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Clause 49 - Sale etc. of invasive non-native species

Natural Environment and Rural Communities Bill – in a Public Bill Committee at 5:45 pm on 28th June 2005.

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Photo of Colin Breed Colin Breed Shadow Minister, Environment, Food & Rural Affairs 5:45 pm, 28th June 2005

I beg to move amendment No. 104, in clause 49, page 18, line 31, leave out from ‘is’ to end of line 32 and insert—

‘included in Part III of Schedule 9’.

Photo of Janet Anderson Janet Anderson Labour, Rossendale and Darwen

With this it will be convenient to take the following: New clause 1—Sale etc. of invasive non-native species (supplementary provisions)—

‘(1)Amend the Wildlife and Countryside Act 1981 (c. 69) as follows.

(2)In section 14(1)(b) (introduction of new species etc.), insert “or Part III” after “Part I”.

(3)In section 14(2) (introduction of new species etc.), insert “or Part III” after “Part II”.

(4)In section 22(5) (power to vary schedules), insert—

“(c)add any animals or plants to, or remove any animals or plants from, Part III of that Schedule.”

After Part II of Schedule 9 of the 1981 Act (animals and plants to which section 14 applies), insert—

“PART III POTENTIALLY INVASIVE OR DAMAGING ANIMALS AND PLANTS NOT NATIVE TO GREAT BRITAIN TO WHICH SECTION 14ZA APPLIES

Duck, RuddyOxyura jamaicensis
Fern, WaterAzolla filiculoides
Hogweed, GiantHeracleum mantegazzianum
Knotweed, JapaneseFallopia japonica
Parrot’s-featherMyriophyllum aquaticum
Pennywort, FloatingHydrocotyle ranunculoides
Stonecrop, Australian swampCrassula helmsii”.’.

New clause 2—Restoration order where offence under section 14 is committed—

‘After section 21 insert—

“21ARestoration order where offence under section 14 is committed

(1)In addition to the penalties in section 21(4), where the operation in respect of which a person is convicted of an offence under section 14 has destroyed or damaged any flora, fauna or physiographical feature, the court by which he is convicted, in addition to dealing with him in any way, may make an order requiring him to carry out, within such period as may be specified in the order, such operations for the purpose of restoring the habitat to its former condition as may be so specified.

(2)An order under this section made on conviction on indictment shall be treated for the purposes of sections 30 and 42(1) and (2) of the Criminal Appeal Act 1968 (effect of appeals on orders for the restitution of property) as an order for the restitution of property; and where by reason of the quashing by the Court of Appeal of a person’s conviction any such order does not take effect, and on appeal to the House of Lords the conviction is restored by that House, the House may make an order under this section which could be made on his conviction by the court which convicted him.

(3)In the case of an order under this section made by a magistrates’ court, the period specified in the order shall not begin to run—

(a)in any case until the expiration of the period for the time being prescribed by law for the giving of notice of appeal against a decision of a magistrates’ court;

(b)where notice of appeal is given within the period so prescribed, until determination of the appeal.

(4)At any time before an order under this section has been complied with or fully complied with, the court by which it was made may, on the application of whom it was made, discharge or vary the order if it appears to the court that a change in circumstances has made compliance or full compliance with the order impracticable or unnecessary.

(5)If, within the period specified in an order under this section, the person against whom it was made fails, without reasonable excuse, to comply with it, he shall be liable on summary conviction—

(a)to a fine not exceeding level 5 on the standard scale; and

(b)in the case of a continuing offence, to a further fine not exceeding £1000 for each day during which the offence continues after conviction.

(6)If, within the period specified in an order under this section, any operations specified in the order have not been carried out, the authorised body may enter the land and carry out those operations and recover from the person against whom the order was made any expenses reasonably incurred by them in doing so.”.’.

New clause 3—Control of invasive non-native species—

‘After section 14ZA insert—

“14ZAA Control of invasive non-native species

(1)Where the Secretary of State considers that a species listed in Schedule 9 is—

(a)present in the wild; and

(b)is an actual or potential threat to the conservation of flora or fauna; or

(c)is an actual or potential threat to social or economic well-being, he must add it to Part III of Schedule 9.

(2)Within three months of a species being added to Part III of Schedule 9, the Secretary of State must nominate an appropriate body that within one year will produce an action plan that identifies how the species should be eradicated, controlled or contained in order to protect threatened flora, fauna, social or economic well-being.

(3)Within three months of the action plan being presented to the Secretary of State, he shall announce to Parliament how the action plan will be implemented.

(4)Pursuant to subsection (3) and in circumstances set out in subsection (5), any person authorised in writing by the Secretary of State may, at any reasonable time and (if required to do so) upon producing evidence that he is authorised, enter any land for the purpose of controlling, containing or eradicating a species listed on Part III of Schedule 9; but nothing in this subsection shall authorise any person to enter a dwelling.

(5)The circumstances are—

(a)that the Secretary of State is satisfied that the body nominated to implement an action plan to control or eradicate a species is unable to conclude, on reasonable terms, an agreement to access land in order for the control, containment or eradication to be effective;

(b)that the nominated body did enter into such an agreement as referred to in subsection (5)(a), but that the Secretary of State is satisfied that it has been breached in such a way that operations to control, contain or eradicate the invasive non-native species are rendered ineffective.

