Knotweed News

New Invasive Species Legislation

Author: Mike Clough

Date Posted: Monday 4th November 2019

The Invasive Alien Species (Enforcement and Permitting) Order 2019 (“The Order”), which came into force on December 1st 2019 and applies in England and Wales, is part of the UK’s implementation of EU Regulation 1143/2014. The core of these regulations is the EU’s list of Invasive Alien Species of Union Concern (the Union List).

The Union List currently includes thirty-six plant species, including Giant hogweed and Himalayan balsam (listed as “Indian balsam”) as well as aquatic invasives: Water hyacinth, Curly waterweed, Nuttall’s waterweed, Floating pennywort, Water primrose and Parrot’s feather, amongst others.

This legislation has been on the cards for several years, with the EU Regulation having come into force in 2015; the Union List has been in force since August 2016, with its most recent update in August 2019, as discussed on Invasive Weed Solutions.

The provisions of the Order are fairly simple, and have commonalities with the existing Wildlife and Countryside Act 1981 (WCA), which prohibits causing or allowing listed species to grow or spread in the wild. The Order specifically states that “A person who plants or otherwise causes to grow in the wild [any plant on the Union List] is guilty of an offence.”

It is interesting to note that one of the provisions of the order is to add all species on the Union List to Schedule 9 of the WCA. This brings some new species, including tree of heaven and American skunk cabbage onto Schedule 9, with the consequence that waste containing material from these plants could be considered “controlled waste” under the Environmental Protection Act 1990. In addition, the Order makes it an offence to sell any species on the Union List – a provision which already applies to plants on Schedule 9 of the WCA.

The Order also makes it an offence for any species on the Union List to be “intentionally grown, cultivated or permitted to reproduce”. It is not clear to me how you define “intentionally permitting a plant to reproduce” – or whether this particular provision is intended to apply to animals, rather than plants. It remains to be seen how much enthusiasm there is for bringing prosecutions under this Order and how strictly it will be interpreted – especially given the number of prosecutions made under WAC.

The Order allows for permits to carry out research or other specific purposes, and (on a more obscure note), you will be happy to know that you can’t be strip searched even if officers suspect that you are in breach of the Order (but you can be rub-down searched by a member of the same sex, presumably in search of illicit propagules).

Finally (and bearing in mind that the Union list also includes animals), it is also a defence to argue that you kept your Chinese mitten crab because it was already registered as a companion animal before October 1st 2019 and you took reasonably measures to prevent it from reproducing or escaping. Good to know.

Chris Oliver
Operations Manager

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Mike Clough

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