Rural Affairs, Climate Change and Environment Committee

Meeting date: Tuesday, June 26, 2012

Official Report 413KB pdf

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“Code of Practice on Non-Native Species”

The next agenda item is evidence from the minister, with the same panel of officials, on the “Code of Practice on Non-Native Species”. Although the code is not legislation, it has been laid under the affirmative procedure, which means that Parliament must approve it. Following this evidence session, the committee will be invited to consider the motion to recommend approval of the code. I invite the minister to speak to the code of practice.

I am delighted to introduce the code of practice to the committee, as it marks a step change in the way in which Scotland deals with the threat of non-native species. The code and the changes to the law that it supports are designed to protect Scotland from further introductions of invasive species, whose current cost to the country is in excess of £250 million every year.

The code seeks to help individuals, businesses and public bodies to act responsibly when they deal with non-native species. We are not suggesting that all non-native species should be removed from Scotland, as that would be not only impossible but undesirable. We rely heavily on non-native species: they are our food crops, timber crops, livestock and the plants in our gardens. However, we must acknowledge that non-native species also include the signal crayfish, which is devastating lochs in Scotland, and Japanese knotweed, which is taking over our river banks, to name but two.

With the Wildlife and Natural Environment (Scotland) Act 2011, we have changed the way in which non-native species will be dealt with in Scotland by creating offences that align with what is commonly referred to as the precautionary approach to non-native species. That approach focuses on preventing the introduction of any non-native species, not just those that we know might be a problem elsewhere or even those that we might think will become a problem. We do that because, with many species, we simply cannot tell for sure whether they will be invasive. Japanese knotweed is a perfect example of that, as it took more than 100 years to become the problem that we have now.

In the 2011 act, we have created a set of powers that will allow us to control the most risky species. For example, if we find that the risk of escape of a certain exotic pet species is a real threat, we can prohibit or control the keeping or sale of the species. Alternatively, if we think that requiring a certain group of people to report sightings of a species would help Scotland’s response to its introduction, we can require them to make those reports.

All that means a change in what is expected of those who manage land or own animals and even those of us who have a passion for gardens. The code seeks to clarify what those expectations might be. It sets out what some of the terms that are used to frame the new offences mean. For example, it explains the term “native range”, which people would not have needed to think about previously, and outlines what kind of land is considered to be non-wild in relation to planting non-native plants. Non-wild land is land that is managed intensively and frequently enough that we could reasonably expect any non-native species that is planted there to be recognised and prevented from spreading. I am pleased that my garden will not require to be rethought.

The code also explains which activities are unlikely to be caught by the new offences. For example, in relation to the release of animals, it is clear that letting a dog off its lead does not count as a release, as that would be unreasonable when the person has every expectation of regaining control of the dog and taking it home with them. Similarly, falconry is not seen as releasing a bird of prey. In those situations, the person expects to retrieve the animal, so for the purposes of the act it is not considered to be released.

As the code seeks to provide advice to a wide range of people in differing circumstances, it cannot go into great detail on all the species or situations that people might need to consider. However, it outlines which organisations are responsible for which habitats and provides guidance for those who seek further advice.

In providing an outline of the new terms and concepts in the 2011 act, setting out the responsibilities of organisations such as SNH and providing sources of further advice, the code will be a valuable resource for those who own, manage or are otherwise responsible for non-native species, and particularly those whose activities might inadvertently be increasing the threat to Scotland from non-native species.

There is a telephone number that anyone who requires advice can call. It is 08452 30 20 50.

I am happy to answer any questions that the committee has on the code and the context in which it has been created, or members can pop out and phone the number right now.

Thank you, minister. I think that we have all carefully made a note of the 0845 number—

08452 30 20 50. [Laughter.]

Okay. I think that we have that, minister. Thank you. I understand that that is perhaps a parliamentary first, so I am glad that it happened at our committee.

We move on to a question-and-answer session on the code. A couple of members have indicated that they wish to ask questions.

Good morning, minister. I will put that number into my phone directly.

