I first looked at the Infrastructure Bill about a month before Monbiot’s article. The Forest Campaigns Network (FCN) smarting from the absence of legislation on England’s Public Forest Estate (PFE) was concerned that, instead, the Government was seeking the ability to sell off the PFE through sections 20 and 21 in Part 3 of the Bill (2). The accusation didn’t seem to make much sense to me, as these sections were about churning land for housing and regeneration, not a use that much of the PFE could be put to, considering the predominance of its rural location. As it was, Monbiot in his earlier article on this in the Grauniad had to remove two paragraphs that misunderstood the effect of Schedule 3 of the bill, when he incorrectly stated that the schedule would "license the government to sell off any public land it chooses, while cancelling, without process or debate, public access and use"(3).

When reading the Bill, I came across Part 2 on Invasive non-native species. This was a surprising find in a new law on infrastructure, but it was less surprising if you knew that its inclusion was as a result of recommendations arising from the Law Commissions project on reforming wildlife legislation (4). I have been following this project, its work on invasive non-native species brought forward at the request of DEFRA so that it could consider whether to introduce legislation on this in advance of wholesale reform of wildlife law.

Coming across Part 2 was timely, as I was able to mention it to someone in FCN after she had asked me about alien species, having herself picked up on controversy surrounding the forthcoming EU legislation on invasive alien species (5) and which Britain has to take notice of in its legislation. I described Part 2 as essentially yet another amendment of the Wildlife and Countryside Act 1981 (WACA) this time to include a Schedule 9a to enable Species Control Orders, new powers to compel landowners to take action on invasive non-native species, and permit others to enter land and carry out those operations. My next surprise, as Monbiot reported, was that others saw a more sinister outcome of the legislation (1).

The introduction of new animal species

During a Committee stage of the bill in the House of Lords, Baroness Parminter sought to amend the legislation because she considered a phrase in the bill could end up with species that have been extirpated in Britain being classified as non-native, just because they are not currently resident – "a one-way system for biodiversity loss, as once an animal ceases to appear in the wild, it ceases to be native" (6). The phrase in the bill is “it is not ordinarily resident in, or a regular visitor to, Great Britain in a wild state” (1). Her fear was that it would perhaps interfere with future reintroduction programs. The trouble with her argument is that this phrase is not new – it already exists in Section 14(1) of the WACA – “is of a kind which is not ordinarily resident in and is not a regular visitor to Great Britain in a wild state” (7). The intention of the phrase should be well understood, since Section 14 is about regulating the introduction of new animal species, whether they were former natives or not. If you think about it, an extirpated species is not currently native as it does not have a presence, it is not occupying its former native range. As I explained recently, because we are an island, reinstatement of former native species requires our active involvement, and this is regulated by the WACA, the release into the wild being an offence under Section 14 unless a licence has been issued under another section (8). You may also want to consider that Schedule 9a does not amend anything in Section 14(1) or 16(4c) of the WACA as it applies to England, and thus the existing conditions for licensing release of former native species under Section 16(4c) would obtain even if Part 2 of the Infrastructure Bill is passed without amendment. Moreover, since the provisions in Schedule 9a are essentially "For the purposes of the eradication or control of invasive non-native species", then they could be seen as subordinate to, and have no bearing on the rest of the WACA. This was not considered by Baroness Parminter. However, even with this analysis, it is worth carrying on with an evaluation of the Baroness's concerns.

More problematic was the definition of non-native in Part 2 of the Infrastructure Bill covering species listed in Schedule 9 of the WACA as well (1). These species are considered to be already established in the wild, their listing in Schedule 9 making them also subject to prohibition of release except under licence. Overwhelmingly, these species are non-native and have proven to be a nuisance to our native diversity – such as mink, grey squirrel, signal crayfish, Himalayan balsam – and so it makes sense that their release into the wild is illegal, and you are not going to get a licence to do so (9). Schedule 9 has been amended five times, reflecting an evolving situation with species presence. Thus coypu were finally removed from the list in 2010, reflecting its eradication in 1989, but their release is still illegal because they are “not ordinarily resident” (10). However, two former native bird species that have been reinstated have been on the list since it was first drawn up in 1981, the barn owl was added in 1992 (11) and a further seven native species were added in 2010, five of which have been subject to programs of reintroduction, two of those reintroductions having been unofficial (12). Thus the inclusion of the wild boar in 2010 illustrates the complexity, since while it is a former native species, its listing reflects that it is regarded as a feral species that is not accepted as being “ordinarily resident” because its presence in the wild was the result of unauthorised releases. In contrast, the goshawk, extirpated through persecution by the late nineteenth century, is regarded as a former native species that has been returned to the wild, even though its reintroduction from the 1960s onwards was through the deliberate and unofficial release by falconers to establish wild populations for harvest (13).

