November 2014
Legal report on the
Infrastructure Bill and
what it means for native
species in England and
Wales
The Infrastructure Bill and what it means for protected species in
England and Wales
November 2014
Contents
Executive Summary .................................................................................................................... 3
Recommendations ...................................................................................................................... 3
1. Introduction and background to the Infrastructure Bill.............................................................. 5
2. Why Schedule 9A as originally proposed in Bill would have been illegal under EU law ........... 5
3. Defra’s amendments accepted at report stage ........................................................................ 6
3.1 New definition of non-native species ..................................................................................... 7
3.2 Part 2 of Defra’s Amendments .............................................................................................. 8
4. Strict species protection under EU law .................................................................................. 10
5. Conclusion ............................................................................................................................ 13
2
The Infrastructure Bill and what it means for protected species in
England and Wales
November 2014
Executive Summary
The recently agreed Defra amendments to Clause 19 of the Infrastructure Bill1 - a provision that
inserts a new Schedule 9A into the Wildlife and Countryside Act 1981 and which was originally
intended for the control of invasive non-native species - helpfully redefines what will be
considered a ‘non-native’ species under the new Schedule 9A. However, the amendments also
seeks to expand the scope of Schedule 9A to regulate native species ‘no longer normally
present in Great Britain’ (Part 2 of Defra’s Amendments). Part 2 of Defra’s Amendments creates
superfluous legislation and is a breach of EU law in respect to EU protected species.
Recommendations
New definition of non-native species
1. We agree with the new definition of non-native species now included in paragraph 2 to the
new Schedule 9A (provided that the term ‘natural range’ continues to be interpreted in
accordance with Article 12(1) of the Habitats Directive – see para 14 below):
‘A species is “non-native” if (a) it is listed in Part 1 or 2 of Schedule 9, or
(b) in the case of a species of animal, it is a species i) whose natural range does not include any part of Great Britain, and
ii) which has been introduced into Great Britain or is present in Great Britain
because of other human activity.”2
2. We also agree with the removal of the wild boar, capercaillie, chough, red kite and barn owl
from Part 1 of Schedule 9 of the Wildlife and Countryside Act 1981 (animals to which section 14
of that Act applies).3
1Infrastructure Bill [HL] 2014-15: http://services.parliament.uk/bills/2014-15/infrastructure.html. The clause numbering used throughout this Report
relates to the version of the Bill agreed at report stage dated 11 November 2014.
2 Clause 19 (3), Schedule 9A para 2(3) (pg 12, line 8 - 17).
3 Clause 20(1) - (3) (pg 22, lines 18- 23).
3
The Infrastructure Bill and what it means for protected species in
England and Wales
November 2014
Part 2 of Defra’s Amendments
3. The creation of the following new definition of species “no longer normally present in Great
Britain” should be rejected (paragraph 3 of Schedule 9A):
‘A species of animal is ‘no longer normally present in Great Britain” if (a) it is a species listed in Part 1B of Schedule 9, or
(b) it is a species i) whose natural range includes all or any part of Great Britain, and
ii) which has ceased to be ordinarily resident in, or a regular visitor to, Great Britain
in a wild state.”4
4. All provisions that allow species control agreements and orders to apply to species of animal
“no longer normally present in Great Britain” should be rejected (paragraphs 7(1)(b) and
10(1)(a)(ii) of Schedule 9A and associated provisions).5
5. The creation of new Schedule Part 1A (Native Animals) and Part 1B (Animals no longer
normally present) to Schedule 9 of the Wildlife and Countryside Act and associated
amendments, should also be rejected.6
4 Clause 19 (3), Schedule 9A para 3 (pg 12, lines 18 - 26).
5 Refer to the Annex to this report for the complete set of associated amendments that should be rejected and the original references to ‘invasive nonnative species’ that should be reinserted.