I welcome the code of practice, but what control do we have and what action can we take if we find that people have introduced something to the country? Specifically, I am looking at the information on species control agreements, which are commonly known as SCAs, and species control orders. The code of practice states:

“A Species Control Agreement ... is a voluntary agreement which may set out;

• what must be done

• by whom and

• by when

in order to control an invasive non-native plant or animal.

There is no penalty for non-compliance”.

Will you or Catherine Murdoch, with her long title, tell us what would happen to someone who introduced such a species and what action we could take to remedy that?

The first thing to grasp is that it is not forbidden to introduce non-native species to managed land. The second point is that there is a hierarchy of interventions and the species control agreement is the first of them. As the code of practice states, through the species control agreement, we seek to establish what must be done, by whom and by when in relation to an invasive non-native plant or animal. In the majority of cases, that should be sufficient to place a ring around it. However, we have further interventions, such as the orders that can be made. They are made not by the Parliament but by SNH—I am just checking that with my colleague to my left. Beyond that, the hierarchy goes all the way up to, eventually, criminal proceedings.

As this is inevitably an area in which there is potential for some complexity, we make information available and we have ways of interacting with people to help them to understand their role in preventing another Japanese knotweed. Paragraph 2.11 of the code of conduct includes a graph that shows that Japanese knotweed was not a problem from 1850, when it came here, to 1940, but that it then suddenly took off. Every single Japanese knotweed plant in these islands has exactly the same DNA, so it is perfectly possible that they all come from a single plant, although that is not known for certain. The effects of such things can be considerable, and they can be delayed and uncertain. Nobody thought that Japanese knotweed was going to be a problem when it was introduced, and the same can be true of other things.

I will make a small point, minister. In section 10 of the code, “Non-Native Species—Which Body is Responsible”, the paragraph on woodlands says:

“A partnership approach may be taken for some species”.

What protocols and arrangements are in place for interagency co-operation in such situations? We all know the difficulties that can arise at times. Who would take the lead? How would it happen in practice?

10:15

Let me say a couple of things to set the context on woodlands. In general terms, woodlands are not regarded as managed. They are of course managed in one sense but, for the purposes of the order, they are not regarded as managed. Therefore dealing with non-native species in the special case of woodlands is a bit different in that the non-native species that we may legally put on woodland are described in a specific list and there is a process by which that list can be extended if and when it is required. In relation to woodland, the environment is a bit different.

I chair the framework of responsibilities for public bodies and we have key representatives of each of the organisations, including Forestry Commission Scotland. Underpinning that is a protocol. There is also the 0845 number that the minister kindly gave. Someone who phones in is quickly directed to the lead organisation for a habitat. For woodlands, it is Forestry Commission Scotland.

Beyond that, SNH has an overarching co-ordinating function. We are very keen that nobody should be in any doubt when they phone the 0845 number. Backing that up is a protocol, and all the public bodies are working closely together on the basis of the SEARS—Scotland’s environmental and rural services—principles.

It is worth making the point that we recognise that there could be complexities for those who have to implement the code, which is why we have established a single point of contact. In other words, we will ensure that people are directed to the right source of advice, rather than people having to try to work it out and possibly being unsuccessful.

I will purposefully not broadcast that telephone number in my part of the world for fear that the lines might become overheated. I say that because of something that the minister mentioned in his introductory comments, which is the American signal crayfish. As he is aware, signal crayfish have become so well established in various parts of Scotland, particularly Loch Ken in my constituency, that many people would no longer consider them to be non-native. Frankly, the whole idea of control of that particular non-native species has become something of a joke because, to all intents and purposes, it cannot be controlled. I have met the minister and others on the issue and it is now generally accepted by bodies such as SNH that these things are here to stay.

The same could be said for Japanese knotweed—it is everywhere now. Once we reach that stage and a species has become so well established that it is effectively endemic, where do we go from there? Surely there is a point at which we can see that controls have not worked, that a species is here to stay and that we therefore have to look at the issue in a different light. In the case of the American signal crayfish, there is a strong case to be made for a properly controlled commercialisation of the species.

