Commentary on Sections Part 3 – Repeals of Welsh Legislation Part 14 – Amendment of Schedule 9 to the Wildlife and Countryside Act 1981
180.Invasive non-native species are generally managed using powers under the Wildlife and Countryside Act 1981 (‘the 1981 Act’). Schedule 9 to the 1981 Act lists certain plant and animal invasive non-native species that have become established in the wild in Great Britain, but that the law seeks to prevent spreading further. Section 14(1) of the 1981 Act makes it an offence to release or allow to escape into the wild any animal that is not ordinarily resident in Great Britain and is not a regular visitor to Great Britain in a wild state, or that is listed in Part 1, 1A or 1B of Schedule 9 to the 1981 Act. It is also an offence under section 14(2) to plant or otherwise cause to grow in the wild any plant listed in Part 2 of Schedule 9 to the 1981 Act.
181.Additional powers are available under the Invasive Alien Species Regulation 1143/2014 (the ‘retained regulation’, i.e. the retained EU law version of Regulation (EU) No 1143/2014 of the European Parliament and of the Council of 22 October 2014 on the prevention and management of the introduction and spread of invasive alien species) and the Invasive Alien Species (Enforcement and Permitting) Order 2019 (S.I. 2019/527) (‘the 2019 Order’) to help manage invasive species that are considered higher risk (known as “species of Union concern” under the EU Regulation or “species of special concern” under the retained regulation).
182.The retained regulation imposes strict restrictions on anything in the list of “species of special concern”. These are species of animals and plants whose potential adverse impacts across Great Britain are such that concerted action is required. The restrictions on these species mean they cannot be intentionally imported, kept, bred, transported, sold, or released into the environment. The 2019 Order provides for the enforcement regime for the retained regulation.
183.Some invasive non-native species formerly controlled under the 1981 Act were removed in 2019 from Schedule 9 to be regulated under the Invasive Alien Species Regulation. This was for the purposes of consistency, preventing overlap of similar offences and reducing the potential for confusion amongst users of the legislation. Schedule 4 to the 2019 Order included provision to remove species from Schedule 9 to the 1981 Act that are also species of special concern. The offences within section 14 of 1981 Act relating to release or allowing the escape of these species into the wild were replicated in the 2019 Order to ensure there was no reduction in protection.
184.In July 2019 Commission Implementing Regulation (EU) 2019/1262 updated the list of species of Union concern including the addition of three species that are also listed in Schedule 9 to the 1981 Act (New Zealand flatworm (arthurdendyus triangulatus, which is also known as artiposthia triangulata), pumpkinseed (lepomis gibbosus) and giant salvinia (salvinia molesta)).
185.In 2021 Defra introduced the Wildlife and Countryside Act 1981 (Variation of Schedule 9) (England) Order 2021 (S.I. 2021/236) (‘the 2021 Order’) to remove these three species from Schedule 9 to the 1981 Act in relation to England, so that they were only regulated under the Invasive Alien Species Regulation. No similar tidying up provision has been made in relation to Wales to date, which means these species are listed in Schedule 9 to the 1981 Act and regulated by the Invasive Alien Species Regulation.
186.Paragraph 53 of this Schedule to the Act now amends Schedule 9 to the 1981 Act to remove the three species in relation to Wales.