review of the wildlife (ni) order 1985 · wagtail, blue tit, waxwing and stonechat we do not...

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Review of the Wildlife (NI) Order 1985

A consultation response from RSPB Northern Ireland, June 2008

The RSPB welcomes the publication of proposals to reform the Wildlife (NI) Order 1985 (as amended) and

looks forward to continued review of this legislation in line with the provisions of the EU Birds and Habitats

Directives in the future. While broadly supportive of the proposals described in the Department’s

consultation document, we offer some comments that we believe the Department should consider prior to

bringing forward enabling legislation.

The RSPB’s serious concerns over inadequate penalties The RSPB is very concerned that the Department has chosen not to propose increases to the penalties for

wildlife crimes. In England, Scotland and Wales there is provision for custodial sentences in serious cases of

wildlife crime. We believe provision should be made to enable the courts in Northern Ireland to award

custodial sentences which will also bring the ability to award community service penalties and

suspended sentences. This would bring us in line with the penalties offered elsewhere in the UK and give

the public confidence that wildlife crime is viewed as seriously in Northern Ireland as it is elsewhere.

The deterrent value of custodial sentences when combined with an effective policing strategy should not be

overlooked. For example, across the UK, the number of egg collecting incidents dropped significantly

between 1990 and 2005. This decrease is believed to be due to improved policing strategies such as

Operation Easter and the introduction in 2001 of custodial sentences under the Wildlife and Countryside Act

1981 (WCA).

Table 1 presents a summary of our comments on the proposals presented in the consultation document. We

have provided specific comments on the proposals in Annex 1. Within this annex, we suggest additions to

the legislation that would further improve the protection offered to wildlife in Northern Ireland.

Table 1. A summary of the RSPB’s response to the review of the Wildlife Order 1985

Proposal The RSPB’s response

Section 2 – The provisions of the Wildlife (Northern Ireland) Order

1985

Proposal A: Place a statutory duty upon the Department to review the

Schedules to the Wildlife Order every 5 years

We support this proposal.

Proposal B: Amend the Schedules to the Wildlife Order as detailed in

Annex 1

We support the proposed changes, but have

some additions that the Department should

consider.

Proposal C: Place a statutory duty upon government and public bodies

to further the conservation of biological diversity in the exercise of their

duties


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Proposal C: Place a statutory requirement upon the Department to

designate a Biodiversity Strategy, to arrange for reports on progress

every 3 years, to maintain lists of species and habitats of principal

conservation importance and support/promote their conservation


Proposal D: Give the police additional stop and search powers and

powers of entry, but with appropriate safeguards


Proposal E: To enhance the powers available to Wildlife Inspectors,

including powers of entry and powers to take blood or tissue samples


Proposal F: Reckless action which harms wildlife listed on Schedules 1,

5 and 8 should be an offence

We support the principle but believe the

proposal should apply to all species.

Proposal G: Make it an offence for a person to cause or permit another

person to carry out certain acts against wildlife


Proposal H: Amend the wording of the offence for a person to use or

set in position certain articles and devices where these are ‘calculated or

likely’ to cause injury to wild birds and wild animals

We support this proposal, although we would

prefer to have the word ‘likely’ only as this

makes the language clearer, easier to interpret

and therefore the offence easier to enforce.

Proposal I: Create an offence for anyone to attempt to commit wildlife

offences


Proposal J: Set the time limit for bringing prosecutions for all offences

under the Wildlife Order at 6 months from the date on which sufficient

evidence comes to the knowledge of the prosecutor


Proposal K: Qualify the circumstances requiring the Department to be

sure, when issuing a licence in relation to wild birds, there was no

satisfactory solution and, for certain activities, that the licence is on a

selective basis and in respect of a small number of birds, and place a

similar restriction in respect of wild animals and plants. In addition,

add a qualifier that an authorised person should seek to apply for a

licence in the first instance if possible

We support the proposals. However, we urge

the Department to review licensing procedure

as a matter of priority, particularly with

regards the general licences.

Proposal K: Clarify that the powers available to the Department to

issue licences include for the purposes of the re‐population of an area

with, or the re‐introduction into an area of, wild birds; and add

‘research’ and the protection of ‘inland waters’ to existing derogations

(in line with the wording of the Wild Bird Directives)

We support these proposals.

Proposal L: Make it an offence to intentionally or recklessly disturb or

harass basking sharks


Proposal M: Enhance regulation to the risks posed by non‐native

species including:

Prohibit the release of certain mammals onto offshore islands;

Give the Department power to prohibit the sale of any species

it may specify in the Order;

Provide a discretionary general power for the Department to

take actions to control, contain or eradicate invasive non‐

native species and provide associated powers of entry;

Give the Department power to produce Codes of Practice

about invasive non‐native species;

Give courts the power to issue ‘restoration orders’ to persons

convicted of offences under Article 15; and

Extend existing offences to cover hybrids of a species

We support these proposals, but note our

comments below on the discretionary general

power.

Proposal N: Make the provisions of the Wildlife Order applicable to the

Crown and all public bodies that are part of the Crown


Proposal O: Make a number of changes to the regulation of the

use/possession of snares including making it an offence to possess

(without reasonable excuse) a self locking snare and make it an offence

for anyone to set a snare on any land without the owner/occupiers

permission


Proposal P: Get the Department power to issue licences for the

disturbance of animal’s shelters or movement of rare plants (but

excluding European Protected Species) for the purposes of

development

We reserve support for this proposal until the

licensing procedure has been designed.

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Proposal P: Amend Article 18 (3) (c) to permit licensed activity to

conserve wild birds


Proposal P: Make it an offence to contravene the conditions of a licence We support this proposal.

Proposal Q: Amend the definition of ‘wild plant’ to include fungi and

non‐vascular plants; to clarify that protection afforded to Schedule 8

species extends to all stages of their biological cycle


Proposal R: To make a number of changes relating to the protection of

deer including:

Provide a clearer distinction between farmed deer and those in

the wild;

Give the Department power to issue licences for the purposes

of the management of deer populations;

Qualify Article 19(3)(b) so that it only applies whilst the

engine is running or the vehicle is in motion

We reserve judgement on these proposals

until the licensing procedure has been

designed.

The proposal to make the provision to protect the nests of certain bird

species all year round


Proposal S: Prohibit someone from becoming or remaining registered

for the purpose of selling dead wild birds or animals if they have

committed an offence in relation to the trade in internationally

endangered species


Section 3 ‐ Reform of the game licensing and game dealer licensing schemes

Proposal T: Abolish the requirement for anyone hunting game to need

a licence, abolish the requirement for anyone dealing in game to need a

licence, and permit the sale of game all year round but make it an

offence to sell game taken out of season

We support this proposal subject to the

introduction of a licensing system for game

shoots.

Amendments to the Environment Order (NI) 2002

Proposal U: Provide an alternative lesser offence for undertaking

unauthorised activities on land within an ASSI which could result in

damage

We support the proposal

Proposal U: Make it an offence for competent authorities to fail to

notify EHS of permissions given for any operation that might damage

an ASSI


Proposal U: Give the Department power to issue temporary stop

notices and associated provisions


Proposal U: Give the Department power to issue reinstatement notices

and associated provisions


Proposal U: Require owner/occupiers to inform EHS of change of

ownership/tenancy of land in ASSIs


Proposal U: Amend the process for notifying owner/occupiers

We support this proposal but have a number

of suggestions for additions to the

Department’s proposals in relation to

notification, variation, addition and

denotification of ASSIs.