(6)A dispute about whether or not there has been a breach of the agreement for the purposes of subsection (5)(b) shall be referred to an arbitrator appointed by the Lord Chancellor.

(7)More than one person may be authorised for the time being under subsection (4) to enter any land.

(8)A person acting in the exercise of a power conferred by subsection (4) may—

(a)use a vehicle or a boat to enter the land;

(b)take a constable with him if he reasonably believes he is likely to be obstructed;

(c)take with him equipment or materials needed for the purpose for which he is exercising the power of entry.

(9)If in the exercise of a power conferred by subsection (4) a person enters land which is unoccupied or from which the occupier is temporarily absent, he must on his departure leave it as effectively secured against unauthorised entry as he found it.

(10)It is the duty of a relevant authority to compensate any person who has sustained damage as a result of—

(a)the exercise of a power conferred by subsection (4) by a person authorised to do so by that relevant authority, or

(b)the failure of a person so authorised to perform the duty imposed on him by subsection (9), except where the damage is attributable to the fault of the person who sustained it; and any dispute as to a person’s entitlement to compensation under this subsection or as to its amount shall be referred to an arbitrator to be appointed, in default of agreement, by the Secretary of State.’.

Photo of Colin Breed Colin Breed Shadow Minister, Environment, Food & Rural Affairs

The clause relates to invasive non-native species. One of the joys of considering the Bill is that it has been quite an educational exercise. I for one have learned an awful lot about all sorts of things. We move on now to plants and birds, but mainly plants. I have to say that I am to gardening what Frank Spencer is to DIY. I tend to kill off most things in my garden—perhaps I ought to be set on non-native invasive species.

We must recognise that there are real concerns in this regard. This is an important clause, and one that could usefully be expanded, in the light of many of the concerns that have been expressed. I hesitate to make a pun and say that there is a growing problem, but there is. There is now greater access to remote areas of the planet. People can travel to all sorts of exotic places and bring back all sorts of things that they see and think would look nice next to the water feature in their garden. Indeed, there is now greater importation of foods and plant material generally. Of course, sometimes what is imported, or at least what is intended to be imported, is perfectly satisfactory, but other things can piggyback on it—plants, animals, spiders and the like. We therefore have to be careful.

I previously had responsibilities in respect of the Department for Environment, Food and Rural Affairs, and I say to the Minister that we still do not have the controls on our borders that we should have. The potential for non-native invasive species and other problems that can be imported needs to be more thoroughly considered. Anyone who has been to Australia, New Zealand or California will know how seriously those places take such things, and the penalties that can be exacted from someone if they accidentally take in something that the authorities in those places do not want to destroy their orange groves or their agricultural production. We need to take non-native invasive species seriously, and amendment No. 104 and new clauses 1 and 2 expand on that idea. They may look a little wordy—we worked quite hard with other people on them—but they are relatively simple.

New clause 1 contains another list of non-native species, some of which will be familiar, especially to those of us who live in the south-west. I do not know whether it grows throughout the country, but Japanese knotweed is a major problem in our part of the world. Some other species are not so well known, but I am assured that they could cause real problems for us in the country.

New clause 2 would add new provisions for use when an offence has been committed, and provide for a restoration order. Proposed new section 21A(1) says that

“where the operation in respect of which a person is convicted of an offence under section 14 has destroyed or damaged any flora, fauna or physiographical feature, the court by which he is convicted, in addition to dealing with him in any way, may make an order requiring him to carry out, within such period as may be specified in the order, such operations for the purpose of restoring the habitat to its former condition”.

If people have been convicted, they should be responsible for restoration. Much of that work has fallen on local authorities, or sometimes even on other landowners, and those who caused the problems have   had no responsibility whatever. People who have been convicted of causing an offence should be made to restore the habitat to its former condition. The new clause sets out other provisions that would ensure that some restoration was undertaken.

Subsection (4) of the proposed new section states:

“At any time before an order under this section has been complied with or fully complied with, the court by which it was made may, on the application of whom it was made, discharge or vary the order if it appears to the court that a change in circumstances has made compliance or full compliance with the order impracticable or unnecessary.”

When damage has been extended over significantly large areas, it sometimes becomes unnecessary to discharge an order, and we must recognise the practicality of such action. None the less, there should be real penalties with which people may be expected to be charged if they are convicted of such offences.

New clause 3 covers the control of invasive non-native species. It sets out a framework whereby problems can be examined when they are discovered, to ensure that prompt and appropriate action is taken. Part of the problem is that we do not do anything until the situation has become so bad that it is almost impossible to act appropriately. We have tried to put down a framework under the new clauses so that the Secretary of State can identity an appropriate body to deal with a certain problem, produce action plans and specify time scales so that the species can be eradicated or controlled in some way, to provide protection to threatened flora or fauna—or, indeed, to social and economic well-being. People know that some non-native invasive species have had a massive economic effect on landowners or farmers.

