Species Protection
Prohibition on the keeping, transport and sale or exchange, of Annex IV(a) specimens taken from the wild, except for those taken legally before the Directive was implemented.
24. Regulation 39(2) of the 1994 Habitats Regulations prohibits the keeping, transportation and sale of "European protected species" ( EPS) of wild animals. Currently, such species are defined in regulation 38 of those Regulations to mean any species of animal listed in Annex IV(a) to the Habitats Directive whose natural range includes any area in Great Britain and are listed in Schedule 2 of the 1994 Regulations. However, Article 12(2) of the Habitats Directive (which regulation 39(2) is intended to transpose), applies to all Annex IV(a) species, not just those naturally occurring in Great Britain (see the judgment in Case C-131/05, Commission v United Kingdom). Regulation 6 of the Habitats Regulations 2006 amends regulation 39(2) to apply the protection there to all Annex IV(a) animals.
25. Regulation 6 also revokes regulation 39(4) and replaces it with a new defence to the offence in regulation 39(2). Under the new provision, it will be a defence if the specimen was lawfully taken from the wild. "Lawfully" is defined (by new regulation 39(4A)) such that it will be a defence to show that the animal was taken from the wild outside the European Economic Community ( EEC) at any time, or it was lawfully taken from the wild before 10th June 1994 in the EEC. Consequently, the effect of this amendment is that it will become unlawful to keep, transport or sell specimens of Annex IV(a) animals which have been taken from the wild on or after 10 June 1994 except under an applicable licence or relevant defence. This is unless they were taken from the wild outside the EEC. We are considering whether it is appropriate to licence continued possession of those specimens legally taken or killed between 10 June 1994 and the date the Habitats Regulations 2006 come into force. This proposal must be considered in the light of the proposed changes to the licensing provisions in Regulation 44 detailed under paragraph 34. We welcome your views.
26. Regulation 6 also provides a further defence to the offence in regulation 39(2). This will be found in new regulation 39(4AA) and enables the defender to show that the specimen in question came from a population which is not protected under Annex IV(a) to the Habitats Directive. These populations will be listed in regulation 39(4AA) or in new schedule 2A to the Habitats Regulations (which is inserted by regulation 17 of the Habitats Regulations 2006). On the detail of this new schedule, we consider that all populations of houting (Coregonus oxyrhynchus) should be protected (and not just those found in certain sectors of the North Sea which is what Annex IV(a) of the Directive requires) which is why houting do not appear in the new schedule. In addition, we are considering an amendment that would protect all houting in Scotland (and not just those found in certain sectors of the North Sea) by making an addition to Schedule 2 of the Habitats Regulations (European Protected Species of Animals) in order to ensure an effective and practical implementation of the Directive. We welcome your views on these proposals.
27. Regulation 40 of the Habitats Regulations currently contains a number of exceptions from the species protection provisions in regulation 39. However, the judgment in Case C-6/04 stated that these exceptions do not satisfactorily reflect Article 16 of the Habitats Directive. This Article sets out the circumstances under which Member States can derogate from the provisions of Articles 12 to 15 of the Habitats Directive. On the basis of the judgment, it is proposed that these exceptions contained in Regulation 40(2) - (7) together with the similar provision for plants in regulation 43(4) are removed from the Habitats Regulations. Regulations 7 and 10 remove these provisions. The 2003 consultation proposed to retain some of these defences in a modified form.
28. It is further proposed to amend Regulation 40(1) of the Habitats Regulations. This provision details defences to Regulation 39 relating to actions taken under the Animal Health Act 1981 and section 39 of the Agriculture (Scotland) Act 1948. It is proposed to amend Regulation 40(1) to explicitly provide that orders or actions taken under these Acts in relation to EPS must meet the two pre-conditions in Article 16 of the Habitats Directive (i.e. that there is no satisfactory alternative and that the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range).
The Incidental Results Defences
29. With regard to the removal of the defences in regulations 40(2), 40(3)(a) and (b) and 40(5), the Scottish Executive is considering how best it could reflect them through the licensing system in regulation 44 of the Habitats Regulations.
30. The 'Incidental Results' defences have to be removed from regulations 40(3)(c) and 43(4). To minimise the impact of the removal of these defences for the offences contained within regulations 39(1)(b), 39 (1)(d) of deliberately disturbing an animal of an EPS or damaging or destroying a breeding site or resting place of an EPS, we propose to allow certain activities to continue for reasons of public interest under licence. It would be possible to licence certain activities that would result in the deliberate disturbance of an EPS animal or destruction of a breeding site provided this did not cause the disturbance of the species in general (e.g. by reducing survival chances, breeding success or reproductive ability). The impact resulting from the removal of the incidental defence from Regulation 43(4) is also being considered in this manner in relation to the offence under Regulation 43(1). We welcome your views on these approaches and whether other approaches should also be considered to ensure these changes are clearly and easily understood and comply with the provisions of the Habitats Directive.
