This Memorandum refers to the Wildlife and Natural Environment Bill as amended at further consideration stage in the Northern Ireland Assembly on 7 February 2011 (Bill 5/09)
WILDLIFE AND NATURAL ENVIRONMENT BILL
EXPLANATORY AND FINANCIAL MEMORANDUM
INTRODUCTION
1. This Explanatory and Financial Memorandum has been prepared by the Department of the Environment (“the Department”) in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.
2. The Memorandum needs to be read in conjunction with the Bill. It is not, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause or schedule does not seem to require an explanation or comment, none is given.
BACKGROUND AND POLICY OBJECTIVES
3. The Bill introduces new provisions and amends the Wildlife (Northern Ireland) Order 1985 No. 171 (N.I.2) (‘the Wildlife Order’) in order to reflect the increasing significance of protecting Northern Ireland’s biodiversity and the need to continue to deter wildlife crime.
4. The deregulation of existing systems that require anyone who hunts or trades game species to be licensed is also provided for in the Bill. This will mean the repeal of provisions contained in the Miscellaneous Transferred Excise Duties Act (NI) 1972 (c.11) and the Game Act 1831 (c.32) and amendments to the Game Preservation Act (NI) 1928 (c.25).
5. An opportunity is also taken to amend the Environment (Northern Ireland) Order 2002 No. 171 (N.I.2) (‘the Environment Order’) in order to strengthen the regulatory regime for protecting Areas of Special Scientific Interest in Northern Ireland.
CONSULTATION
6. The Department conducted a public consultation process between February and July 2008. Approximately 80 responses were received and were broadly supportive of the policy changes proposed.
OPTIONS CONSIDERED
7. Three options were considered in relation to the Wildlife Order, namely:
Option 1 - Do nothing.
Option 2 - Update the Schedules to the Wildlife Order by subordinate legislation and rely on an education and awareness strategy regarding protection of wildlife.
Option 3 - Amend the Wildlife Order and its Schedules.
8. Options 1 and 2 were discounted because it was considered that the legislation was out of date in a number of important areas in comparison to equivalent legislation in the rest of the United Kingdom and that there was a need to ensure that the legislation continued to offer an adequate level of protection to Northern Ireland’s valuable wildlife and to demonstrate government’s commitment to conserving biodiversity.
9. With regard to reform of the game licensing systems two options were considered i.e. do nothing or reform the existing systems. It was considered that the licensing systems, which date back to the 19 th century and have remained unchanged since then, were archaic and no longer served any useful purpose, therefore it was considered there was a compelling case for reform.
OVERVIEW
10. The Bill consists of 42 Clauses and 3 Schedules. Clauses 1 to 3 and 38 are new statutory provisions. Clauses 4 to 28 relate to amendments to the Wildlife (Northern Ireland) Order 1985. Clauses 29 to 34 relate to amendments to the Environment (Northern Ireland) Order 2002, while clauses 35 to 37 relate to changes to provisions contained in the Miscellaneous Transferred Excise Duties Act (Northern Ireland) 1972, the Game Act 1831, the Game Preservation Act (Northern Ireland) 1928 and the Wildlife (Northern Ireland) Order 1985 relating to game species.
COMMENTARY ON CLAUSES
Clause 1 - Duty to conserve biodiversity
This clause introduces a new statutory duty upon government departments and public bodies to further the conservation of biodiversity so far as is consistent with the proper exercise of their functions. This supplements the commitment to protecting and enhancing biodiversity contained in the Northern Ireland Sustainable Development Strategy and aims to raise the profile and visibility of biodiversity as a natural part of decision-making in the public sector. In fulfilling this duty the public authorities are expected to also have regard to the principles and actions contained in the Northern Ireland Biodiversity Strategy.
Clause 2 - The Biodiversity Strategy
This clause places a duty on the Department of the Environment to designate and publish a strategy for the conservation of biodiversity. Northern Ireland’s first Biodiversity Strategy was published in October 2000 and this will underpin that and future strategies. There is provision requiring the Department to publish reports about implementation of the strategy at least once every 5 years.