Proposal U: Clarify when it is a reasonable excuse to carry out an

operation which would otherwise be an unlawful act

We cautiously support this proposal to clarify

the reasonable excuse terminology and but

would need to see more detail before offering

full support.

Other considerations

Whether or not mallard should be added to Schedule 3 We are content with this proposal if the

mallard remains on Schedule 2, i.e. it can be

killed or taken outside the close season, and

that the Department monitors any illegal

hunting in the close season prompted by the

proposal for year‐round sale.

Whether or not additional bird species should be added to Schedule 4,

i.e. Crossbill, Hawfinch, Thrush (all), Blackbird, Dunnock, Redstart,

Wagtail, Blue Tit, Waxwing and Stonechat

We do not support this proposal. We would

like to see a review of the species listed prior

to any changes to the Schedule and evidence

of captive‐bred sources for any additional

species prior to inclusion of any new species.

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Whether or not Irish Hare should be added to Schedule 5 We give qualified support for the

Department’s proposal to pursue Option 1,

namely relying on the existing statutory

protection for the Irish hare.

Whether or not the new offence to disturb or harass a basking shark

should also apply to seals


Whether or not the prohibitions provided by Article 15 of the Wildlife

Order and its supporting Schedule continues to be appropriate means

of seeking to prevent potential damage to the environment from non‐

native species that are considered to present the highest possible risks

to the environment

See comments above on recommended

changes to the legislation surrounding non‐

native species under Proposal M.

Whether or not to change the shooting seasons We strongly support the Department’s intent

to retain close seasons for game birds in the

legislation and that hunting dates should

remain unchanged until new evidence is

presented.

Whether or not there should be a new offence of possessing certain

pesticides

We support the introduction of an offence to

possess pesticides without lawful excuse.

For further information on the RSPB’s response, please contact Dr. James Robinson, RSPB Northern Ireland,

Belvoir Park Forest, Belfast BT8 7QT, tel: 028 9049 1547, email: [email protected].

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Annex 1. Comments of specific proposals

Section 2 – The provisions of the Wildlife (Northern Ireland) Order 1985

Proposal A: Place a statutory duty upon the Department to review the Schedules to the Wildlife Order

every 5 years


The principle and value of schedules to provide a hierarchy of protection is well established and does not

warrant change. We do, however, support the idea of a rolling review process for these schedules, and

would not be opposed to each schedule being reviewed every five years, providing that a means exists of

permitting the rapid addition of a species by the Secretary of State if a need is demonstrated between

periodic reviews.

We therefore support the need to regularly review the schedules in order to ensure that the contents remain

concurrent with scientific knowledge and the scale of threats, either posed by or to the species listed. We

strongly believe that inclusion on Schedule 1 must relate to the vulnerability of the species to disturbance

and to their rarity.

We provide comprehensive comments on Schedule 9 below, but believe that at the very least there should be

a more regular review of species on Schedule 9, based on a statutory‐supported risk analysis process. The

Department should seek the advice of its statutory advisors in conducting any review, with

recommendations based on a sound appraisal of the biological context.

Proposal B: Amend the Schedules to the Wildlife Order as detailed in Annex 1

We support the proposed changes, but have some additions that the Department should consider.

Schedule 1

We agree that the species added to Schedule 1 are high priority candidates for special protection from

disturbance. However, we believe that rapidly declining breeding waders in Northern Ireland such as

lapwing and redshank should also be considered for inclusion on this schedule to maximise their chances of

population recovery.

Schedule 2

Any revision of the quarry list must be based on sound science and the precautionary principle, as required

under the Biodiversity Convention. We believe that the impact of shooting on the population status of all

quarry species in Northern Ireland should be reviewed in time for the next review of schedules.

Given its perilous local and global conservation status (classified Near Threatened on the IUCN Red List1),

and that data suggest that Northern Ireland’s breeding birds probably winter exclusively in the country2, we

agree very strongly that the curlew should be removed from Schedule II and added to Schedule I, Part 1,

as a matter of priority. Curlew and lapwing have been added to the UK Biodiversity Action Plan list of

priority species3 due to severe decline over the last 25 years.

We agree that the ruddy duck should be added given the ongoing UK programme to eradicate the species.

1 BirdLife International (in press) Threatened Birds of the World 2008. 2 Bainbridge, I. 2002. Curlew Numenius arquata. In: Wernham, C.V., Toms, M.P., Marchant, J.H., Clark, J.A., Siriwardena, G.M. & Baillie,

S.R. (eds.) The Migration Atlas: movements of the birds of Britain and Ireland. T. & A.D. Poyser, London, pp 332‐225. 3 http://www.ukbap.org.uk/library/BRIG/SHRW/SpeciesandHabitatReviewReport2007andAnnexes1‐3.pdf

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Schedule 6

Given the current conservation status of these species, we support the proposal to remove the common and

grey seal, and pine marten from Schedule 6. Schedule 9

We welcome proposals aiming to reduce the number and severity of non‐native species introductions to

Northern Ireland. However, though the current proposal to update Schedule 9 is a step in the right direction,

we believe that a more comprehensive review of the legislative framework relating to non‐native species, in

particular, Article 15 of the Wildlife Order, is necessary. Please see our response to Proposals K and M (see

below).

We are concerned by the use of the term ‘general pest species’ in the reasoning for listing on Schedule 9. We

recommend that the Department use a more specific criterion, such as animals and plants that have a

significant economic impact or create a health and safety problem.

Proposal C: Place a statutory duty upon government and public bodies to further the conservation of

biological diversity in the exercise of their duties

We strongly support the introduction of this duty.

We expect the duty to apply to: Ministers, Government Departments, Executive agencies, Non‐departmental

Public Bodies, Local Authorities, Public corporations (e.g. Northern Ireland Water), and any other body

carrying out statutory functions.

We would like to see the definition of the term ‘conservation of biodiversity’ to include ʹrestoring or

enhancing species populations or habitatsʹ included in the legislation. We feel this would be useful in

explaining that the duty does not simply refer to the avoidance of extinction or halting biodiversity loss.

We suggest that guidance is produced on what the biodiversity duty actually means for public bodies.

Proposal C: Place a statutory requirement upon the Department to designate a Biodiversity Strategy, to

arrange for reports on progress every 3 years, to maintain lists of species and habitats of principal

conservation importance and support/promote their conservation

We strongly support the introduction of these statutory requirements.

We propose that the Northern Ireland Biodiversity Strategy (NIBS) is the designated strategy under these

proposals and that UK and Northern Ireland Species and Habitat Action Plans are identified as the key

mechanism to support and promote the conservation of species and habitats of principal conservation

importance.

We recommend that the three yearly assessment of progress should also review work carried out by

government and public bodies under the biodiversity duty (see above).

Proposal D: Give the police additional stop and search powers and powers of entry, but with appropriate

safeguards


The extension of powers of arrest to all offences included in Part II of the Wildlife Order would remove

confusion that exists for enforcement officers and we fully support such a change.

We agree that the power enabling lay magistrates to grant search warrants should be extended to all offences

under Part II of the Wildlife Order to remove confusion and to assist the enforcement of the legislation.