The new clause would provide a power to enter land with a constable. Notwithstanding the powers granted to inspectors, to which we have referred earlier, we tried to draft proportionate and reasonable definitions of the circumstances in which someone could enter areas of land. Under proposed new subsection (8),

“A person acting in the exercise of a power conferred by subsection (4) may ... use a vehicle or a boat to enter the land ... take a constable with him if he reasonable believes he is likely to be obstructed”,

although that may not always be necessary.

Under proposed new subsection (9), if someone enters

“land which is unoccupied or from which the occupier is temporarily absent, he must on his departure leave it as effectively secured against unauthorised entry”,

and not just wander off again. He must make proper attempts to ensure that the land is secure. If there are any problems while he is there and any damage is done, proper compensation should be secured.

These are reasonable powers; if we are giving people powers to enter land, perhaps accompanied by a constable, they should be proportionate and reasonable. That is why new clauses 1, 2 and 3 and amendment No. 104 enhance the proposal. If it is not exactly what the Minister and his Department would propose, perhaps they can take those as a template, look at clause 49 on invasive non-native species and the Bill as a whole, take a wider purview and perhaps table additional clauses that reflect the amendments. I shall be interested to hear what the Minister has to say.

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

I am grateful to the hon. Gentleman for introducing a discussion on this very important subject. He is right to say that we have recognised the significant threat posed by invasive non-native species. I am pleased that it was him who introduced the amendments, given that some of my hon. Friends regard members of his party as non-native invasive species in their constituencies, which we are all focused on the need to eradicate.

We acknowledge our obligations under the convention on biological diversity to prevent the introduction of, to control, and as far as possible to eradicate, as appropriate, species that threaten ecosystems, habitats or species, and under the Bern convention to develop national strategies and action plans. We have undertaken a recent consultation on the outcome of a review of non-native species policy across Great Britain, and proposals for legislation in England and Wales.

We consulted on a proposal similar to new clause 2 in our review of part 1 of the Wildlife and Countryside Act 1981—that a person convicted of an offence under section 14 might be required by order to carry out at their own expense restoration of any damage caused. Responses to the consultation generally supported the proposal, while emphasising the difficulties of quantifying damage and administering orders.

Similarly, the proposals in new clause 3 constitute a means of focusing on and driving action in relation to the control of invasive non-native species, but go further than those included in the Government’s review of part 1 of the Act, which suggested a power for the Secretary of State to take or require action to control, contain or eradicate species listed in schedule 9 and for associated powers of access. Responses to that were mixed; many favoured the idea but were concerned about the implications, including resource needs, and supported a power rather than a duty. It was also questioned whether action should be based on a sound and transparent risk assessment process.

In response to the consultation and the work we have done, my fellow Under-Secretary of State for Environment, Food and Rural Affairs, my hon. Friend the Member for Exeter (Mr. Bradshaw), announced in March the intention of establishing a programme board to oversee the implementation of non-native species policy across Government. The Department has allocated funds for the purpose and I expect the board to meet for the first time in the late summer. I hope that that is a sign to the hon. Gentleman that the Government want to take action.

I will consider the proposed amendments in the following context: I welcome the idea of using a sub-set of species in schedule 14 on which action should be focused, with appropriate powers for the Secretary of State to ensure that action is taken. Not all non-native species are invasive, and action is not always necessary or feasible; it must be appropriately targeted. Sometimes a tight geographical focus is necessary for control purposes. However, I am concerned about the approach proposed in the amendments; a comprehensive package of legislation and policy is the appropriate way forward. As I said, we consulted on   some of the essential elements and received a large range of constructive responses. We must consider and develop those over the coming months.

The development of policy on non-native species depends for its effectiveness on securing full stakeholder engagement and support. In other contexts, we have been criticised for rushing to legislate before stakeholders have drawn breath. We heard that criticism articulated in respect of some of things to do with wildlife crime. I do not think that we should take action in this Bill, but we should ensure that we come forward with suggestions on how to act. I hope that the hon. Gentleman will regard that as a commitment to make progress, albeit at a later date, rather than simply an attempt to shelve this important subject.

Photo of Colin Breed Colin Breed Shadow Minister, Environment, Food & Rural Affairs 6:00 pm, 28th June 2005

I am glad that we have provoked some additional debate and consideration of this increasingly important subject. As I said, because so many people are able to go to so many different places—in fact, the more exotic, the better—we are under threat from things that we do not even know about now. Our weak border controls might land us in another Japanese knotweed situation before we know it.

I am pleased that the Government are taking the problem seriously. I take it as a commitment, albeit one to make progress. They need to be committed. It may require separate legislation, and obviously they have considered it by putting it in the Bill. I recognise that each Bill cannot contain everything all the time, although I would have thought that the matter might have commanded a slightly higher priority in this legislation. However, I am content with what the Minister said.

I am sure that we shall return to the problem, although I hope that we do not because species such as Japanese knotweed are dangerously invasive, and potentially economically damaging. If we are still at the progress stage and are bombarded with a serious problem, people are going to ask why. I hope that the progress is speedy and that the commitment is firm. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 49 ordered to stand part of the Bill.

Clauses 50 and 51 ordered to stand part of the Bill.