Clause 3 - Biodiversity lists
This clause requires the Department of the Environment to publish lists of animal and plant species, and of habitats, which are considered to be of particular priority for conservation attention in Northern Ireland. These lists will be reviewed periodically and revisions published.
There is a particular onus placed on public bodies to take steps to further the conservation of such priority species and habitats, and to promote others to take such action.
Clause 4 - Protection of nests of certain birds
This clause introduces new statutory protection for the nests of particular birds all year round. Certain bird species return to the same nest year after year, so it is important that those nests are not destroyed. The nests of the Golden Eagle, the White-tailed Eagle, the Osprey, the Peregrine, the Red Kite and the Barn Owl will be subject to such protection.
An offence is created for anyone who damages or destroys the nest of these birds at any time of the year.
Clause 5 - Offences – recklessness
This clause amends a number of existing offences within the Wildlife Order which will mean that action which, when carried out recklessly, causes harm to wildlife, will be treated in the same way as action carried out intentionally to cause such harm. This will apply to the protection of wild birds, their nests and eggs, the protection of certain wild animals, the protection of wild plants and activities conducted within wildlife refuges.
Clause 6 - Offences – causing or permitting unlawful acts
The Wildlife Order makes certain acts which cause harm to wild birds, animals and plants unlawful. This clause will mean that anyone who knowingly causes or allows someone else to carry out those acts will be committing an offence.
This will also apply to the unlawful introduction of ‘non native’ animal or plant species.
Clause 7 - Defences in relation to offences under Article 4
Under Article 4 of the Wildlife Order a person shall not be guilty of an offence against wild birds if he shows that his action was not in contravention of the ‘relevant provisions’. Those relevant provisions are amended so it will be an offence for anyone in Northern Ireland to be in possession of wild birds or their eggs taken illegally in any Member State of the European Union.
The clause will also amend those defences under Article 5(6) of the Wildlife Order, whereby an ‘authorised person’ (an owner or occupier) is entitled to rely on certain defences if he has taken action that has caused harm to wild birds, their nests or eggs. This clause means that in future it will be necessary for such persons, if they are to continue to rely on the defences provided, to show that there was no other satisfactory solution to their action or, in circumstances where they knew before hand that the action would be necessary, that they had applied to the Department for a licence.
Clause 8 - Disqualification for registration
This clause will disqualify anyone who is convicted of an offence under the Control of Trade in Endangered Species (Enforcement) Regulations 1997 or the provisions within the Conservation (Natural Habitats, etc) Regulations (Northern Ireland) 1995 concerning the protection of species, from applying for or retaining a registration from the Department (for the purposes of taxidermy, for example) within 5 years of such a conviction.
Clause 9 - Protection of certain wild animals from disturbanceThis clause creates a new offence for anyone to intentionally or recklessly disturb a basking shark, or a common or grey seal.
Clause 10 - Snares
Snares are an important means of controlling ‘pest species’ in the countryside but they need to be used with care to avoid unnecessary suffering. This clause aims to strengthen controls over their use. The use of self locking snares, which by their nature do cause suffering, is outlawed, as is the possession of this type of snare, unless there is a reasonable excuse.
It will be an offence for anyone to set or otherwise use any other form of snare that is calculated to cause unnecessary suffering to any wild animal.
Anyone who sets a snare will be required to have it inspected at least once every day and release or remove any animal found caught during the inspection. Failure to fufill either requirement will be an offence.
Any person who, without reasonable excuse, is in possession of or sets a snare on anyone else’s land without their authorisation, will be committing an offence.
The Department will have a power to introduce, by way of an Order, certain requirements as the Department may consider appropriate upon anyone who uses a snare and it will be an offence not to comply with such requirements.
Clause 11 - Spring Traps
This clause regulates the use of spring traps to capture wild animals, other than wild animals included in Schedule 6 to the Wildlife Order, by making it an offence for anyone to use, sell or have in their possession any trap other than a trap of a type authorised by the Department. Authorised traps will be established by way of an Order made by the Department.