6 Clause 20(4) - (5) (pg 22, lines 24- 34; pg 23, line 1-7) and Clause 21 (pg 23, lines 8-19).
4
The Infrastructure Bill and what it means for protected species in
England and Wales
November 2014
1. Introduction and background to the Infrastructure Bill
1. The Infrastructure Bill was introduced by Baroness Kramer, Minister of State for Transport, to
the House of Lords on 5 June 2014. As at 11 November 2014, the Infrastructure Bill was
made up of six parts that encompass a variety of topics including: strategic highway
companies and the funding of transport services by land; powers of British transport police
force; the control of invasive non-native species; nationally significant infrastructure projects
and other aspects of town and country planning; energy and more specifically the recovery
of UK petroleum and rights to use deep level land for petroleum and geothermal energy.
2. While each of these parts are connected to environmental issues, this report focuses solely
on Part 3 of the Bill, which includes the relevant clauses 19 -21 about the control of invasive
non-native species, and considers whether these clauses comply with EU environmental
law.
3. Clause 19 of the Infrastructure Bill proposes to insert a new Schedule 9A into the Wildlife
and Countryside Act 1981 to introduce provisions about species control agreements, species
control orders and other related matters. The intention of the legislators in creating a new
Schedule 9A in the Wildlife and Countryside Act 1981 is set out in the introductory paragraph
to the Infrastructure Bill as follows: to ‘make provisions for the control of invasive non-native
species’. The introduction of legislation that controls invasive non-native species is
welcomed however it is argued in this legal report that these provisions should not also
extend to control native species in their natural range.
2. Why Schedule 9A as originally proposed in Bill would have
been illegal under EU law
4. The initial drafting of Schedule 9A was problematic in many respects. In summary, the
following species, possibly inadvertently, erroneously fell within the definition of ‘non-native
species’ in the un-amended version of Schedule 9A:
a. native species listed in Schedule 9 of the Wildlife and Countryside Act (such as the barn
owl, red kite and corncrake);
b. species not previously found in Great Britain but which undergo natural range shifts or
expansions to include Britain; and
c. native species that for a period of time have not been found in Great Britain, but which
begin to re-colonise in Great Britain, whether because of natural processes (for example this
might be the case for some birds species, butterflies or invertebrates) or through human-led
reintroduction programmes.
5. All these species could become subject to species control orders under the new Schedule
9A, as originally drafted. This would have meant that an environmental authority may order
an owner of premises to eradicate the species in question if that species was deemed to
have a significant adverse impact on biodiversity or on social or economic interests (provided
the authority was satisfied there was no appropriate alternative to avoid the perceived
impact). The types of social or economic interests that could justify species control orders for
species are very broad.
5
The Infrastructure Bill and what it means for protected species in
England and Wales
November 2014
6. The species included under the un-amended definition of ‘non-native’ species, could include
species that are listed in Annex IV(a) of the Habitats Directive, which are strictly protected
under Article 12(1) of the Habitats Directive and whose ‘natural range’ includes Great Britain.
This would apply for example to the Eurasian beaver which became extinct in Britain due to
hunting, but which has now been part of a trial introduction scheme in Argyll, Scotland and
has recently been found in Devon. Therefore, the originally proposed definition of ‘non-native
species’ was a breach of the Habitats Directive (refer to section 4 of this report for further
details).
7. Naturally occurring wild birds in Great Britain, which expand their range to include Britain for
the first time, or which were once present in Britain and which naturally begin again to
recolonize in Britain, would have also been captured under the un-amended definition of
‘non-native’ species. However, naturally occurring wild birds in Britain are strictly protected
under Article 5 of the Birds Directive. Therefore, the originally proposed definition of ‘nonnative species’ was a breach of the Birds Directive (refer to section 4 of this report for further
details).
8. In the Grand Committee, Baroness Parminter tabled amendments to the definition of ‘nonnative’ so as to include the words ‘and has never been indigenous to’,7 to ensure that locally
extinct native species would be excluded from the definition of ‘non-native’ species and not
subject to species control orders. A debate in the House of Lords ensued8 and ultimately the
amendment was not accepted, and the Minister deferred discussions on the basis that
Defra’s Code of Practice, shortly to be released, would provide clarity as to how the species
control orders should be applied.