Beyond their natural range

In the amendment that Baroness Parminter brought forward, she wanted the insertion of “excluding indigenous species” to qualify the designation of non-native, the Baroness considering that the word “indigenous” meant the presence of a species “as a result of natural processes, without human intervention”(6). I don’t know who had been advising the Baroness, but in a review of non-native species policy by DEFRA in 2003, it was pointed out that a misperception had arisen that native species are “indigenous to the entire geo-political area” of Britain and hence not likely to cause problems when translocated (14). The Review said it should be borne in mind that invasive non-native species cannot only be species not native to Britain, but they can also be species native to only part of Britain. Thus “species can be regarded as non-native if they are outside their current or recent historical natural range”. The Review went on to recognise the difficulties in drafting clear and effective codes of conduct or legislation to prevent the establishment of these species beyond their natural range in Britain. This is an important point that I will return to later.

As to the issue of species listing in Schedule 9, I asked myself why some native species have been on the schedule since 1981? Why were a bunch more added in 2010? Since the conservation industry was aware of this, why did it not make any noise about it when it was consulted on the changes? It is because it is accepted that the additions of native species to Schedule 9 are a way of controlling translocations - that native species that are in their natural range should not be released to other areas where they are not, and where they may become invasive. There is also the consideration that some planned reintroductions are contentious, the project to release white tailed eagles in East Anglia folding because of that (15).

It did not take me long to find confirmation of these reasons, with the General Licence that permits the release of native bird species listed on Schedule 9 noting that the native species have been included on the schedule “to prevent irresponsible releases” (16). This is an annual licence, giving general permission for the release of those native birds that are: caught inadvertently (while catching other species); captured while they are rehabilitated from injury; or have been caught under licence for ringing or marking purposes. Thus the birds can be released without the catcher seeking an individual licence for that release. The stricture in the general licence that they must be released at or as close as possible to the location from which they were taken, and no more than one kilometre away if that does not prove possible, reinforces the ban on translocation. There is also confirmation in guidance from DEFRA on Section 14 of the WACA, where it says that there are native species listed on Schedule 9 “in order to provide a level of control to ensure that releases, in particular re-introduction programmes, are carried out in an appropriate manner and biodiversity is properly safeguarded”(17).

There is no sense in the debate about Baroness Parminter’s amendment that there was any consideration of this need to regulate translocation of native species, that any alternative means to prevent the establishment of these species beyond their natural range in Britain was on offer from her, that if she did come up with an alternative, then the native species could easily be removed from Schedule 9. As it is, there can't be any species control orders against seven of the native species on Schedule 9, because barn owl, capercailie (in Scotland) chough, corncrake, goshawk, red kite and white-tailed eagle are protected at all times under special penalty in Schedule 1 of the WACA (7) which seems to have escaped the attention of Baroness Parminter. In the end, she was persuaded to withdraw her amendment, but she demanded that there “must be a very clear process with which we feel comfortable about the assessment for reintroduction”(6)

Grown up discussion

Given all this, and Monbiot listing in his article former native species for which he considered their reinstatement was now at risk, I felt compelled to leave a comment on the article that I saw no sinister purpose, and that it did not appear to me to be an attempt to redefine native species (1). That the grown up discussion that we have yet to have is whether we are prepared to accept wild boar as a free living, native species, present in their natural range, and if we start that acceptance with the feral populations we have now, or if we begin afresh. That it is an issue of moral integrity to reinstate other species. That once the public understands that the loss of wild animals was a result of their persecution in land use, then they will see that there has to be essential safe refuge for wild animals, and which is removed from any influence from rural land users. I should also have noted in the comment that I responded to a consultation about feral wild boar in 2005 with a recommendation that as a native extirpated by human persecution, wild boar must be amongst the species considered for successful re-introduction to the English landscape. I was in good company, because English Nature itself responded to the consultation with this (18):
“There is a clear conservation case for returning the species to part of its former natural range as a contribution to the restoration of lost biodiversity”