Powers of entry to detect offences

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We propose that additional powers of entry onto land be granted to police officers to detect offences. This

would require the extension of powers for an officer to go onto and remain on land without a warrant where

the officer has reasonable grounds to believe that Schedule 1 or 5 species are present for the purpose of

ascertaining whether or not offences are being committed with regard to those species. This would overcome

the problem of police being unable to identify offences through lack of access.

Proposal E: To enhance the powers available to Wildlife Inspectors, including powers of entry and

powers to take blood or tissue samples


Proposal F: Reckless action which harms wildlife listed on Schedules 1, 5 and 8 should be an offence

We support the principle that ‘intentional’ should have ‘reckless’ added alongside throughout the Wildlife

Order where there is currently a demand for intent to be proven. However, we believe this should apply to

all species, not just those identified on Schedules 1, 5 and 8. This will overcome the difficulty of proving

intent, where misidentification could be claimed as a defence.

Proposal G: Make it an offence for a person to cause or permit another person to carry out certain acts

against wildlife


Liability of employers

We suggest the inclusion of legislation to make the employer liable for any offence committed by his

employee. We propose that an employer should be guilty of an offence if a person in his/her employ

commits an offence contrary to Articles 4, 6, 10 and 12 of the Wildlife Order, where the offence is in

furtherance of the employer’s commercial interest, e.g. the illegal killing of predators to protect game birds

for shoots run by an employer. This measure is designed to discourage employers from providing tacit

support for the illegal activities of their employees. This would have the potential to reduce the incidence of

raptor persecution significantly.

Proposal H: Amend the wording of the offence for a person to use or set in position certain articles and

devices where these are ‘calculated or likely’ to cause injury to wild birds and wild animals

We support this proposal, although we would prefer to have the word ‘likely’ only as this makes the

language clearer, easier to interpret and therefore the offence easier to enforce.

Proposal I: Create an offence for anyone to attempt to commit wildlife offences


To ensure damage is not done before an illegal act is undertaken, we suggest that the Wildlife Order be

amended to include the text:

1. Any person who attempts to commit an offence under the foregoing provisions of this Part shall be guilty of an

offence and shall be punishable in like manner as for the said offence.

2. Any person who for the purposes of committing an offence under the foregoing provisions of this Part, has in

his possession anything capable of being used for committing the offence shall be guilty of an offence and shall

be punishable in like manner as for the said offence.

Incidental result of an otherwise lawful operation

We are aware that, every spring, there is considerable public anxiety over the timing of development and

land management operations undertaken using a defence of Article 5(2)(c) of the Wildlife Order, which

results in the destruction of active nests. We fully recognise that some of this may be justified on the grounds

of public health and safety, but we believe that some of this destruction goes beyond that permitted under

Article 9 of the Birds Directive (and in this respect does not fully transpose the Directive into domestic

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legislation). We believe that there is a need for greater clarity in respect of this part of wildlife legislation,

and suggest that this should be clarified in the review of the Wildlife Order.

Proposal J: Set the time limit for bringing prosecutions for all offences under the Wildlife Order at 6

months from the date on which sufficient evidence comes to the knowledge of the prosecutor


Proposal K: Qualify the circumstances requiring the Department to be sure, when issuing a licence in

relation to wild birds, there was no satisfactory solution and, for certain activities, that the licence is on a

selective basis and in respect of a small number of birds, and place a similar restriction in respect of wild

animals and plants. In addition, add a qualifier that an authorised person should seek to apply for a

licence in the first instance if possible

The RSPB supports the proposals listed at paragraph 89i‐iii. We strongly agree that the revised Wildlife

Order should reflect the requirements of both Article 9 of the Birds Directive and Article 16 of the Habitats

Directive, which require it to be shown that there is ‘no other satisfactory solution’ to the killing of wild birds

or species listed in Annex IV and V.

Under Article 9 of the Birds Directive, we believe that there is an onus on the individual operating under the

terms of the licence to be able to demonstrate that damage is serious enough to warrant such action and that

no other means is available to address their particular situation. However, there is currently no requirement

on most licences to consider other solutions, and we agree that this should be rectified through revision of

the Wildlife Order.

General licence procedure

To coincide with this revision of the legislation, we urge the Department to review licensing procedure,

particularly with regards the general licences. We believe that a review of the general licences should:

Require individuals operating under a licence to be able to demonstrate that their circumstances require

such action, that lethal control will be effective and that no other solution is available.

Assess the evidence of impact that each species included on a general licence has on each activity listed

in Article 9(1) of the EC Birds Directive. This should include assessment of scale and frequency of

damage, effectiveness of non‐lethal deterrents and effectiveness of lethal control. Species should only be

included on general licences where there is demonstrable evidence of the impact of each species and

where the impact is generally so serious or widespread that granting individual licences would be

impractical.

Consider the conservation status of the species concerned in determining the appropriateness of its

listing on the general licence. We are particularly concerned that several priority species for conservation

action in Northern Ireland remain on the general licence. We advocate the removal of house sparrow,

starling, great black‐backed gull and herring gull as a matter of priority given the large declines in the

populations of these species in the UK and Ireland in recent decades. The breeding population of herring

gulls and great black‐backed gulls declined by 90% and 32% respectively across the island of Ireland

between 1969/70 and 1998/024 whilst the house sparrow and starling populations in the UK have

declined by 62% (1977‐1999) and 66% (1974‐1999), respectively5. The house sparrow has also declined by

around 19% in Northern Ireland between 1994 and 20066.

Include terms and conditions that accurately reflect the requirements of Article 9 of the Birds Directive,

to help prevent illegal or misinformed activity. This would be aided by guidance that clearly defines the

4 Mitchell, P.I., Newton, S.F., Ratcliffe, N. & Dunn, T.E. 2004. Seabird populations of Britain and Ireland. T & AD Poyser. 5 Gregory, R.D., Wilkinson, N.I., Noble, D.G., Robinson, J.A., Brown, A.F., Hughes, J., Procter, D., Gibbons, D.W. & Galbraith, C. A. 2002. The population status of birds in the United Kingdom, Channel Islands and Isle of Man. British Birds 95: 410-448. 6 Raven, M.J., Noble, D.G. & Baillie, S.R. 2007. The Breeding Bird Survey 2006. BTO Research Report No. 471. BTO/RSPB.

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purpose of each licence. Each licence should state explicitly that failure to comply with all the terms and

conditions while using the licence constitutes a criminal offence under the Wildlife Order.

Prohibit the use of the general licences by individuals who have been convicted of wildlife or animal

welfare offences (as introduced in Scotland following a recent review of the general licences).

Introduce a monitoring system to collect data on the number and species of birds killed/taken under the

general licences. It should be a requirement of licensees to submit an annual return that provides this

information.

Improve the conditions which apply to the use of cage traps:

1. The tightening of the condition guiding the state of cage traps when they are not in use, to

ensure that they cannot easily be reset, e.g. by removing the access door to fixed cage traps, or

by storing portable cage traps. All containers for food and water should be removed so that

birds are not attracted into the trap. This is to prevent the incidence of birds entering unused

traps and starving to death, which has been reported in a variety of species.

2. That the use of cage traps is confined to the taking of corvid species only and that the use of

Larsen traps is confined to the taking of magpie, carrion crow and hooded crow.