31. To add clarification to this area of law, the European Commission is to produce guidance on the operation of Article 12 of the Habitats Directive.
32. It is also necessary to consider how EPS are protected under the Wildlife and Countryside Act 1981 (" WCA"). Accordingly, the aim is to provide greater consistency across the legislation which protects EPS. Currently, we have no strong preference as to how this is to be achieved but are considering three options.
i. The first option being considered would require amending the defence and licensing provisions of the WCA. This Act contains defences which are equivalent to those within the Habitats Regulations which are being removed as detailed above. Because we wish to maintain these defences with regard to non- EPS, it is proposed under this option to remove these defences currently in Part 1 of the Wildlife and Countryside Act 1981 for where an offence is committed in relation to a EPS animal or plant. This option would also require amendments to the licensing provisions in section 16 of the WCA to permit WCA licences to be issued (where an EPS is involved) for similar reasons to those in the Habitats Regulations (including the new reason to be provided for under the amendment made by regulation 1).
ii. A second option is to remove EPS from the provisions of the WCA. The result of this option would mean that the protection of EPS is entirely provided for by the Habitats Regulations.
iii. However, there are benefits in continuing to list EPS under Schedule 6 of the WCA and so a third option would be to remove the EPS from Schedule 5 of the WCA, but not Schedule 6. This option would mean that EPS would still receive the protection awarded under Schedule 6 in relation to the prohibition on certain methods of killing but the offences in relation to killing, taking, trade, and possession would be solely dealt with under the Habitats Regulations.
We welcome your views on these proposed amendments to the WCA and also welcome alternative suggestions.
Indiscriminate Capture and Killing
33. Regulation 41(3) to (5) of the Habitats Regulations lists all those indiscriminate means of capture and killing which fall within Article 15(a) and (b) of, and Annex VI to, the Habitats Directive. However, in Case C-6/04, the ECJ decided that Article 15 of the Habitats Directive had not been transposed correctly since regulation 43 does not include a general prohibition on all indiscriminate means of capture or killing of the wild fauna concerned. Consequently, regulation 9 introduces an amendment to ensure improved transposition of Article 15 of the Directive, by inserting a provision providing a general prohibition on the use of indiscriminate means of capture and killing against species listed in Annex V to the Directive (and Schedule 3 to the Habitats Regulations). This differs slightly from the approach of the 2003 consultation which looked to introduce a statutory duty to review from time to time, the list of prohibited means and modes of transport.
Prohibition on the keeping, transport and sale or exchange, of Annex IV (b) specimens taken from the wild, except for those taken legally before the Directive was implemented.
34. Regulation 43(2) of the Habitats Regulations regulates the keeping, transportation and sale of plants of EPS. This term is currently defined in regulation 42 to mean the species of plant listed in Annex IV(b) to the Habitats Directive whose natural range includes any area in Great Britain. Such species are currently listed in Schedule 4 of the Habitats Regulations. However, Article 13(1)(b), which regulation 43(2) transposes, applies to all Annex IV(b) species, not just those naturally occurring in Great Britain (see the judgment in Case C-131/05, Commission v United Kingdom). Regulation 10 amends regulation 43(2) to apply the protection there to all Annex IV(b) species of plants.
35. Regulation 10 also revokes the incidental result defence contained within regulation 43(4) and replaces it with a new defence to the offence in regulation 43(2). This defence is that the plant, or the plant from which the part or thing in question is derived, was lawfully taken in the wild. "Lawfully" is defined in such a way (by new regulation 43(5)) that it will be a defence to show that the plant was picked outside the European Economic Community or lawfully picked within the EEC before 10th June 1994. An effect of the amendments here is that it will become unlawful (in the absence of a licence) to keep specimens of Annex IV(b) plants which had been taken in the wild on or after 10 June 1994, unless they were taken outside the EEC. We are considering whether it is appropriate to licence continued possession of specimens of plants already taken in the wild. We would welcome your views, and specifically if the term "wild plant" requires definition to ensure domestically or commercially cultivated varieties of these plants are excluded.
36. Regulation 11 amends regulation 44 so that the purposes for granting licences under regulation 44 more fully reflect Article 16 of the Habitats Directive - in particular Article 16(1)(e). Under this proposal, a power will be created to grant licences to permit, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of wild animals or wild plants in limited numbers. Regulation 12 sets out specific conditions which licences issued under the new power must contain. We welcome your views on the creation of the new licensing power and whether the conditions applied to such licences are appropriate.
37. We propose to introduce a new offence of contravening or failing to comply with any condition imposed on the grant of a licence issued under regulation 44. We propose that a person found guilty of the offence is to be liable for a fine not exceeding level 5 on the standard scale (currently £5,000). This offence was not included in the previous consultation. We welcome your views on introducing this new offence and associated fine.