So much for the support of the conservation industry since then for that aspiration from English Nature (now Natural England) but also what about its failure to engage with reinstatement of any other ecologically important former native species that proved inconvenient to rural land users, or taking on any responsibility for reversing the degradation caused by the ruthless ecological simplification of our landscapes over the millennia? And yet it was not long before the conservation industry were ganging together to have another moan about the wording in the Infrastructure Bill. Thus the Wildlife and Countryside Link, an umbrella body representing a bunch of NGOs in the conservation industry, asserts that species control orders could be “applied to species that are extinct in the UK, because they are not currently resident” and that “native species becoming extinct in the future and species that may naturally colonise our shores under a changing climate would also be classified as non-native” (19). This is just scaremongering nonsense, verging on the farcical – how can a species control order be applied to a species that is not here? Why would you want to eradicate a former native species before you have even released it?

In trying to understand the reasons behind the wording in Part 2 of the Infrastructure Bill, I went back to the report from the Law Commission on invasive non-native species (20) and found the assertion that their recommendations were modelled broadly on the procedures in the Wildlife and Natural Environment (Scotland) Act 2011 (WANE). This Act amended Section 14 of the WACA as it applies in Scotland, to make it an offence to release an animal to a place outside its native range or where the animal is of a type specified by order of the Scottish Ministers (21). WANE also repeals Schedule 9 for Scotland, which is why the latter subsection was included so that Scottish Ministers can specify, by the use of orders, the types of invasive animals or plants that are also an offence to release. WANE made no change to the provision for the granting of a licence for release by the appropriate authority.

The term natural range is widely used in the EU Habitats Directive, finding its way into Regulations that transpose the Directive into British Law (22,23). However, Section 14P of the WACA, which only applies in Scotland, is the first legislation in Britain to give it definition, albeit as native range (21). Thus native range is defined as “the locality to which the animal or plant of that type is indigenous, and does not refer to any locality to which that type of animal or plant has been imported (whether intentionally or otherwise) by any person”. The Law Commission considered that this definition met their criticism of the legislation for England, in that it is not dependent on either the idea of species being introduced into Britain, or the concept of it being released into the wild – it is all about natural or native range, "the natural past or present distribution of a species" (24). The issue is with the Law Commission’s concerns about the term “ordinarily resident” (20). Firstly, the prohibition of release of species not currently ordinarily resident to Britain in a wild state, does not take into account translocations within Britain, such as the introduction of a native species into an area outside its natural range. Second, “ordinary residence” could be applied to a non-native species that has established a self-sustaining population, such as the American mink. The guidance from DEFRA on Section 14 for “ordinarily resident in the wild” can also be construed in this way, as it requires that the population should have been present in the wild for a significant number of generations and should be considered to be viable in the long term (17). The American mink is of course not in its “native range” in Britain. It is thus not surprising that the Law Commission considers native range as defining, in its reverse meaning, of a non-native species in the WACA as applied to Scotland. Except that no definition of non-native is given.

Terminological exactitude

The term non-native has not been defined in any existing version of the WACA: non-native appears, often in connection to invasive species, only in the subheadings of amending sections to the WACA from the WANE and preceding legislation (25,26) and is not used in any of the operative sections in the WACA. While the Law Commission report often mentions non-native, it is not a term used in Recommendation 7 of the report on the requirements for a species control order (20). The recommendation still continues with “not ordinarily resident”, in spite of the Law Commission having expressed a lack of faith in its use – they indicate that the most appropriate underlying definition will have to wait until they come forward with full proposals for reform of wildlife law. It is perhaps because of the Law Commission’s uncertainty that “not ordinarily resident” would cover a non-native species that has established a self-sustaining population in Britain, which encouraged the framers of Part 2 of the Infrastructure Bill to apply a definition of non-native - as it applies to species control orders - that covers the species listed on Schedule 9, or not ordinarily resident. Oddly, in the defence of the Bill in response to the debate on Baroness Parminter’s amendment, Baroness Kramer appeared also to have difficulty with the terminology when she said this (6):
“On the sensible advice of the Law Commission, the definition of non-native used in this part of the Bill is consistent with that already used in Section 14 of the Wildlife and Countryside Act 1981”