3. The addition of a condition to ensure that cage traps are inspected from a sufficiently near

distance so that smaller birds caught in a trap may be detected.

4. The addition of a condition, on all licences where the use of cage traps is permitted, requiring

users of the licences to maintain records of birds caught in the traps. In view of the widespread

concerns regarding non‐target capture, misuse and abuse of cage traps, these records would

inform future regulation decisions.

5. The addition of a condition to ensure that the trap user’s contact details are fixed to the trap, to

allow the authorities to locate users during enquiries.

Proposal K: Clarify that the powers available to the Department to issue licences include for the purposes

of the re‐population of an area with, or the re‐introduction into an area of, wild birds; and add ‘research’

and the protection of ‘inland waters’ to existing derogations (in line with the wording of the Wild Bird

Directives)

We support these proposals.

The RSPB believes that the translocation of native species within their historic range, subject to the IUCN

Guidelines, can have considerable benefits for conservation and for public engagement. However, we are

concerned that there are currently no restrictions on the release of native birds or animals and support

proposals to close this loophole in the law.

It is important that the proposed power to issue licences for this purpose is utilised. Our response to

Proposal M outlines how we believe the legislation in this area should be developed (see below), but as an

interim measure, we suggest that the regulation of native species reintroductions/translocations can be

achieved by adding certain native species to Schedule 9. Defra and the Welsh Assembly Government

proposed this in a recent review of Schedule 9 of the WCA. Releasing individuals of these species without a

licence would constitute an offence. Native species appropriate for listing on Schedule 9 would be those

which are currently, or likely to be, subject to translocation/reintroduction, e.g. chough. This would ensure

that releases for conservation purposes are only carried out under the auspices of approved projects.

Poor execution of release programmes, such as a failure to consider the genetic origin of the stock, failure to

undertake adequate veterinary checks or to undertake a population viability analysis to maximise the

chances of success, risks threatening native wildlife, wasting conservation resources and bringing the

technique into public disrepute. We are also concerned that some well‐intentioned translocations may be

outside the native range of the species, with consequent problems only emerging after several years. We are

also aware of instances where trading standards officers have prosecuted individuals for raising money

against translocation schemes that have not occurred.

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We believe that controls on the human movement of native wild birds and animals should be as strict as

those on non‐native species, and that this should be subject to a licensing procedure, administered by the

Department. We would expect licences to re‐introduce or otherwise translocate species to be granted in only

a relatively few cases, where there is an obvious and significant conservation benefit, such as achieving

population or range expansion or facilitating movement of organisms undergoing range change indirectly

caused by human activity (e.g. climate change). Licences should be issued only for well‐planned proposals

that can be shown to satisfy the IUCN’s internationally agreed guidelines for re‐introduction projects.

Proposal L: Make it an offence to intentionally or recklessly disturb or harass basking sharks


Proposal M: Enhance regulation to the risks posed by non‐native species including:

Prohibit the release of certain mammals onto offshore islands;

Give the Department power to prohibit the sale of any species it may specify in the Order;

Provide a discretionary general power for the Department to take actions to control, contain or

eradicate invasive non‐native species and provide associated powers of entry;

Give the Department power to produce Codes of Practice about invasive non‐native species;

Give courts the power to issue ‘restoration orders’ to persons convicted of offences under Article

15; and

Extend existing offences to cover hybrids of a species

We strongly support these proposals, but note our comments on the discretionary general power, below.

The RSPB’s experience of non‐native species, such as tackling the spread of invasive plants into priority

wetland habitats and supporting activity to reduce the risk to the globally‐threatened white‐headed duck

and internationally‐important populations of waders, mean that we have some suggestions for further

improvements to the Wildlife Order.

Article 15(1) of the Wildlife Order makes it an offence to release ʹany animal which is of a kind which is not

ordinarily resident in and is not a regular visitor to Northern Ireland in a wild stateʹ. This wording is

problematic and fails to reflect either the practical or the ecological contexts in which non‐native species

legislation should operate. There are some animal species that are not naturally native to Northern Ireland

but that are established in the wild here. The release of more individuals of these species might compound

ecological or economic problems that they cause now or in the future. However, these species are now

‘ordinarily resident in a wild state’ in Northern Ireland and so their release would be legal under Article 15

of the Wildlife Order, were it not accompanied by a list of the relevant species and a specific clause in the

legislation. This is the rationale for Schedule 9, Part 1 and Article 15(1()(a). The current wording of Article 15

(1) fails to reflect the general ecology of species invasions:

Species native to one part of Northern Ireland or the Republic of Ireland but not to another have at

least as much potential to establish in the wild as non‐natives post‐release and may cause as much

damage as those species originating from overseas. This is because they will tend to be more closely

adapted to the physical and biological conditions met in their native range than are those species

native to areas further afield. Failure to encompass such species under the functional definition of

‘non‐native’ is an important omission in the legislation.

The 2003 European Strategy on Invasive Alien Species emphasises the importance of preventing the

establishment of non‐native species as a key aim. In contrast, Schedule 9, Part 1 currently focuses on

preventing releases of species that are already established in the wild. This will in general have little

or no useful impact in addressing future problems caused by non‐native species. A simultaneous

focus on prevention of future problem introductions, and on the control, containment or eradication

of species already established, is required.

Schedule 9 is also difficult to enforce. Despite increasing international movement of people and goods and

the consequent accelerating rate of non‐native species introductions, few successful prosecutions have been

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brought for the introduction of non‐native species anywhere in the UK. The lack of formal definition of

terms such as ‘non‐native’ and ‘wild’ is partly responsible, as are difficulties in convincingly demonstrating

such concepts as ‘release’ or ‘causing to grow’ in courts.

The problems associated with the construction of the Wildlife Order Section 15(1) and Schedule 9 are further

highlighted by the current proposals under consultation. While there is no proposal to alter the title of

Schedule 9, Part I, ʹAnimals established in the wildʹ, the addition of a number of species that are not, in fact,

currently established in the wild in Northern Ireland is proposed (we assume these are not already covered

under Article 15(1)(a) offences). This inconsistency derives from an attempt to utilise Schedule 9 for a

purpose other than its original one, and while we recognise the benefits this offers for a precautionary

approach towards non‐natives, we are concerned that it may generate problems for future prosecutions.

In summary, we believe this review of the Wildlife Order should:

Introduce and define the terms ‘native’, ‘non‐native’, ‘release’, ‘wild’ and ‘wild state’, and thus

incorporate the principle that a species native to one part of the island of Ireland but not to another

is as or more likely to be damaging as species from overseas, when introduced outside its natural

range. We acknowledge the difficulties to which Part 110 of the consultation document refers, but

trust that the Department will recognise that the need for such definitions is crucial. We suggest the

following definitions:

Native: means in relation to any plant or animal, a plant or animal the presence of which in any part

of Northern Ireland or the Republic of Ireland is or would be within the past or present natural

distribution of the species or subspecies in which it is taxonomically classified;

Non‐native: means in relation to any plant or animal, a plant or animal the presence of which in any

part of Northern Ireland or the Republic of Ireland (i) is or would be outside the past or present

natural distribution of the species or subspecies in which it is taxonomically classified, where such

natural distribution includes any part of Northern Ireland or the Republic of Ireland or otherwise;

and (ii) directly results from or would directly result from any action of man; and includes any

hybrid of any such plant or animal;

Release: means any human action the direct or indirect consequence of which is to facilitate the

movement or dispersal of any animal or plant into the wild;

Wild: means any location or area from which the unaided movement or dispersal of any animal or

plant to another location or area is possible under normal conditions;

Wild state: means the state of any animal or plant where the animal or plant may move or disperse

unaided from any location or area to another location or area under normal conditions.