The use of ‘unauthorised’ spring traps may be permitted for research purposes but only under the authority of a licence issued by the Department.
Clause 12 - Protection of wild plants
The purpose of this clause is to clarify that the offence of intentionally picking, removing, uprooting or destroying a protected wild plant also applies to its seeds or spores. It also clarifies that any reference in the Wildlife Order to a plant which is growing includes a reference to a bulb, corm or rhizome; and that ‘wild plant’ includes fungi.
Clause 13 - Introduction of new species
Article 15 of the Wildlife Order is concerned with controlling the introduction of non-native invasive species. This clause applies those controls to hybrids of such species. Provision is included to give the Department a discretionary power to issue guidance (or approve guidance issued by others) for the purpose of controlling the introduction of such invasive species. Such guidance will be essential in promoting awareness among relevant sectors to the risks posed by the introduction of such species and will be available as evidence for the courts in any relevant proceedings.
Clause 14 - Prohibition on sale, etc of invasive, non-native species
This clause gives the Department a power to make an Order that can prohibit anyone from selling any animal or plant species to which Article 15 of the Wildlife Order applies, which is specified in the Order. This will be an important means of preventing the entry into Northern Ireland of species that are considered to be of high risk. Anyone who does not comply with the provisions of such an Order or anyone who causes or permits such non-compliance, will be guilty of an offence unless they can show they took all reasonable steps and exercised due diligence to avoid committing an offence.
Clause 15 – Possession of pesticides harmful to wildlife
This clause creates an offence for anyone to be in possession of certain pesticides that the Department may prescribe by Order. A person will not be guilty of an offence if the person can show that the possession of the pesticide was for lawful purposes.
Clause 16 - Licences under Article 18
Article 18 of the Wildlife Order permits activities that would otherwise constitute an offence to be carried out for particular purposes under licence. This clause amends those provisions and will permit licensed activity for additional purposes i.e. for research; for the re-population of an area or re-introduction into an area of wild birds; for conserving animals, wild birds or plant life; or for the protection of inland waters.
The Department will be required to be satisfied, before it issues licences allowing any activity that will affect wild birds, or their nests or eggs, that there is no other satisfactory solution and that licences issued for certain purposes are only issued on a selective basis and in respect of small numbers of birds. Any licence which permits the killing of wild birds will be required to specify certain conditions.
There is provision for the Department to issue licences to permit, for the purpose of development, the disturbance or destruction of any structure a protected animal uses for shelter or protection. Typically this would apply to badger setts.
Clause 17 - Shooting of certain deer
This clause will permit the shooting of certain species of deer, namely muntjac deer and Chinese water deer, with smaller calibre firearms and ammunition that otherwise would be unlawful. Due to their diminutive stature, the use of smaller calibre weapons would allow a more humane form of dispatch.
Clause 18 - Licences relating to deer
Clauses 18 is concerned with the management of the wild deer population in Northern Ireland and is intended to mitigate the impacts from deer in certain circumstances by giving the Department broader powers to issue licences to kill, injure or take any (fallow, red or sika) deer during the close season. It will allow licenses to be issued for the purposes of preserving public health or safety, conserving the natural heritage or preventing serious damage to property. Before granting such licences, the Department will be required to be satisfied about a number of matters in order to ensure that that there is no other satisfactory solution and that the reasons for the application for licence are given due consideration. Licenses will need to state a number of requirements.
An applicant for a licence is required to have a right of entry onto the land to which the application applies.
Clause 19 - Offences: possession of articles for purposes of committing offences
This clause will make it an offence for anyone to be in possession of any article that is to be used for committing an offence under the Wildlife Order, for example, persons with spades and dogs in the pursuit of badger baiting.
Clause 20 - Enforcement
Clause 21 - Powers of constable in connection with samples
The police play an important role in enforcing the provisions for the Wildlife Order and it is important that they have sufficient powers to do so. Clauses 20 and 21 enhance the powers available to the police in a number of ways.