I am not making a plea for that at this point, but I am beginning to think that there are stages at which codes of practice and legislation—be it subordinate or primary legislation—are a waste of time when it comes to controlling these things.

I also wonder whether we are unwittingly making criminals of people. According to my notes, section 14ZC(1)(a) of the 1981 act

“makes it an offence for any person to keep, have in their personal possession or have under the person’s control any invasive animal”.

As I am sure everybody knows, American signal crayfish happily travel up to 2 miles overland at night from one watercourse to another or from one loch or pond to another. People may unwittingly have American signal crayfish on their property and therefore—I would imagine—legally under their control, but one is not allowed to touch them. Part of me wonders whether we have really thought this through properly. How do we address the situation before these things take over all of Scotland’s waterways, without wanting to get too melodramatic about it?

I have a couple of points in response. The American signal crayfish will be defined as non-native for ever. Indeed, rabbits are non-native, even though they have been here for 2,000 years. However, the substance of Mr Fergusson’s remarks is about the management of invasive species, which is the essential point. The real issue is that we have no plan that can eliminate species such as the American signal crayfish. We have tried such elimination and it has been tried south of the border, but it is unlikely to succeed.

Commercial exploitation of a non-native species has been tried south of the border, but it was not successful. There is a tension between trying to manage down the numbers of such species and the risk of commercial exploitation sustaining their populations. It is thought that commercial exploitation could lead to their further spread. Indeed, we can look back in time at issues that arose with mink, which we are probably on the verge of eliminating from the long island—Harris and Lewis. However, it has taken many years and a lot of money to do that. Commercial exploitation will not necessarily always be the way forward.

I am told that section 14ZC(1)(a) of the 1981 act refers only to lists in orders and that the American signal crayfish is already restricted. The fundamental point that exercised the member was signal crayfish from somewhere else being in waters that are within someone’s land. The member should be assured that, in terms of the code, someone is not in control of, or responsible for, crayfish simply because they happen to be within their land. However, we would hope that co-operating in trying to eliminate the crayfish would be part of the landowner’s duty. The responsibility for the crayfish, though, goes back to the person who introduced them, not to the person who is affected by their spread; to argue otherwise would be irrational. We might require that people report the presence of invasive species, but failure to do so is not a criminal activity—[Interruption.] Perhaps I am going to get a qualified view on that. Do you want to speak, Andy?

It would require a further order of the Parliament—of the minister, rather, to make it an offence. There is an enabling power in that regard that has not been exercised as yet.

Does that answer your question, Mr Fergusson?

No.

I do not expect to be able to satisfy Mr Fergusson in this regard, because it is clear that he quite properly wants the elimination of signal crayfish from his constituency or for it to become a commercial asset. However, I am not sure that either of those objectives can be readily delivered.

I take the minister’s point, but the crayfish affect more than just my constituency, to be fair, because they are now widespread in Scotland. My view on the issue is not purely driven by a commercial desire. When people report the presence of crayfish, the problem is that no action can be taken. I do not mean this as a criticism of SNH, but the only action at the moment is to hand out leaflets to fishermen asking them to clean their gear before they go home in order to try to limit the spread of something that is spreading like wildfire. My hackles are slightly raised by the passing of orders such as this one that, in effect, have no impact at all on the spread of an invasive species. I will leave it at that.

I draw the member’s attention to those involved in water sports. To make as many of them as possible aware of the problem, we launched a scheme last August—I think—called the check, clean, dry campaign. That encouraged people to purge their boats, jet-skis and so on of any species that they might have picked up at a location that they had been in before returning home or, at least, to ensure that they had removed any species. People do not require to know whether species are invasive; it is just good practice to do those things.

I have just been reminded that we have a rapid response protocol, which could result in action when something is found in a new catchment. However, I return to the point—of which the member is well aware—that we do not have a meaningful intervention that helps with American signal crayfish. Anyone who can identify such a measure that is short of destroying the entire environment in which the signal crayfish exists—massive options might do it—will have the heartfelt thanks of many people.