Introduce a prohibition on the release of native animals without a licence (please see our response to

Proposal K).

Introduce a duty (rather than the ‘discretionary general power’ proposed) on Ministers to require

action (via a nominated appropriate body) to control, contain or eradicate those animals or plants

deemed to pose a serious threat to flora, fauna or social or economic interests.

Extend the prohibition of release to any plant/invertebrate/micro‐organism (as well as bird/animal)

outside its native range.

Placing a duty of care on anyone possessing/selling/advertising a non‐native species (underpinning

the codes of practice recommended in the proposals).

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We also propose that the Wildlife Order reflects, for vertebrates (not plants and invertebrates) the approach

taken in the Scottish Aquaculture and Fisheries Act 2007 and, rather than listing species piecemeal (which

has proved problematic), places restrictions on broader taxa (i.e. fish, amphibians, reptiles, birds and

mammals) with the potential for specific exceptions which can be released under licence.

Schedule of non‐native species permitted for release into the wild

If Article 15 is amended in the way suggested above, to prohibit the release into the wild of any non‐native

or native organism, it may be appropriate to produce a new schedule of species which, having been through

a risk analysis, are considered to pose very low risk to native biodiversity and which, through a positive

listing process agreed by the Department, can be released (e.g. crop types already widely used).

Polluter pays principle and fines

We would draw attention to the recommendation of the UK non‐native species review group that fines for

offences under Article 15 should be calculated on a ‘polluter pays’ basis, to cover the costs of post‐release

management. This will be in line with the requirements of the EU Environmental Liability Directive and

should be an important element of any ‘restoration orders’ required.

Proposal N: Make the provisions of the Wildlife Order applicable to the Crown and all public bodies that

are part of the Crown


Proposal O: Make a number of changes to the regulation of the use/possession of snares including

making it an offence to possess (without reasonable excuse) a self locking snare and make it an offence

for anyone to set a snare on any land without the owner/occupiers permission


We believe that, as Article 6 is to birds, this is an important supplementary to Article 10, for conservation

reasons. We recognise the strong public concern to prohibit the use of such devices for animal welfare

reasons, most of which are prohibited under Annex VI of the Habitats Directive.

Proposal P: Get the Department power to issue licences for the disturbance of animal’s shelters or

movement of rare plants (but excluding European Protected Species) for the purposes of development

We reserve support for this proposal until the licensing procedure has been designed. We believe a strict

licensing scheme would be appropriate to minimise any adverse impacts on the status of the species’

involved.

Proposal P: Amend Article 18 (3) (c) to permit licensed activity to conserve wild birds


The impact of hedgehogs on breeding bird colonies on the Uists in Scotland highlighted a loophole in

Section16(3)(c) of the WCA (as amended) and, therefore, Article 16(3)(c) of the Wildlife Order. At present, a

licence cannot be issued to permit the removal of a protected wild animal where it threatens bird

conservation, only if it threatens a wild animal or plant. We agree that Article 16(3) should be brought into

line with Article 18(1) and that “for the conservation of fauna and flora” should replace “conserving wild

animals or wild plants”. We recognise that the proposal to prohibit the release of certain mammals onto

offshore islands would also cover this issue, but mechanisms should also be present for mainland situations.

Proposal P: Make it an offence to contravene the conditions of a licence


Requirement for reporting on licences

The EU Birds and Habitats Directives require Member States to report regularly on the implementation of

Article 9. This requirement is not incorporated into domestic legislation, and we believe that, as a matter of

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transparency, government should have a statutory duty to report annually on the number of licences

issued and the number of organisms killed/taken/removed under these licences.

Proposal Q: Amend the definition of ‘wild plant’ to include fungi and non‐vascular plants; to clarify that

protection afforded to Schedule 8 species extends to all stages of their biological cycle


Proposal R: To make a number of changes relating to the protection of deer including:

Provide a clearer distinction between farmed deer and those in the wild;

Give the Department power to issue licences for the purposes of the management of deer

populations;

Qualify Article 19(3)(b) so that it only applies whilst the engine is running or the vehicle is in

motion

We reserve judgement on these proposals until we are assured that the management of deer in this way is:

a) Justified by the individual applying to control these animals,

b) That non‐lethal methods of control have been tried and are shown to be impractical, and

c) That the impact on native deer populations is monitored to secure the favourable conservation

status of these species.

The proposal to make the provision to protect the nests of certain bird species all year round


Under Article 5(b) of the Birds Directive, it is an offence to damage or destroy a traditional nest or nest site,

when it is not in use. The European Court of Justice ruling (case 252/85, of 27 April 1988) states that “It must

be stressed that the prohibitions set out in Article 5(b) and (c) of the Directive must apply without any limitation in

time. An uninterrupted protection of the birds’ habitat is necessary since many species re‐use each year nests built in

earlier years. To suspend that protection throughout a particular period of the year cannot be considered to be

compatible with the abovementioned prohibition.” Thus, we believe that this review is an opportunity to correct

this deficiency, by listing in a separate schedule those species that typically re‐use the same nest site. This

provision has been enacted in Scotland through the Nature Conservation (Scotland) Act 2004 and in England

and Wales through the Natural Environment and Rural Communities Act 2006.

There is increasing evidence that the nests and nest sites of some species are deliberately targeted by

individuals who want to prevent successful breeding. Examples include:

Nest sites regularly used by ground‐nesting birds of prey, such as merlin and hen harrier, being

burned in early spring, just before the birds return;

Golden eagle nests being pulled apart; and

Peregrine eyries being blocked with a strategically placed stone or covered in netting to prevent the

scrape or ledge being used.

This is very often done in the knowledge that while the bird is not present, no offence is committed, but it

will have the desired effect of preventing birds from breeding in that area.

We agree that the golden eagle is a likely candidate for re‐establishment that would benefit from this form of

protection, but we are keen to see the nest sites of peregrines, hen harriers, merlin, barn owls and chough

considered for protection under this provision as they are also re‐used each year.

Period of breeding

Article 5(d) of the Birds Directive requires Member States “to establish a general system of protection for all

species of birds…prohibiting in particular… deliberate disturbance of these birds, particularly during the period of

breeding and rearing”. We believe that for some species, the period of breeding does not begin with the

building of the nest, but with display activity (such as sky‐dancing hen harriers). Disturbance during this

period can be a critical factor in the subsequent breeding success, and we believe that Schedule 1 and Part II

(Article 5) of the Wildlife Order should be extended to include this important part of the reproduction

process.

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Proposal S: Prohibit someone from becoming or remaining registered for the purpose of selling dead

wild birds or animals if they have committed an offence in relation to the trade in internationally

endangered species


Section 3 ‐ Reform of the game licensing and game dealer licensing schemes

Proposal T: Abolish the requirement for anyone hunting game to need a licence, abolish the requirement

for anyone dealing in game to need a licence, and permit the sale of game all year round but make it an

offence to sell game taken out of season

We support this proposal subject to the introduction of a licensing system for game shoots.