Clause 20 replicates existing controls while enhancing the stop and search powers available to police officers where they believe that they will obtain evidence of an offence. There is provision for entry to premises under the authority of warrant issued by a lay magistrate to investigate any offence under Parts 2 and 3 of the Wildlife Order.
Provision also permits a police officer who enters upon any land to be accompanied by other persons and to take any equipment or other material onto that land, and to take samples of anything found on that land and remove them.
Controls are included i.e. a police officer must produce his authority, if requested, and there is a duty upon any officer entering the land to leave it in the same secure manner as when it was entered.
The ability to obtain evidence of the commission of offences by taking samples from specimens, whether alive or dead or their derivatives, has become increasingly important, for example, to prove the identity or ancestry of a bird or animal. Clause 21 gives police officers powers to take samples from specimens found by them in the exercise of their duties where it is suspected that an offence may have been committed. There is provision to require the person who has possession of the specimen to assist the sampling process. Any failure to do so is an offence.
Controls require that only a veterinary surgeon can take a sample from a live bird or animal and that a person taking a sample must be reasonably satisfied that no harm will be caused to the specimen concerned.
Clause 22 - Enforcement: wildlife inspectors
Clause 22 strengthens the powers available to the Department’s Wildlife Inspectors.
It gives powers of entry to investigate whether certain offences involving wildlife have been committed, but this does not permit entry to a dwelling house. Power of entry to any premises including a dwelling house is permitted in order to facilitate the processing of applications for licences and to check for on-going compliance with licence conditions. A wildlife inspector may be accompanied by a veterinary surgeon if it is believed such a person will be needed for the purpose of taking samples. A wildlife inspector must produce evidence of his authority, if asked to do so.
It is an offence for any person to impersonate a wildlife inspector or to obstruct a wild inspector undertaking inspections.
There is provision to give wildlife inspectors powers to take samples, similar to the powers available to the police under clause 21. The same controls also apply.
Clause 23 - Time limit for prosecution of summary offences
This clause makes the time limit for bringing court proceedings for all offences under the Wildlife Order the same i.e. 6 months, beginning from the date on which sufficient evidence to justify a prosecution is known to the Department. This does not apply to any offence committed before the provision comes into operation.
Clause 24 - Penalties
The maximum level of penalty for the majority of offences under the Wildlife Order is made the same. Provision is made to give the courts the power to impose custodial sentences up to a maximum of 6 months, except for some lesser offences.
Greater penalties apply to offences in connection with unlawful activity relating to the release, spread or sale of non-native invasive species.
The revised penalties do not apply to any offence committed before the provision comes into operation
Clause 25 - Application to the Crown
This clause applies the provisions of Parts 2 and 3 of the Wildlife Order, and any Regulations or Orders made under those parts, to the Crown. A court may declare any contravention of the requirements of those parts unlawful.
Clause 26 - Review of Schedules to the Wildlife Order
Schedules 1 to 8 to the Wildlife Order list certain species of bird, animal and plant which receive particular protection due to their conservation status and it is important that the level of protection remains appropriate. This clause places a duty on the Department to review those Schedules, together with new Schedule A1, every 5 years.
Clause 27 - Amendments to Schedules 1 to 9 of the Wildlife Order
This clause gives effect to Schedule 1 which amends the lists of bird, animal and plant species contained in Schedules 1 and 2, and 4 to 9 to the Wildlife Order.
Clause 28 - Reduction in close seasons for female deer
The close season for female deer, which gives protection from taking and killing, is shortened and changed to begin on 1 st April each year.
Clause 29 - Management agreements
The clause amends Article 43(1) of the Environment Order (NI) 2002 by extending the powers available to the Department to enter into voluntary management agreements with the owners of land outside Areas of Special Scientific Interest in Northern Ireland (ASSIs) for the purpose of conserving the protected features of an ASSI.