You might have partly answered my questions. Paragraph 2.21 of the code says that

“the release or planting, keeping and sale”

of non-native species

“are strict liability offences”

unless, as you said, it is clear that they are kept in what we would reckon to be a garden or a zoo. Species such as Rhododendron ponticum and Japanese knotweed are quite widespread and are on land that is not part of gardens. I declare an interest as a farmer and I look for reassurance that landowners and farmers who have rhododendrons or Japanese knotweed on their land will not be liable for that, as such plants have invaded their land.

I will make a distinction, which I made earlier, between managed land and wild land. If a species is on someone’s land, their duty is limited to preventing its spread. A farmer who has rhododendron—ditto Japanese knotweed—is not expected to take any action, although they could take action at their own hand. The farmer’s duty is to prevent the further spread.

It is worth looking at the next paragraph in the code. You are correct about strict liability, but the next paragraph says:

“However, a person accused of a release, planting or keeping offence may successfully establish a defence if they ... show that they took all reasonable steps and exercised ... due diligence to avoid committing the offence.”

As part of their normal husbandry, professional land managers such as farmers are likely to be able to establish such a defence, because they will not particularly wish Japanese knotweed or rhododendron to take space that could otherwise be occupied by productive farming. In practice, I do not expect that an issue is likely to arise for farmers or even that a dramatic change in practices will be needed.

The bottom line is preventing the spread; eradication is not being required. Of course, advice can be sought if a farmer wishes to undertake eradication.

I know from experience that Japanese knotweed is difficult to control. After several applications of glyphosate over several years, the plant can still spread.

Japanese knotweed spreads via the rhizome. Unless every part of the rhizome is removed, the plant will return. Of course, the rhizome can be deeply embedded and difficult to find.

Removal can cause more problems.

Indeed.

Applying glyphosate is the recognised method.

It is worth making the point that advice should be sought on disposing of what is dug up.

People must watch out next to watercourses in particular. If one little rhizome goes down the river, it will take root somewhere.

The member’s points are well made. The professional farmer has made an appropriate and useful contribution to the discussion.

I shall rest my case.

In addition to the 0845 number, perhaps Mr Hume would like to release his number.

I will give you my mobile number later. I will not repeat it now.

10:30

Good morning to you all.

I want to ask about the concerns that have been expressed to me in the South Scotland region about the spread of grey squirrels in relation to red squirrels. I know that the issue is a Scotland-wide one. Until now, I thought that the red squirrel was a native species, but rabbits have been here for a long time, and I am not quite sure why they are not a native species. Perhaps that is a side issue.

As the minister will know, there has been some success with the corridors in South Scotland, and there has been the decision to cull, of course. Is it possible for the committee to be given an update on that now or at some point in the future? Obviously, the red squirrel is iconic and very precious.

Indeed. I am happy to write to the committee on what we are doing on squirrels more generally. That would be appropriate.

The member is, of course, absolutely correct to point out that the grey squirrel is a non-native species. It carries squirrel pox, which is generally thought to be responsible for mortality in red squirrels.

We are having some success. There are isolated communities of grey squirrels in the vicinity of Aberdeen, for example, which we are having some success in dealing with, it appears, but in the south, it is often about trying to isolate the colonies. We are having some success in that, but I am happy to provide further information on the subject to the committee. I share the member’s interest in the matter.

My ears pricked up when the minister mentioned rhododendrons. I understand the context in which they were mentioned, but I am conscious that there are members of the public who, like me, are not farmers or managers of anything that resembles a large patch of ground, but merely of a wee area around a hoose. I happily plant things such as rhododendrons in that area because I can get them from the garden centre and quite like them. I am absolutely sure that what we are discussing has nothing to do with those of us who do that kind of thing, but those of us who go to garden centres would like some reassurance that we will not come back with something that leaves us liable.