While we understand the Department’s desire to scrap outdated and ineffectual licensing requirements

under the game licensing legislation, we believe that the Department should consider the merits of

introducing a compulsory licensing scheme for all game shoots in Northern Ireland, and to conduct a full

review of the impact of shooting on game and quarry species. We believe that changes to the Wildlife Order

are required to complement the Department’s proposed changes to the game licensing process, to ensure

that protection for wild game birds is enhanced. We are therefore concerned that there is currently no

legislative opportunity proposed in the consultation document to achieve this.

The EC Birds Directive makes clear the circumstances under which hunting is permissible. It brings a duty of

care towards quarry species, and places a responsibility on both Member States and those who hunt to

ensure that the populations of quarry species are conserved. Should an individual be convicted of an offence

when in pursuit of quarry, the courts should be able to punish that individual by removing their

opportunity to hunt birds. In our opinion, in the absence of an effective game licensing system, an alternative

means of achieving this is needed.

Therefore, we believe an improvement on licensing individuals would be to license game shoots. We believe

that game shoots should adhere to a set of commonly agreed standards, including compliance with the

Wildlife Order. We would like the Department to assess the merits of introducing a compulsory licensing

scheme for all game shoots – both upland and lowland – in Northern Ireland. Failure to adhere to agreed

standards, including legislation governing the protection of quarry species and birds of prey would then

result in courts having the option to withdraw a shoot’s licence to operate.

Shooting on Sundays

We believe that there is merit in maintaining the power to prohibit shooting on Sundays, both to provide

recovery time for both quarry and non‐quarry species, and to provide for public enjoyment of birds in the

countryside on one out of seven days each week.

Amendments to the Environment Order (NI) 2002

Proposal U: Provide an alternative lesser offence for undertaking unauthorised activities on land within

an ASSI which could result in damage

We support the proposal to create a new criminal offence of third party damage to an Area of Special

Scientific Interest (ASSI), where successful prosecution of the offender would not be dependent on proving

that they knew the damage they were causing was occurring within an ASSI.

While the existing offence of third party damage under Article 46(6) remains important, it can sometimes

prove difficult to secure a prosecution where damage has occurred but the size or circumstances of the site

render it difficult to prove knowledge of the land’s ASSI status. The creation of a similar offence not

dependent on proving this knowledge (with an appropriate lesser penalty) will address this problem and

usefully deter other damage to sites.

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Proposal U: Make it an offence for competent authorities to fail to notify EHS of permissions given for

any operation that might damage an ASSI


There are separate duties placed upon these bodies to consult the Department, according to whether they are

proposing to carry out an operation likely to damage an ASSI themselves, or whether they are permitting

others to carry out an operation likely to damage an ASSI. At present, failure to comply with their existing

duties under Article 39 (to notify the Department before carrying out, in the exercise of their functions,

operations likely to damage a ASSI) is a criminal offence. However, failure to comply with their existing

duties under Article 40 (to notify the Department before permitting or authorising an operation likely to

damage an ASSI) is not currently an offence, even thought the two are based on similar judgements. By

making failure to comply with Article 40 a criminal offence, both duties would be consistently enforceable.

Proposal U: Give the Department power to issue temporary stop notices and associated provisions


Stop orders allow for a ‘shoot first ask questions later’ approach. They make an activity in general an offence

rather than having to establish the actions of an individual at a point in time are damaging. They also allow

cumulative effects to be made an offence.

However, although this appears to be a useful tool for immediate action to stop damage, it should not be

used in favour of longer–term solutions, such as ASSI byelaws, or as an excuse to avoid formal prosecution

where this would actually be an appropriate course of action.

Proposal U: Give the Department power to issue reinstatement notices and associated provisions


Proposal U: Require owner/occupiers to inform EHS of change of ownership/tenancy of land in ASSIs


Proposal U: Amend the process for notifying owner/occupiers

We support this proposal but have some suggestions for additions to the Department’s proposals in relation

to notification, variation, addition and denotification of ASSIs:

Article 28. Declaration of ASSI

Section 1(a): There is no definition of the word ‘land’ in the Environment Order. It is, therefore, unclear as to

whether it applies to areas below the mean low water of spring tides, i.e. marine areas. A definition should

be included.

Section 9: The Environment Order indicates that a modified decision will apply from the point the

owner/occupier is informed. In the WCA in England and Wales, it is the point at which the Department

confirms the modification. This could have Human Rights implications as duties in relation to the modified

declaration arise at that moment in time and yet the owner/occupier would not be aware of a modified

declaration. We suggest the Department should modify the wording to match that presented in the WCA.

Section 10: The Environment Order rightly states that a declaration ceases to have effect if it is rescinded

under Article 28(6)(b)(ii). It remains unclear, however, what happens if neither of the conditions of Article

28(6)(b)(i) or 28(6)(b)(ii) are met. If the Department fails to confirm or rescind the declaration, in theory it

appears the declaration stands, but this may not stand up in court. Article 28(6) of the WCA ensures that this

cannot happen and similar wording would benefit the Environment Order.

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There remains nothing in the Environment Order to say that a declaration should be a local land charge. This

may cause problems for variations and additions to declarations, i.e. new owner/occupiers are not aware of

their role and responsibilities. All declarations should be a local land charge in Northern Ireland.

Article 29. Variation of declaration

Section 1: The Department must consult the Council before making a declaration, but not when proposing to

vary the declaration. The lack of requirement to consult appears to be an omission and is inconsistent. We

suggest that provisions for this consultation should be included in the amendments.

Article 30. Declaration of additional land

There is currently no legislation to cover the enlargement of an ASSI. A new section allowing for additional

land of a different interest to be added to an existing ASSI needs to be included. In addition, the

owner/occupier of the existing and new areas needs to be notified of this change.

Article 31. Denotification

Section 4(b)(i): The Environment Order should not have the power to confirm the notification with or

without modification if the area to be denotified is larger than that declared in Article 31(1). This section

should be amended.

Section 4(b)(ii): The consequences of doing neither (i) or (ii) are established. If the Department does not

rescind the declaration to denotify, then the declaration made under Article 32(1) must cease to have effect.

We believe it would add clarity to include the wording, ‘if they do neither the notification shall cease to have

effect’.

Article 32. Duties of owners and occupiers of land included in ASSI

Section 1: It appears that whilst there are time constraints once notification has been served, there is no time

limit between declaration being made under Article 28(1) and the requirement to notify the owner/occupier

under Article 28(3). This means that obligations arising from Article 33(1) could apply even though an

owner/occupier has not been notified of the declaration. This was solved in the WCA because it refers to

notification under Section 28(1)(b), i.e. when the owner/occupier has been notified. The Environment Order

would benefit from inclusion of this wording.

Proposal U: Clarify when it is a reasonable excuse to carry out an operation which would otherwise be an

unlawful act

We cautiously support this proposal to clarify the reasonable excuse terminology and we are disappointed

that the detail is not included in the consultation document. We reserve judgement of the changes until we

have had sight of the full proposals.

There is no ‘Change of owner or occupier’ section. This makes it difficult for the Department to engage with

new owner/occupiers, outlining their responsibilities etc. There is also no provision for offences by bodies

corporate. We suggest the Department adds wording to close these loopholes.