3. Defra’s amendments accepted at report stage
9. In response to concerns raised in Grand Committee and the government’s on-going
discussions with stakeholders, Baroness Kramer tabled a government amendment to be
considered at report stage (Defra’s Amendments).9 This amendment was agreed at the
House of Lords report stage.10
10. For the purpose of ease of reference within this legal report, we split Defra’s Amendments
into two parts that we will refer to as the ‘new definition of non-native species’ - which we
generally support and agree with - and ‘Part 2 of Defra’s Amendments’ - which continues to
breach EU law and which we recommend legislators revisit and reject at the subsequent
stages of the legislative process. The version of the Bill referred to throughout this legal
report is that as agreed at House of Lords report stage dated 11 November 2014. For ease,
we also set out in the Annex to this report clauses 19-21 of the Infrastructure Bill that were
agreed at report stage. The new definition of non-native species is underlined in the Annex,
and the amendments in Part 2 of Defra’s Amendments, which we recommend are rejected,
are shown as strikethrough text in the Annex.
7 See Second Marshalled List of Amendments to be Moved in Grand Committee: http://www.publications.parliament.uk/pa/bills/lbill/20142015/0002/amend/ml002-II.htm
8 See Daily Hansard from 8 July 2014: http://www.publications.parliament.uk/pa/ld201415/ldhansrd/text/140708-gc0001.htm
9 http://www.publications.parliament.uk/pa/bills/lbill/2014-2015/0045/amend/am045-c.htm
10 See Daily Hansard from 3 November 2014: http://www.publications.parliament.uk/pa/ld201415/ldhansrd/text/141103-0003.htm#1411042000326
6
The Infrastructure Bill and what it means for protected species in
England and Wales
November 2014
3.1 New definition of non-native species11
11. Schedule 9A now includes the following new definition of non-native species:
‘A species is “non-native” if (c) it is listed in Part 1 or 2 of Schedule 9, or
(d) in the case of a species of animal, it is a species iii) whose natural range does not include any part of Great Britain, and
iv) which has been introduced into Great Britain or is present in Great
Britain because of other human activity.”12
12. In addition, the wild boar, capercaillie, chough, red kite, and barn owl are removed from Part
1 of Schedule 9 of the Wildlife and Countryside Act 1981.13 This addresses the problem
identified in paragraph 9(a) above.
13. As referred to above, and explored in further detail in the next section, species in their
natural range that are listed in Annex IV(a) of the Habitats Directive, are strictly protected
under Article 12(1) of the Habitats Directive. The term ‘natural range’ is not defined in the
Habitats Directive. However, EU guidance seems to support an interpretation of ‘natural
range’ that includes animals that spread to a new area or territory and also includes areas
that a species used to inhabit but which it no longer currently does due to human induced
pressures or other factors.14
14. If ‘natural range’ was to be interpreted restrictively by the government, whereby a species
within its natural range was interpreted to exclude formerly resident species or new species
that undergo natural range shifts or expansions to include Great Britain, the above definition
of ‘non-native’ would not comply with EU law. However, provided that ‘natural range’ is
interpreted in accordance with the requirements of Article 12(1) of the Habitats Directive (i.e.
species in their ‘natural range’ include species that used to exist in Great Britain, and those
that settle here in the future), then the new definition of ‘non-native’ species is welcomed and
complies with EU law. In fact, the wording of Part 2 of Defra’s Amendments implicitly accepts
this interpretation of natural range. Part 2 of Defra’s Amendments specifically covers species
whose natural range includes Britain and which have ceased to be ordinarily resident (see
paragraph 15 below), thereby confirming that species that no longer occur in Britain, but
which used to be, are species whose natural range includes Britain.
