being, or has been, committed.
Common law nuisance and personal injury claims
Landowners are expected to take reasonable steps to prevent invasive non-native plants causing a nuisance or injury to others. Where a landowner fails to take reasonable steps to prevent invasive non-native plants spreading onto someone else’s property this can amount to a common law nuisance. Landowners may also risk personal injury claims if they fail to take appropriate action to protect people from giant hogweed growing on or adjacent to areas accessed by the public.
The Alien and Locally Absent Species in Aquaculture (Scotland) Regulations 2015
The Alien and Locally Absent Species in Aquaculture (Scotland) Regulations 2015 (external link) provide for the implementation and enforcement of Aquaculture Regulation (EC) No 708/2007 concerning the use of alien and locally absent species in aquaculture, specifically rainbow trout and Pacific oysters. A permit is required for the introduction of alien species for their use in aquaculture and the Regulations set out conditions for the issuing of permits as well for as their amendment, suspension and revocation. They also set out requirements for monitoring and risk assessment, in addition to creating offences and penalties Part 3 sets out conditions for the movement of species listed in Annex IV to Council Regulation 708/2007 concerning the Use of Alien and Locally Absent Species in Aquaculture.
Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003
Section 33A of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 (external link) (as amended by the Aquaculture and Fisheries (Scotland) Act 2007) prohibits the introduction of live fish and live fish spawn into inland waters without consent unless the inland waters concerned constitute, or are included in, a fish farm. District Salmon Fishery Boards (where they exist) are the appropriate authority for salmon and salmon spawn. For all other species, and salmon and salmon spawn in areas without Boards, the appropriate authority is Marine Scotland
The Aquatic Animal Health (Scotland) Regulations 2009
Part 4 of the Aquatic Animal Health (Scotland) Regulations 2009 (external link) establishes a system for the notification and control of disease outbreaks in aquatic animals. Part 5 sets out provisions for measures which can be taken in relation to the parasite Gyrodactylus salaris including the creation and maintenance of barriers to the movement of any aquatic animal, the treatment of waters with chemical agents; the clearance of fish farms and such other measures as the Scottish Ministers consider appropriate. These measures may only be introduced if an initial or confirmed designation has been made in relation to Gyrodactylus salaris.
The Plant Health (Official Controls and Miscellaneous Provisions) (Scotland) Regulations 2019
The Plant Health (Official Controls and Miscellaneous Provisions) (Scotland) Regulations 2019 (external link) implement Regulation (EU) 2016/2031 on protective measures against pests on plants and, insofar as it relates to plant health, Regulation (EU) 2017/625 of the European Parliament and of the Council.
The Regulations designate the Scottish Ministers as the competent authority responsible for the organisation and performance of official controls and other official activities in Scotland for plant health purposes. These relate to measures in connection with plant health rules and powers which can be used where it is suspected that certain plant pests, plants, plant products and other objects which pose a risk to plant health are present on premises in Scotland. The regulations set out provisions for:
(1) official controls on imports and exports of plants, plant products and other objects from third countries
(2) prevention of the establishment or spread of plant pests within Scotland.
(3) registration of professional operators and authorisations, licences and certificates.
(4) specific measures in connection with measures relating to certain solanaceous species.
They create a number of offences including failing to comply with notices, providing false or misleading information, improper use of plant passports, obstructing inspectors and failing to disclose information. They also set out penalties for these offences and enforcement powers, including powers of entry.
Other relevant Scottish legislation
The Dangerous Wild Animals Act 1976
The Dangerous Wild Animals Act 1976 (external link) has been amended in relation to Scotland) by a number of Acts, Regulations and Orders including the Dangerous Wild Animals Act 1976 (Modification) (Scotland) Order 2008 (“the 2008 Order”). The Act makes it an offence to keep an animal listed in the Schedule without a licence from the local authority. The 2008 Order substitutes a new Schedule for the Schedule to the Dangerous Wild Animals Act 1976, which specifies the kinds of animals to which the provisions of the Act apply.
The Environmental Protection Act 1990
The Environmental Protection Act 1990 (external link) has been amended in Scotland by a number of Orders and Regulations including the Environmental Protection (Duty of Care) (Scotland) Regulations 2014 (external link). The Act and its subsequent amendments do not make reference to non-native species but there is the potential for classification of soil and other waste containing viable propagules of invasive non-native plant species as controlled waste. This has been applied to Japanese Knotweed Fallopia japonica, with the result that waste containing this species must be disposed of in accordance with the duty of care set out in section 34 of the Act. SEPA has issued a technical guidance note on the management of Japanese knotweed and associated contaminated soils (external link).
The Bees Act 1980
The Act (as amended) gives Scottish Ministers the powers prevent the introduction into, or spread within, Scotland of pests and diseases affecting bees. They include measures such as regulating the importation of bees and combs, bee products, hives, containers and other appliances and apparatus used in connection with the keeping or transporting of bees which has or may have been exposed to infection with any pest or disease specified by an Order. In Scotland, a number of orders have been made under the Act including the Bee Diseases and Pests Control (Scotland) Order 2007 (external link), the Bee Diseases and Pests Control (Scotland) Amendment Order 2011 (external link) and the Bee Diseases and Pests Control (Scotland) Amendment Order 2021 (external link).
The Zoo Licensing Act 1981
The Zoo Licensing Act 1981 (external link), as amended by the Zoo Licensing Act 1981 Amendment (Scotland) Regulations 2003, requires zoos in Scotland to implement the conservation measures detailed in section 1A of the Zoo Licensing Act 1981 Amendment (Scotland) Regulations 2003 (external link). For example, the Act requires applicants for zoo licences to submit proposals for implementing the conservation measures and it also requires appropriate conditions to be attached to all zoo licences in order to ensure that the conservation measures will be implemented. The measures include preventing the escape of animals and putting in place measures to be taken in the event of any escape or unauthorised release of animals as well as keeping up to date records of such escapes.
The Animal Health and Welfare (Scotland) Act 2006
The Animal Health and Welfare (Scotland) Act 2006 (external link) sets out provisions on animal health and welfare in Scotland. Part two of the Act places a duty of care on pet owners and others responsible for animals to ensure that the welfare needs of their animals are met, including those of invasive animal species which may be kept under licence. The main provisions of Part 2 of the Act are designed to prevent cruelty, promote welfare and protect animals in distress. The Act makes it an offence to cause an animal unnecessary suffering or to fail to ensure the welfare of animals for which a person is responsible (the duty of care), prohibits the giving of animals as prizes and reaffirms the specific offence of abandonment. It increases the penalties for certain offences and allows an inspector or constable to take possession of an animal which is suffering or likely to suffer. It also allows the courts to make orders to deprive a person of possession or ownership of an animal on conviction for certain offences; and to disqualify a person from participating in animal-related activities following conviction for certain offences.
The Animal Welfare (Licensing of Activities Involving Animals) (Scotland) Regulations 2021
The Animal Welfare (Licensing of Activities Involving Animals) (Scotland) Regulations 2021 Regulations (external link) set out provisions for the licensing of people in Scotland who carry out the following activities: selling animals as pets; rehoming animals as pets; operating animal welfare establishments (including sanctuaries and rehoming centres); breeding dogs; breeding cats; and breeding rabbits. The Regulations require that a person must not undertake a licensable activity if they do not have a licence issued under the Regulations. They also specify the appropriate licensing authorities to which a person must apply for the grant or renewal of a licence and set out how that application must be made.