Other considerations

Whether or not mallard should be added to Schedule 3

We are content with this proposal if the mallard remains on Schedule 2, i.e. it can be killed or taken outside

the close season. We are concerned that the legality of selling mallard throughout the year may lead to illegal

hunting of this species within the close season. We therefore urge the Department to introduce a bespoke

monitoring programme to investigate whether the proposal results in an increase in illegal shooting in the

close season and to review the listing of the species on Schedule 3 at the next opportunity to ensure that the

conservation status of the species has not been compromised.

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Whether or not additional bird species should be added to Schedule 4, i.e. Crossbill, Hawfinch,

Thrush (all), Blackbird, Dunnock, Redstart, Wagtail, Blue Tit, Waxwing and Stonechat

Since the drafting of Schedule 4 of the Wildlife Order, we have become increasingly concerned over the

paucity of evidence to show that Priority Species identified under the Northern Ireland Biodiversity

Strategy, such as reed bunting and yellowhammer, have self‐sustaining captive‐bred populations. We would

like to see a review of the species listed prior to any changes to the Schedule and evidence of captive‐bred

sources for any additional species prior to inclusion of any new species.

We would also want to see the groups ‘Thrush (all)’ and ‘Wagtail’ defined to species level prior to any

further consideration.

Ringing conditions

We propose the creation of a new offence of tampering with approved rings or possessing birds wearing

tampered rings.

Minimum size of cage

In Article 9(1) of the Wildlife Order, we believe the phrase ‘height, length or breadth’ should be amended to

‘height, length and breadth’, as this has proved the source of some confusion in the interpretation of the

purpose of this Article.

Whether or not Irish Hare should be added to Schedule 5

We give qualified support for the Department’s proposal to pursue Option 1, namely relying on the existing

statutory protection for the Irish hare. Despite the amount of scientific information available on this species,

its detailed ecological requirements and its true status remain a matter of debate, the latter particularly so

following recent studies showing the impacts of survey methods on population estimates. We are also very

mindful of recent work suggesting the species may in fact be unique to the island of Ireland. Whilst at

present supporting Option 1, we therefore urge further work to be undertaken to look at ongoing changes in

population status, the species’ relation to the introduced brown hare (with which it may interbreed) and re‐

evaluate the situation during the next five yearly review.

Whether or not the new offence to disturb or harass a basking shark should also apply to seals


Whether or not the prohibitions provided by Article 15 of the Wildlife Order and its supporting

Schedule continues to be appropriate means of seeking to prevent potential damage to the

environment from non‐native species that are considered to present the highest possible risks to

the environment

See comments above on recommended changes to the legislation surrounding non‐native species under

Proposal M.

Whether or not to change the shooting seasons

We strongly support the Department’s intent to retain close seasons for game birds in the legislation.

We note however, that the Guidance from the European Commission highlights the Court of Justice’s ruling

that Article 7(4) requires Member States to set the hunting period to ensure that the period ʺguarantees

complete protection of the species concerned”. We do not believe that any new evidence has been presented by

the Department to guarantee that any changes to the existing shooting seasons would be in line with the

Commission’s guidance. We believe, therefore, that the hunting dates should remain unchanged until new

evidence is presented.

Whether or not there should be a new offence of possessing certain pesticides

The RSPB’s experience of supporting the Police Service Northern Ireland (PSNI) and the Environment and

Heritage Service in the investigation of crimes against wild birds, particularly the poisoning of birds of prey,

has highlighted a legal loophole which allows an individual to possess highly toxic chemicals for which they

18

could have no legitimate use other than to commit an offence of poisoning animals or birds. We propose the

introduction of an offence to possess pesticides without lawful excuse.

The experience in Scotland, even in the relatively short time since the implementation of The Possession of

Pesticides (Scotland) Order in 2005, demonstrates the effectiveness of possession controls as an enforcement

tool. The introduction of possession controls is currently being discussed for England and Wales.

The underlying principle behind possession controls is that any person with a legitimate reason to possess a

pesticide can do so without having to comply with additional regulations. Anyone who needs to use a

chemical on land under their management for an approved purpose (in accordance with relevant pesticide,

biocide or poisons legislation) has nothing to fear from the introduction of possession controls. The controls

will be directed to a relatively few pesticides implicated in poisoning incidents. We are happy to advise on

those substances we believe should be subject to possession controls in due course.

Other issues of concern to the RSPB There are several important issues that deserve consideration by the Department prior to finalising proposed

changes to the legislation:

Wildlife Order

Offences committed elsewhere in the EU

The RSPB is increasingly concerned about UK residents undertaking wildlife crime overseas, especially egg‐

collecting in the European Union. As laws have become more rigorous, we are obtaining evidence that the

most hardened individuals are transferring their activities abroad. Unless they are caught in the act, it is

highly unlikely that they will subsequently be deported and prosecuted in the country where the offence

took place, should their crime come to light in the UK at a later date. We note that domestic legislation in

other parts of Europe (e.g. Germany), permits prosecution for certain offences committed elsewhere in the

European Union, and we suggest that new wildlife legislation should seek to block this loophole by enabling

prosecutions of residents of Northern Ireland for offences committed abroad.

Best‐practice standards of hunting

We believe that consideration should be given to the extent to which hunting of birds in Northern Ireland

meets some of the best‐practice standards of sustainable hunting elsewhere in Europe, as per the spirit of

Article 7 of the Birds Directive. We note, for example, that the UK is now unusual in not requiring all hunters

to undergo some form of proficiency test in order obtain a permit to shoot. Under Section 3 of this

consultation document, it has been proposed that licenses for game should be abolished and we accept this

proposal subject to the introduction of licenses for shoots. However, we do wish to see a system of bag

returns introduced so that the Department can monitor the sustainability of hunting on wild birds and thus

meet the requirements of Article 7(1).

Education

Given the need to ensure that the Wildlife and Environment Orders are understood by everyone in Northern

Ireland, we propose the inclusion of the following text relating to Part 1:

Every local authority shall take such steps as they consider expedient for bringing to the attention of the public and of

schoolchildren in particular the effect of—

(a) the provisions of this Part; and

(b) any order made under this Part affecting the whole or any part of their area.

Environment Order

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Protection of Natura 2000 sites

We believe the Department should secure the protection and management of Natura 2000 sites in Northern

Ireland by extending the provisions of the Environment Order to cover all Special Protection Areas (SPAs)

and Special Areas of Conservation (SAC). This is particularly important given the recent designation of

Special Protection Areas for hen harriers and merlin that are not underpinned by ASSI notification.

A new statutory purpose

We suggest there is a need to include a new statutory purpose for the Department that refers to the need for

a series of ASSIs ‘representative of the diversity and geographic range’ of natural features (with three

geographic contexts – Northern Ireland, Ireland and the EU).

Transitional arrangements

Given the potential magnitude of changes to the site protection process, we suggest that the Department

outlines how it will manage transitional arrangements.

Article 33. Appeals in connection with consents

Section 3: In WCA 28(F)(3), a longer period is allowed for appeals, if agreed. In 28(F)(4), a hearing can be

called in preference to a public inquiry. Both changes to the Environment Order would be useful.

Article 34. Management Agreements

Section 1: It is necessary to include lessees and ‘owners/occupiers’ in relation to this Article.