11 Clause 19 (3), Schedule 9A para 2(3) (pg 12, line 8 - 17) and Clause 20(1) - (3) (pg 22, lines 18- 23).
12 Clause 19 (3), Schedule 9A para 2(3) (pg 12, line 8 - 17).
13 Clause 20(1) - (3) (pg 22, lines 18- 23).
14 EU Guidance document on the strict protection of animal species of Community interest under the Habitats Directive states that “A natural range as
defined
here
is
not
static
but
dynamic:
it
can
decrease
and
expand.”
(February
2007,
p.11).
http://ec.europa.eu/environment/nature/conservation/species/guidance/pdf/guidance_en.pdf.
7
The Infrastructure Bill and what it means for protected species in
England and Wales
November 2014
3.2 Part 2 of Defra’s Amendments15
15. Part 2 of Defra’s Amendments creates a new definition of species of animal ‘no longer
normally present in Great Britain’:
‘A species of animal is “no longer normally present in Great Britain” if c) it is a species listed in Part 1B of Schedule 9, or
d) it is a species iii) whose natural range includes all or any part of Great Britain, and
iv) which has ceased to be ordinarily resident in, or a regular visitor to,
Great Britain in a wild state.”16
16. Species ‘no longer normally present in Great Britain’ that have not been introduced in
accordance with the terms of a licence granted under section 16(4)(c) of the Wildlife and
Countryside Act 1981, could become subject to species control agreements or orders under
Part 2 of Defra’s Amendments.17 This would mean that an environmental authority may order
an owner of premises to eradicate the species in question if that species was deemed to
have a significant adverse impact on biodiversity or on social or economic interests (provided
the authority was satisfied there was no appropriate alternative to avoid the perceived
impact).
17. There are then a number of associated amendments that are included in Part 2 of Defra’s
Amendments that essentially allow species control orders to be applied to species of animal
‘no longer normally present in Great Britain’.18
18. With respect to species strictly protected under Article 12(1) of the Habitats Directive
and naturally recolonizing wild birds in Britain, this is arguably a breach of EU law
that must be rectified. This is explained in more detail in section 4 of this report.
19. In addition, Part 2 of Defra’s Amendments also creates a new Part 1A (Native Animals) to
Schedule 9 of the Wildlife and Countryside Act, into which the capercaillie, chough,
corncrake, common crane, white-tailed eagle, goshawk, red kite and barn owl are placed;
and a Part 1B (Animals no longer normally present) into which the wild boar is placed.19 A
consequential change is made to sections 14 and 22 of the Wildlife and Countryside Act
1981, so that they both now additionally refer to the new Parts 1A and 1B of Schedule 9.20
The titles to the already existing sections 14ZA and 14ZB of the Wildlife and Countryside Act
1981, which deal with the ban on the sale of certain species and codes of practice
15 Clause 19 (3), Schedule 9A, para 3 (pg 12, lines 18 - 26); Clause 19 (3), Schedule 9A, para 7(1)(b) (pg 13, lines 19 - 20); para 7(4) (pg 13, lines 3042); para 10(1)(a)(ii) (pg 14, lines 29-30); para 10(4) (pg 15, lines 15-27); Clause 20(4) - (5) (pg 22, lines 24- 34; pg 23, line 1-7) Clause 21 and other
associated amendments (see Annex for full details).
16 Clause 19 (3), Schedule 9A, para 3 (pg 12, lines 18 - 26).
17 Clause 19 (3), Schedule 9A, para 7(1)(b) (pg 13, lines 19 - 20); para 7(4) (pg 13, lines 30-42); para 10(1)(a)(ii) (pg 14, lines 29-30); para 10(4) (pg
15, lines 15-27). .
18 Refer to the Annex to this report for the complete set of associated amendments shown as strikethrough text that should be rejected and the original
references to ‘invasive non-native species’ that should be reinserted.