You can continue to plant your rhododendrons in your managed land, which is your garden, but it is worth making a distinction on verges, for example. For this purpose, verges in townships are regarded as managed, but verges in wild areas are regarded as wild. Therefore, if your rhododendrons were to creep under the fence on to a verge in an urban area, for example, that would not constitute any difficulty, but people in rural areas might have to exercise a little care.

I return to the subject of my ability or the ability of anybody else to go to the local garden centre. Is there any mechanism for assuring me, as a general member of the public who does not know anything about gardening—actually, I know one thing about it: plants will either grow or they will not—that what I buy and use in a normal sense or plant in the normal way is okay? Do I have to worry that I might find an invasive species?

I will return to 08452 30 20 50, if you wish. Equally, there is a duty on the retailer of the plant concerned, of course. It is worth saying that none of what we are discussing really changes the position with regard to plants in any event. It all comes back to whether the area in which the planting is taking place is wild or non-wild.

With regard to the definition of native and non-native species, particularly in relation to animals such as domestic pets, is the list of what are considered to be native species much smaller than the list of non-native species? Will we perhaps have to reconsider the issue post 2014?

It is worth making the technical point that there is a third category, which is that of formerly native species. In other words, those are animals that used to be native but which have become extinct and which we might consider reintroducing or which might have been reintroduced. A rather obvious example of that is beavers, which have been reintroduced.

The bottom line is that domestic animals are under our control. Even with cats, which we do not normally think of as particularly susceptible to control, the expectation is that, if someone puts a cat out at night or during the day, the cat will return. Therefore, in the terms of the code, it is under our control. It depends on us for its food and water and so on. As well as the advice through the telephone number that I mentioned, there is further advice on the SNH website. Much of that advice has been put up in anticipation of the sort of discussion that we are having.

The bottom line is that we are taking the precautionary principle: if in doubt, do not release. It is as simple as that, whether we are talking about plants, animals, birds or whatever.

Does the minister agree that, given that domestic animals can stray, as cats often do—perhaps because the food that they get somewhere else is much more interesting than what they get at home—responsible ownership might move down the road of microchipping?

I will not rise to that particular bait, as that is a matter for another time. However, it is important to make a distinction. As Mr Robertson knows, animals that are non-native, such as dogs and cats, might be abandoned. In that case, there is deliberate intent to put them into the wild. That would not be covered by what I said earlier. The test is the intention of the person who has control of the animal. If the reasonable expectation is that the cat or dog or whatever will return to the owner—as when a dog is released in a park for a run—even if it does not do so, that does not create an offence. That is the test. There is lots of other legislation related to abandoning animals and animal cruelty.

I note that the minister does not want to rise to my other bait, which was about the situation post 2014, with reference to what is native and non-native.

What we are doing is distinctly Scottish. In fact, this might be the first time that such measures have been taken to such depth. The approach is already attracting interest from elsewhere.

What plans are there to review the operation of the code in due course and with what frequency will that be done?

In my comments on forestry, I referred to the potential for extending the list of trees that are non-native species but which might be planted on what is regarded, for the purposes of the code, as wild land. We intend to undertake a consultation on that subject within the next couple of years. Otherwise, we do not at present have a timetable for further consultation or review. However, we will take a close interest in the operation of the code. The code has to go through the affirmative procedure, so it would not be unduly onerous if we detected that it had to be changed or modified. Members should remember that the code does not create law, but merely explains the law and the duties that people have under the law, albeit that it is given force by being debated and, I hope, approved by the Parliament.

As members have no further questions, we move to consideration of motion S4M-03420. We have up to 90 minutes for the debate on the motion, which cannot involve the Government officials.

Motion moved,

That the Rural Affairs, Climate Change and Environment Committee recommends that the Code of Practice on Non-Native Species be approved.—[Stewart Stevenson.]

Motion agreed to.

I thank the minister and his officials. I suspend the meeting briefly to allow them to depart.

10:41 Meeting suspended.

10:42 On resuming—