This section refers only to ‘land included in an ASSI’ and ‘managed as (or part of) an ASSI’. This greatly

restricts the scope of management agreements for the purpose of conserving ASSIs. The Countryside and

Rights of Way (CroW) Act 2000 in England and Wales refers in addition to ‘any other land’. This means that

statutory nature conservation agencies can enter into management agreements with any owner/occupier

(even when they are outwith Sites of Special Scientific Interest (SSSIs)) for the purpose of securing the

conservation of SSSIs. Therefore, if a problem occurs outwith an SSSI, these bodies can attempt to reach an

agreement to address it. A change in the wording of the Environment Order is, therefore, necessary.

The definition of management agreement is vague: ‘for securing that his land is managed as an ASSI’. In

England and Wales, the Countryside Act 1968 states that the management agreement is for the purpose of

conserving those flora, fauna, geological or physiogeological (or for ASSIs, other features as well) where it

appears to Natural England and the Countryside Council for Wales to do so. A more comprehensive

definition in the Environment Order is essential.

Section 6: It remains unclear why the Department should be given the power to waive any condition

imposed by a management agreement which is inconsistent with the provisions of a development plan or

development order. Some clarification is required from the Department.

The Environment Order does not replicate any of the provisions of Section 28(J) of the WCA that relate to the

serving of management schemes. These are seen as an interim step between a negotiated approach to

positive management and the heavy hand of management orders. The Environment Order moves straight

from a management statement under Article 28(2) and the serving of a management order forcing an

owner/occupier to take action. We suggest the introduction of management schemes would be beneficial in

Northern Ireland.

Article 35. Management notices

This Article is acceptable if management schemes are not introduced.

Article 36. Appeals against management notices

Section 1: There are some additions to the appeals mechanism that are currently omitted:

a) Grounds for appeal can include the fact that another owner/occupier should do the work or pay for

it;

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b) That money should be paid to the owner/occupier in relation to carrying out the works; and

c) An ability to introduce regulations that set out the procedures for appeals.

We suggest the Department includes these in their amendments to the Environment Order.

Article 37. Payments by Department

Section 2: Under Section 28(M)(2) of the WCA, the statutory nature conservation agencies can make

payments to any owner/occupier of land over which a management scheme (not agreement) applies. This

means that these bodies have more flexibility when making payments, i.e. they do not have to be tied to

detailed management agreements.

Under Section 50 of the WCA, amended by CroW, the statutory nature conservation agencies may, in

relation to management agreements, make payments to anyone. They do not have to be owner/occupier of a

SSSI. This allows these bodies to make payments in relation to actions required outside SSSIs that are needed

in order to conserve an SSSI.

We believe it would be advantageous to introduce these provisions in the Environment Order to secure the

favourable condition of ASSIs.

Article 38. Public bodies: general duty

Section 3: The definition of ‘public body’ does not include reference to Minister of the Crown, persons

holding office, or any other public body of any description. This should be amended.

Article 39. Public bodies: duties in relation to operations

Section 7: There appears to be no reason why the Department should be excluded from these requirements

and therefore the wording should be changed.

Article 40. Public bodies: duties in relation to authorising operations

Article 39(6) should also apply to Article 40 (i.e. the requirements to minimise damage and restore damage

caused).

Article 41. Powers to acquire land

Section 1: The Department should consider whether it would be useful to allow the compulsory purchase of

rights associated with land (e.g. shooting or fishing rights) but not the land itself.

CroW inserted Section (15)(A) into the Countryside Act 1968, providing new powers in relation to Section 15

(management agreements for SSSIs). This allows the statutory nature conservation agencies to compulsory

purchase land that:

a) They are satisfied that they are unable to conclude on reasonable terms, a management agreement

b) They have entered into such an agreement but the agreement has been breached to the extent that

SSSI interest is being damaged.

This is different from Article 41(1) of the Environment Order in that management agreements can be

negotiated for any other land (i.e. not just SSSI) for the purposes of conserving SSSI interest. This allows the

statutory nature conservation agencies to compulsory purchase any land where this is necessary for the

conservation for SSSI.

We believe the Environment Order would benefit from the inclusion of similar wording.

Article 45. Power to make byelaws for ASSI

Section 2. The purposes for byelaws are far too restrictive in the Environment Order. For example, the

purposes of byelaws defined in S. 20(2) of the National Parks and Access to the Countryside Act (NPACA)

1949 are ‘without prejudice to the generality of the foregoing subsection’ which says byelaws may be made

for the protection of SSSIs. Subsections (b) and (c) of S. 19(2) of the Nature Conservation and Amenity Lands

Order (NCALO) 1985 in Northern Ireland are missing (these allow byelaws to prohibit the killing etc. of

living creatures and restricting shooting of birds, respectively). S. 20(2)(g) NPACA is also missing which

21

allows byelaws to apply to land adjoining to SSSIs with respect to the regulation of shooting. We would like

to see these included in the new Environment Order.

Section 6. We would like the Department to clarify the length of exclusions and enforcement mechanisms.

Article 49. Application of this Part to the Crown

Section 2. It remains unclear why Crown land is exempt from Articles 32‐37 of the Environment Order. This

is not the case elsewhere in the UK and we believe the exemption should be removed.

Article 50. Statutory charges

If this is the equivalent of a local land charge, then there must be a requirement to alter the local land charge

when the ASSI declaration is varied, i.e. does not just apply to Article 28(1).

Schedule 4. Transitional Provisions

There should be more disapplications of provisions introduced by the Environment Order, e.g. the

requirement to publish exiting declarations in newspapers.

Owner/occupiers still have the right to carry out activities beyond the statutory period of consent or if a

verbal response was given. We believe the Department should have powers to issue a stop notice which

prevents an owner/occupier from carrying out the activity where there is a belief that implementation is

imminent and likely to be damaging.

Article 34(1) does not apply to existing management agreements and this should be changed.

We suggest there should be a duty on the Department to issue guidance on the exercise of functions under

the Environment Order.

Forestry Act To ensure that international sustainable forest management commitments, as well as biodiversity

commitments, are now consistently underpinned by relevant forestry legislation across the UK, we suggest

that an amendment to the Forestry Act 1953 under the Wildlife Order reform is necessary, unless the former

is considered first. We suggest that the wording in the Wildlife Order should follow that in the 1985 WCA

(Amendment) Act, Section 4 which modified Forestry Commission’s statutory duties under the Section 1 of

the 1967 Forestry Act:

Forestry Act (Northern Ireland) 1953

An Act for the advancement of forestry and for purposes connected with that matter.

Responsibility of Ministry for forestry in Northern Ireland.

1. The Ministry of Agriculture (in this Act referred to as ʺthe Ministry ʺ) shall be responsible for promoting in

Northern Ireland the interests of forestry, the development of afforestation, the production and supply of

timber and the establishment and maintenance of adequate reserves of growing trees, and for those

purposes shall exercise the functions conferred on the Ministry by this Act.

At this point in Section 1 we propose the addition of a duty:

The Ministry in discharging their functions shall, so far as may be consistent with the proper discharge of

these functions, endeavour to achieve a reasonable balance between:

a) the development of afforestation, the management of forests and the production of timber, and

b) the conservation and enhancement of flora, fauna and geological or physiographical features of

special interest.

review of the wildlife (ni) order 1985 · wagtail, blue tit, waxwing and stonechat we do not...

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