There is of course no definition or any use of the terms native and non-native, or even the term invasive, in the original WACA in 1981. That there is widespread problems with terminological exactitude was shown in the research findings of a report on wildlife management and invasive non-native species (27). Three quarters of the public were familiar with the term “native species”; two thirds had come across “non-native species”; but only 40% of the public had come across “invasive non-native species”. Disturbingly, the public were largely unable to differentiate between native and non-native species – “they simply do not know which are which”. Moreover, there was a tendency to assume that the difference is based on how long a species has been established, rather than how it became established in the first place. The authors concluded that there was clearly a need to drive the issue up the public’s agenda, but you can hear their despair when they say “Given the general lack of knowledge of, and ability to recognise/identify both native and non-native species, never mind knowing which non-native species are considered to be invasive, this is no small challenge”. This is an appalling indictment of the conservation industry, considering the amount of public money poured into it. Worse still, this conservation industry has created confusion in people’s minds by continually describing scrub and birch as invasive, leading to birch in particular being erroneously considered by some of the public as non-native.

In reaction to Baroness Parminter’s concerns about future reintroduction programs, I have chased up the process involved in reinstating former native species in England. Natural England has a webpage on this (28). After outlining Section 14(1) of the WACA, it states that the release of any former native species which is “now extinct in the wild in Great Britain, and therefore no-longer ‘ordinarily resident’, requires a licence”. A link is given for an application form for this licence. The form has errors, including the subtitle indicating that the application form is for release of non-native species only, and excludes reintroductions. I queried this with Natural England’s Wildlife Licensing Team, and got the admission that the form was in error – “We have raised this issue internally and are hoping that it will be corrected soon”. However, I was assured that the form was the correct one for applying for a licence for the re-introduction of species.

The information required for the application form and other text on the webpage indicate aspects of the process, including a feasibility report on the proposal, an assessment of potential impacts, evidence that there is support for the proposal amongst the public and stakeholders, and details of what steps are proposed should problems occur. These seem familiar from the process recently undertaken in Denmark and the Netherlands for acceptance of the return of the wolf (8). I think it highly unlikely that Part 2 of the Infrastructure Bill will materially alter the logic of the process, primarily because Schedule 9a does not amend Section 14(1) or Section 16(4C) of the WACA, but also because of the further arguments on terminology that I have given here. It could all be change again anyway in the terminology stakes when the Law Commission come up with their recommendations for the complete replacement of the WACA in the next year or so.

Mark Fisher 11 August 2014

The scaremongering continues with a news release from the John Muir Trust asserting that native species such capercaillie, white-tailed eagle, chough, corncrake, red kite, barn owl and goshawk could be controlled or eradicated by powers to combat invasive, non-native species (29). The Trust also asserts that landowners could be forced to control native species under this legislation. As I point out above, there can be no species control orders for those species because they are given protection at all times under Schedule 1 of the WACA.

It also repeats the assertion that the reinstatement of former native species, or any species that becomes extinct in the future, or that colonises in the future without human involvement will be barred. This again is a total misreading of the Bill.

It seems also that the conservation industry has convinced a group of scientific and non-governmental organisations to sign up to a letter published in the journal Nature that repeats the mistaken interpretations (30). This does not bode well for scientific integrity if as seems likely these people have not satisfied themselves that they understand the background to the provisions, nor understand what will be the outcome of the legislation, especially so since some of my analysis was forwarded to one of the organisations.

23 August 2014

(1) How the coalition is stopping the reintroduction of wildlife to the UK. The infrastructure bill seeks to reclassify extinct species as non-native, and prevent them from returning, George Monbiot, Guardian 21 July 2014

http://www.theguardian.com/environment/georgemonbiot/2014/jul/21/infrastructure-bill-stopping-reintroduction-wildlife-uk

(2) Infrastructure Bill – Public Scrutiny office

http://public-scrutiny-office.org/bills/2014-2015/infrastructure

(3) Beware the small print that threatens all public land, George Monbiot, The Guardian, Monday 23 June 2014

http://www.theguardian.com/commentisfree/2014/jun/23/small-print-public-land-infrastructure-bill-lords-uk

(4) Invasive non-native species control, Wildlife, The Law Commission

http://lawcommission.justice.gov.uk/areas/wildlife.htm

(5) Brussels inspectors not digging up the great British garden, News from the European Commission in the UK, 10 March 2014

http://blogs.ec.europa.eu/ECintheUK/brussels-inspectors-not-digging-up-the-great-british-garden/

