Invasive Species Law and How Scotland Varies from England and Wales

Having done lots of reading about invasive and non-native species (NNS) lately, in some part to do with a recent training course I attended, but mostly out of interest in the subject, I have learnt both amazing and quite frightening facts about invasives in the UK and abroad; whether this to be with their often quite fascinating biology, their vectors for spread, the lengths required to control and eradicate them or even common misconceptions. For me, grasping an understanding of their biology, their means of growth and dominance over other species and the impacts of their often-rapid growth and spread is much easier than getting my head around legislation in the UK. When reading up on the legislation I noticed something at sparked me to dig deeper into legislation and to improve my understanding of how the systems work and what the differences are between Scotland and England and Wales

It’s worth noting that there are several pieces of legislation and regulations that impinges on invasive species management and the operations on construction sites, or even by any business or persons. The most important one that most will be aware off is the Wildlife and Countryside Act 1981 (as amended) (WCA), I will delve into this later. Firstly, let’s look at a few others to be aware of;

  • EU Regulation (1141/2014) on invasive alien (non-native) species – this imposes restrictions on a list of species known as ‘species of Union concern’. These are species whose potential adverse effects across the European Union are such that concerted action across Europe is required.
  • Environmental Protection Act 1990 / Waste (Scotland) Regulations 2012 – this act has limiting provisions for NNS, however it important when dealing with soils and other waste that may contain propagules of invasive NNS species and is therefore to be classed as controlled waste – we have to presume it relates to those species listen on S9 of the WCA such as Japanese Knotweed.
  • Anti-social Behaviour, Crime and Policing Act 2014 – Local councils and police have the power to issue CPNs to those who persistently and continualy act in a way that has a detrimental effect on the quality of life of those in the locality. This includes not dealing with invasive NNS on land that might impact a neighbour if not dealt with
  • National Infrastructures Act 2015 (England and Wales) / Wildlife and Natural Environment (Scotland) Act 2011 – The acts give government the power, through statutory authorities, to enter into control agreements or through control orders with landowners to ensure action is taken against harmful species on their land.
  • Town and Country Planning Act 1990 / Town and Country Planning Act (Scotland) 1992 – Similar to CPN and include issues of nuisance.
  • Hazardous Waste Regulations 2005 / Special Waste Amendment (Scotland) Regulations 2004 – untreated invasive plant material is controlled waste, however if it has been treated with certain herbicides, it may be classed as hazardous / special waste. If handling over 500kg per year, then consignment notes must be produced and the organisation must be registered with the regulator. 

The various acts and regulations above are just some of the powers that may come into force if you have invasive NNS on your site or on your neighbours. But maybe the most important legal mechanism used for the control and management of NNS is the Wildlife and Countryside Act 1981 (as amended); in Scotland this has been amended by the Wildlife and Natural Environment (Scotland) Act 2011.

Having mostly worked in England I was well aware of Schedule 9 of the Wildlife and Countryside Act 1981 (as amended) (WCA), often referring to the list of invasive animals and plants when advising clients about those to be aware of and which required specialised management during a development. In England and Wales, the law reads (see Defra guidance* for definitions);

14 Introduction of new species etc .E+W

(1 )Subject to the provisions of this Part, if any person releases or allows to escape into the wild any animal which—

(a)is of a kind which is not ordinarily resident in and is not a regular visitor to Great Britain in a wild state; or

(b)is included in Part I[F69, IA or IB] of Schedule 9,he shall be guilty of an offence.

(2)Subject to the provisions of this Part, if any person plants or otherwise causes to grow in the wild any plant which is included in Part II of Schedule 9, he shall be guilty of an offence.

As the most common invasives found on sites are plants, this gave a clear definition of those to be aware of and advise about management, whilst other NNS or ‘ornamentals’ were of less concern in terms of duty of care and legal requirements. Having recently worked in Scotland I looked to find a similar list or reference to that list and noticed that none such exists. Scottish Law Reads;

14 Introduction of new species etc. S

[F716(1) Subject to the provisions of this Part, any person who—

(a)releases, or allows to escape from captivity, any animal—

(i)to a place outwith its native range; or

(ii)of a type the Scottish Ministers, by order, specify; or

(b)otherwise causes any animal outwith the control of any person to be at a place outwith its native range, is guilty of an offence.

(2) Subject to the provisions of this Part, any person who plants, or otherwise causes to grow, any plant in the wild at a place outwith its native range is guilty of an offence.

Instead of having a list of ‘invasive’ species the law states that Scottish Ministers may, by order, specify the animals or plants to which the above does not apply or allow different provisions for individual cases.

This therefore appears that Scottish law could have higher repercussions for dealing with non-native plants on sites; any non-native plant whether it be defined in one way or another as invasive or not, or even native to some specific areas of the UK, spread to the wild outside its native range, is an offence. It is therefore worth bearing in mind that, when moving any soils on site or between sites, that the propagules of any plant is not moved to an area that is classed to be outside of its ‘native range’. This further strengthens the call for strict biosecurity measures to be implanted on site, and to have environmental professionals on site to monitor and advise on any the movement of vegetation or soils containing propagules; specialists  with ecology expertise is likely to be required for assessing the ‘native range’ of the vegetation present on site.

*For important definitions including ‘in the wild’ or ‘native’, see Defra Guidance on Section 14 of the Wildlife and Countryside Act, 1981, available from:  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/69205/wildlife-countryside-act.pdf