19 Clause 20(4) - (5) (pg 22, lines 24- 34; pg 23, line 1-7) Clause 21 (pg 23, lines 8-19)
20 Clause 21(1)-(2) (pg 23, lines 8-11)
8
The Infrastructure Bill and what it means for protected species in
England and Wales
November 2014
respectively, are also amended so that they no longer only refer to ‘invasive non-native
species’ but to all species included in Schedule 9.21
20. To put these amendments into context, it is necessary to briefly consider section 14 of the
Wildlife and Countryside Act, which is the primary provision that refers to Schedule 9. As
currently drafted, section 14 makes it an offence for any person to release or allow to escape
into the wild any animal which:
a. ‘is 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 1 of Schedule 9.’
21. Therefore, if not amended, the new section 14 will continue to make it an offence to release
wild boar, capercaillie, chough, corncrake, common crane, white-tailed eagle, goshawk, red
kite and barn owl without a licence (along with the other non-native species that are listed in
Schedule 9). However, all these species are native British animals that currently exist in the
wild in Great Britain, though they may have at some time become extinct or close to
extinction in Britain. They have either been part of licensed reintroduction schemes (in the
case of the bird species listed) or through some other means have come to resettle in Britain
(wild boar). They are not invasive and they are not ‘non-native’. Section 14, however, is
aimed at addressing the release of invasive non-native species. Introducing new lists of
native species currently present in Britain it is an offence to release (Part 1A and 1B) creates
a confusing legal framework and undoes, to a large extent, the positive impact of their
removal from the Part 1 list of non-native species. We do not see any logical reason why
such native species ever needed to be included within the scope of section 14 of the Wildlife
and Countryside Act.
22. As explained above, under Part 2 of Defra’s Amendments the wild boar will be included on a
newly created Part 1B (Animals no longer normally present). 22 The new powers for
environmental authorities that are proposed under Schedule 9A will apply to the wild boar as
it will be deemed to be a species ‘no longer normally present in Great Britain’.23
23. The whole concept of including these native animals on two separate lists seems
counterproductive. If the intention of the legislators is to make an offence of the release of
new species of animals not ordinarily resident in and not a regular visitor to Britain in a wild
state, then this provision already exists under section 14(1)(b). It is therefore not necessary
to include native species on new Parts 1A and B of Schedule 9 as proposed under Part 2 of
Defra’s Amendments.
24. Further, with respect to the species control orders that could apply to the wild boar under
Part 2 of Defra’s amendments, it does not make sense to include the wild boar on a list
entitled Part 1B (Animals no longer normally present), when they already exist in Britain as a
native species. It is also completely illogical to treat the wild boar in the same way as an
invasive non-native species whereby special powers are granted to environmental
authorities to enter onto private property to control and eradicate the wild boar under the
proposed new Schedule 9A.
21 Clause 21(3)-(5) (pg 23, lines 12-19)
22 Clause 20(4) - (5) (pg 22, lines 24- 34; pg 23, line 1-7) Clause 21 (pg 23, lines 8-19)
23 Clause 19 (3), Schedule 9A, para 3 (pg 12, lines 18 - 26).
9
The Infrastructure Bill and what it means for protected species in
England and Wales
November 2014
25. Therefore, we do not see any logical reason why the new Part 1A (Native Animals) and Part
1B (Animals no longer normally present) to Schedule 9 are required.
We recommend that the creation of the new Part 1A (Native Animals) and Part 1B (Animals no
longer normally present) under clause 20(4)-(5) of the Infrastructure Bill, and the consequential
amendments to section 14 of the Wildlife and Countryside Act under clause 21 of the
Infrastructure Bill, are rejected by decision-makers as the Bill progresses through the next
stages of the legislative process.
4. Strict species protection under EU law
26. This section of the legal report will focus on the UK’s obligations under Article 12(1) of the
Habitats Directive and Article 5 of the Birds Directive. It elucidates why Schedule 9A of the
Infrastructure Bill – as originally drafted, and under Part 2 of Defra’s Amendments – would
potentially permit the eradication and control of European protected species that have been
native to Britain in the past or may become so in future, in breach of EU law.