(6) Clause 16: Invasive non-native species. Amendment 64A, Infrastructure Bill [HL], Committee (2nd Day) 8 July 2014

http://www.publications.parliament.uk/pa/ld201415/ldhansrd/text/140708-gc0001.htm

(7) Wildlife and Countryside Act 1981

http://www.legislation.gov.uk/ukpga/1981/69

(8) Ecological consequence of predator removal, Self-willed land July 2014

www.self-willed-land.org.uk/articles/predator_removal.htm

(9) Species listed on Schedule 9 part 1(animals) and part 2(plants) of the Wildlife and Countryside Act 1981 as amended.

http://www.fera.defra.gov.uk/plants/documents/schedule9Dec10.pdf

(10) Myocastor coypus, GB Non-natives Factsheet Editor

http://www.brc.ac.uk/gbnn_admin/index.php?q=node/73

(11) The Wildlife and Countryside Act 1981 (Variation of Schedule) (No. 2) Order 1992

http://www.legislation.gov.uk/uksi/1992/2674/made

(12) The Wildlife and Countryside Act 1981 (Variation of Schedule 9) (England and Wales) Order 2010

http://www.legislation.gov.uk/uksi/2010/609/article/2/made

(13) Goshawk, Scottish Raptor Study Group

http://www.scottishraptorstudygroup.org/goshawk.html

(14) Review of Non-Native Species Policy: Report of the working group, DEFRA 2003

http://jncc.defra.gov.uk/pdf/BRAG_NNC_DefraReviewofNon-NativeSpeciesPolicy.pd

(15) Sea eagle plan hits turbulence in East Anglia, Mark Worthington, BBC News 14 June 2010

http://www.bbc.co.uk/news/10303266

(16) LICENCE (General) To permit the release of native bird species listed on Schedule 9. Natural England

http://www.naturalengland.org.uk/images/wml-gl22_tcm6-24170.pdf

(17) Guidance on section 14 of the Wildlife and Countryside Act, 1981. DEFRA 2009, amended 2010

http://archive.defra.gov.uk/wildlife-pets/wildlife/management/non-native/documents/section-14-guidance.pdf

(18) Feral wild boar in England: A consultation by the Department for Environment, Food and Rural Affairs. Summary of responses. 2006

http://webarchive.nationalarchives.gov.uk/20140605090108/http://www.naturalengland.org.uk/Images/wildboarconsresponsessummary_tcm6-4509.pdf

(19) Infrastructure Bill, Legal Strategy Group, Wildlife and Countryside Link

http://www.wcl.org.uk/legal.asp

(20) Wildlife law: control of invasive non-native species, The Law Commission (LAW COM No 342) 10 February 2014

http://lawcommission.justice.gov.uk/docs/lc342_wildlife.pdf

(21) Wildlife and Natural Environment (Scotland) Act 2011

http://www.legislation.gov.uk/asp/2011/6/enacted

(22) The Conservation (Natural Habitats, &c.) Regulations 1994

http://www.legislation.gov.uk/uksi/1994/2716/made

(23) The Conservation of Habitats and Species Regulations 2010

http://www.legislation.gov.uk/uksi/2010/490/made

(24) Wildlife Law. Law Commission Consultation Paper No 206. 2012

http://lawcommission.justice.gov.uk/docs/LCCP206_Wildlife_law_consultation_paper_for_web.pdf

(25) Nature Conservation (Scotland) Act 2004

http://www.legislation.gov.uk/asp/2004/6?view=extent

(26) Natural Environment and Rural Communities Act 2006

http://www.legislation.gov.uk/ukpga/2006/16

(27) Wildlife Management and Invasive Non-Native Species: Report of Research Findings among the General Public, Anglers and the Horticultural Retail Trade (Volume 1) May 2009/ Job NO. 567/ Version 6. Prepared for: The COI, on behalf of its clients, the Department for the Environment, Food and Rural Affairs and the GB Non-Native Species Secretariat

http://www.nonnativespecies.org/downloadDocument.cfm?id=93

(28) Reintroduction of former native species, Natural England

http://www.naturalengland.org.uk/ourwork/regulation/wildlife/species/formernative.aspx

(29) Government to define barn owls as non-native, John Muir Trust, 21st August, 2014

http://www.jmt.org/news.asp?s=2&nid=JMT-N10949

(30) Durant, S. (2014) Non-native species: UK bill could prompt biodiversity loss. Nature 512: 253 (21 August 2014)

http://tinyurl.com/noz7yp8