4.1 Article 12(1) of the Habitats Directive
27. Article 12(1) of the Habitats Directive requires Member States to establish a system of strict
protection for the species listed in Annex IV(a) in their natural range. This includes
prohibiting ‘all forms of deliberate capture or killing of specimens of these species in the
wild’, as well as the ‘deliberate disturbance of these species, particularly during periods of
breeding, rearing, hibernation and migration’ and ‘the deterioration or destruction of breeding
sites or resting places’.
28. In England and Wales, the Habitats Directive is transposed into national law through the
Conservation of Habitats and Species Regulations 2010 (the 'Habitats Regulations').
Schedule 2 of the Habitats Regulation sets out the species that are listed in Annex IV(a) of
the Habitats Directive whose natural range includes Britain. It is, however, possible that
some species listed in Annex IV(a) are not currently included in Schedule 2 of the Habitats
Regulation, whose natural range may in the past have included, or may in future come to
include, Great Britain in its natural range. In such instances, Article 12(1) of the Habitats
Directive is likely to have direct effect, 24 which means that if challenged, the national rule
must be set aside by the courts in order to give effect to the provision of Article 12(1).25
29. In any case, and irrespective of any direct effect that Article 12(1) may have, the UK must
comply with the requirements of the Habitats Directive. If Schedule 2 of the Habitats
Regulations does not accurately reflect all the species listed in Annex IV(a) of the Habitats
Directive whose natural range includes Great Britain, then this will be an EU law infringement
that must be rectified.
24 See Charles George QC and David Graham ‘After Morge, where are we now? The Meaning of ‘Disturbance’ in the Habitats Directive’ in G Jones QC
(ed), The Habitats Directive: A Developer’s Obstacle Course? (Hart Publishing, 2012) 183. See also the following case law: R v Secretary of State for
Trade and Industry ex p Greenpeace Ltd (No 2) [2000] 2 CMLR 94, [80] per Maurice Kay J; Associazione Italiana Per Il World Wildlife Fund and Others
v Regione Veneto, Case C-118/94.
25 Ibid. See also:Case C-213/89 R v Secretary of State for Transport, ex p Factortame.
10
The Infrastructure Bill and what it means for protected species in
England and Wales
November 2014
30. It follows that any species listed in Annex IV(a) of the Habitats Directive whose natural range
includes Great Britain (past and newly so) - regardless of whether it is listed in Schedule 2 of
the Habitats Regulations or not - must be provided strict protection by the UK Government.
This means that deliberate capture or killing, disturbance or destruction of breeding sites or
resting places of such species, is not permitted under the Habitats Directive.
31. The European beaver, which is currently recolonizing on the River Otter in Devon, is an
example of a species once extinct in England but which should be provided strict species
protection in accordance with Article 12(1). Indeed, Natural England concluded in a recent
study about the feasibility and desirability to reintroduce beavers to England, that were a
viable population of beavers established in England - as has arguably occurred - this would
oblige the UK to protect the species in accordance with Article 12(1) of the Habitats
Directive.26 (Incidentally, the study also concluded that the reintroduction of beavers was
desirable and feasible due to their many positive environmental benefits and the success of
beaver reintroductions elsewhere.) The Natural England study therefore supports the
argument that if Part 2 of Defra’s Amendments become law, this is a breach of Article 12(1)
of the Habitats Directive.
32. The rationale behind Part 2 of Defra’s Amendments seems to be to ensure that government
has a means to control unlicensed re-introductions of species ‘no longer normally present in
Great Britain’ on private property. Using the example of the beavers in Devon again, these
beavers have not been reintroduced as part of a licenced reintroduction programme.
However, according to EU guidance, Article 12(1) of the Habitats Directive applies to Annex
IV(a) species within their natural range (past or new), irrespective of whether a species is no
longer normally present and irrespective of whether they have been re-introduced without a
licence.27 For these reasons, Part 2 of Defra’s Amendments is arguably illegal under Article
12(1) of the Habitats Directive in respect to species listed in Annex IV(a) whose natural
range includes Britain.
33. In any case, it is possible in certain circumstances, under Article 16 of the Habitats Directive
(and the equivalent implementing provisions in the Habitats Regulations28) to derogate from
the strict species provisions contained in Article 12(1) - for example to prevent serious
damage to crops, livestock and fisheries and in the interests of public safety. Any attempt to
control the unlicensed reintroduction of native species protected under Article 12 of the
Habitats Directive (which would also includes protection for species including for example
the wolf and Eurasian lynx) must occur in accordance with these existing provisions.
34. Therefore, the attempt to deal with such processes in the Infrastructure Bill creates
superfluous, duplicative and completely unnecessary legislative provisions, which will create
uncertainty and confusion. Moreover, it would also be an attempt to legislate on matters that
are already part of the domestic legal system, which goes against the Government’s policy of
‘Better Regulation’.29
35. It is also important to note that under Article 22 of the Habitats Directive, the UK is under an
obligation to study the desirability of re-introducing species listed in Annex IV that were
previously native to its territory, where this may contribute to the conservation of this species.
26 Ibid, pp 56.
27 EU Guidance document on the strict protection of animal species of Community interest under the Habitats Directive states that “A natural range as
defined here is not static but dynamic: it can decrease and expand.” (February 2007, p.11).
28 Section 53 Habitats Regulations.
29 https://www.gov.uk/government/policies/reducing-the-impact-of-regulation-on-business
11
The Infrastructure Bill and what it means for protected species in
England and Wales
November 2014
However, under Article 22, re-introduction schemes can only take place after proper
consultation with the public. This should provide reassurance with regard to any fears that
were expressed in the House of Lords debate and will ensure that society has a say before
licenced reintroduction schemes are authorised.
4.2 Article 5 of the Birds Directive
36. Article 5 of the Birds Directive also requires Member States to establish a system of strict
protection for naturally occurring wild birds within the territory of each Member State. The
obligation to protect wild birds is similar to that included under Article 12(1) of the Habitats
Directive, whereby all forms of deliberate killing or capture, deliberate damage to nests and
eggs, and deliberate disturbance of wild birds particularly during breeding and rearing
periods, is prohibited. In England and Wales, section 1 of the Wildlife and Countryside Act
1981 transposes this section of the Birds Directive into domestic legislation.
37. There is a key distinction as to how Article 5 of the Birds Directive applies strict species
protection to wild birds, compared to protected species under Article 12(1) of the Habitats
Directive. Instead of referring to species in their ‘natural range’, as is the case under Article
12(1) of the Habitats Directive, the Birds Directive qualifies the protection afforded to wild
birds so that they must be ‘naturally occurring’. Therefore, arguably, because of the use of
the words ‘naturally occurring’ within Article 5 of the Birds Directive, for wild birds that would
otherwise not be ‘naturally occurring’ in Britain now, if these species of birds were unlawfully
released, they would not benefit from the strict species protection requirements under Article
5 of the Birds Directive (or at least strict protection would not apply until such birds were
considered to be ‘naturally occurring’ under Article 5 of the Birds Directive).
38. However, and despite this qualification, Part 2 of Defra’s Amendments would still contravene
Article 5 of the Birds Directive under the following scenario: wild birds that were once
resident in Britain, but which have not been seen in Britain in recent years, which then - as a
result of natural processes - begin to recolonize in Great Britain. Such species would not
have been reintroduced under a license and would be ‘naturally occurring’ in Britain.
Nonetheless, they would fall within the scope of species ‘no longer normally present in Great
Britain’ - and therefore could become subject to species control orders under Part 2 of
Defra’s Amendments. This is illegal under Article 5 of the Birds Directive.
39. Similar derogations to strict species protection to those included in the Habitats Directive are
included in Article 9 of the Birds Directive (and implemented into UK law under section 4 and
16 of the Wildlife and Countryside Act). As with strict species protection under the Habitats
Directive, any attempt to control the unlicensed reintroduction of native birds species
protected under Article 5 of the Birds Directive must occur in accordance with these existing
provisions.
40. Arguably, Part 2 of Defra’s Amendments would not apply to wild birds that naturally expand
their natural range to Britain for the first time. This is because under Part 2 of Defra’s
Amendments a species of animal ‘no longer normally present in Great Britain needs to
‘cease’ to be ordinarily resident in, or a regular visitor to Britain. The use of the word ‘ceased’
presupposes that the species must have been present in Britain in the past, to be regarded
as a species ‘no longer normally resident in’.
12
The Infrastructure Bill and what it means for protected species in
England and Wales
November 2014
41. We recommend that Part 2 of Defra’s Amendments is rejected by decision makers as the Bill
progresses through the next stages of the legislative process so that Schedule 9A is limited
to the control of invasive non-native species only. This would ensure the schedule complies
with EU law and also is aligned with the Government’s Better Regulation agenda.
5. Conclusion
42. The introduction of legislation under a proposed new Schedule 9A to the Wildlife and
Countryside Act that controls invasive non-native species is welcomed. However the initial
drafting of Schedule 9A was problematic in many respects and while we agree with the new
definition of non-native species, which was accepted as part of Defra’s Amendments in
report stage in the House of Lords, Part 2 of Defra’s Amendments creates superfluous
legislation that is in breach of EU law in respect to protected EU species.
43. Any regime that seeks to control unlicensed reintroduction of native species must be
implemented in accordance with Article 16 of the Habitats Directive and Article 9 of the Birds
Directive. Part 2 of Defra’s Amendments do not do this and must therefore be rejected.
44. Clauses 19-21 of the Infrastructure Bill, current as at 11 November 2014, are set out in full in
the Annex to this Report. Part 2 of Defra’s amendments, which we recommend legislators
revisit and reject at the subsequent stages of the legislative process, are highlighted as
strikethrough text in the Annex.
13
The Infrastructure Bill and what it means for protected species in
England and Wales
November 2014
Infrastructure Bill [HL 53 2014-15]
[AS AMENDED ON REPORT]
11 November 2014
ClientEarth Key:

The new definition of non-native species (which we generally agree and support with) is
underlined in red.
 Part 2 of Defra’s Amendments, which we recommend are rejected, are shown as
strikethrough text.
Reinsertion of original references to ‘invasive non-native species’ are shown in red.
14
The Infrastructure Bill and what it means to
native species in England and Wales
November 2014
Sandy Luk
Senior Lawyer
274 Richmond Road
London, E8 3QW
t 020 7749 5977
e [email protected]
www.clientearth.org
Sarah Gregerson
Lawyer (Australian qualified)
274 Richmond Road
London, E8 3QW
t 020 7749 5975
e [email protected]
www.clientearth.org
ClientEarth is a non-profit environmental law organisation based in London,
Brussels and Warsaw. We are activist lawyers working at the interface of law,
science and policy. Using the power of the law, we develop legal strategies
and tools to address major environmental issues.
ClientEarth is funded by the generous support of philanthropic foundations,
engaged individuals and the UK Department for International Development.
Brussels
4ème Etage
36 Avenue de Tervueren
1040 Bruxelles
Belgium
London
274 Richmond Road
London
E8 3QW
UK
Warsaw
Aleje Ujazdowskie 39/4
00-540 Warszawa
Poland
ClientEarth is a company limited by guarantee, registered in England and Wales, company number
02863827, registered charity number 1053988, registered office 2-6 Cannon Street, London EC4M 6YH,
with a registered branch in Belgium, N° d’entreprise 0894.251.512, and with a registered foundation in
Poland, Fundacja ClientEarth Poland, KRS 0000364218, NIP 701025 4208