Clause 30 – Public body: duties in relation to authorising operationsThis clause places an obligation on public bodies, when granting consent to someone to carry out an operation, to require that the operation is carried out in such a way so as to minimise any possible damage to the designated features of an ASSI or require the operator to take reasonable action to restore the ASSI to its former condition where damage does occur.
Clause 31 - Offences in connection with ASSI
This clause introduces two new offences in relation to measures for protecting ASSIs. Public bodies, when authorising or permitting anyone to undertake an operation which may damage any of the features of an ASSI, are under an obligation to inform the Department of the Environment before hand and, where appropriate, how it has taken into account any advice received from the Department before permitting an operation. Any public body which fails to do so will be committing an offence. Provision is made for defences, for example, where the operation was required in an emergency.
A new third party offence is committed by anyone who intentionally or recklessly damages any feature of an ASSI. Unlike an existing offence, it is not a defence to claim that the person committing the damage did not know it was occurring within an ASSI. Hence, a lesser penalty applies.
Clause 32 - Notification of change of owner or occupier
This clause places a requirement on the owners of land within an ASSI to notify the Department of change of ownership or occupation of the land. The notification should include details of the date of change and the new owner or occupier.
Failure to comply with the obligation will be an offence.
Clause 33 - Notices and signs relating to ASSIs
Provision gives the Department power to erect notices and signs on land within ASSIs. Signs are an important means of providing information and increasing awareness of ASSIs and the intrinsic value of their features.
Anyone who damages, destroys or removes such notices or signs will commit an offence.
Clause 34 - Effect of failure to serve certain notices in connection with ASSI
When designating ASSIs or issuing other notifications affecting ASSIs, the Department will make every effort to inform all owners of land within the ASSI, but sometimes this is not possible This clause will mean that those declarations and notices will not be invalidated in the event that an owner has not been identified.
Clause 35 - Abolition of game licences and game dealers licences
This clause revokes existing systems that require anyone who hunts game species or deals in game species to be licensed. These systems, which date back to the 19 th century, are now considered archaic and do not serve any useful purpose, and were identified for deregulation. As a consequence, the Miscellaneous Transferred Excise Duties Act (Northern Ireland) 1972 is repealed.
Clause 36 - Sale of game
The intention of this clause is also deregulatory in nature and removes existing provisions contained in the Game Act 1831, the Game Preservation Act (Northern Ireland) 1928 and the Wildlife Order that restrict the trade of game including deer to certain times of the year. Such restrictions are no longer considered necessary given modern refrigeration facilities and food safety standards. As a consequence, provision that requires the conspicuous marking of packages which contain game when in transit is also removed.
There is provision to make it an offence to sell any game which that person knows or believes has been taken or killed unlawfully.
Clause 37 - Special protection for game
This clause gives the Department a power to give, by way of an Order, special protection to any game bird during the hunting season for a period up to a maximum of 14 days. This power will allow such protection during extended periods of extreme cold weather.
The clause also provides for Special Protection Orders made under Section 7C of the Game Preservation Act 1928 to prohibit anyone from possessing any game species mentioned in that Order.
Clause 38 - Hare coursing
This clause prohibits hare coursing. It will be an offence for anyone to participate in, attend or knowingly facilitate a hare coursing event or permit his land to be used for the purposes of such an event. It will also be an offence for any person to enter or permit a dog to be entered for a hare coursing event, or for any person to control or handle a dog in the course of or for the purposes of a hare coursing event. Additionally, anyone who nets, transports or holds hares for the purpose of a hare coursing event, will also be committing an offence.
A hare coursing event is defined as a competition in which the skill of dogs in hunting hares is assessed.
Any person guilty of an offence relating to hare coursing will be liable on summary conviction to a fine up to a maximum of the standard scale.
Clause 39 - Minor and consequential amendments and repeals
This clause provides that the minor and consequential amendments and repeals set out in the Schedules 2 and 3 to the Act will have effect.
Clause 40 - Commencement
Provisions of the Act will be brought into operation on such day or days as the Department may appoint, by Order, which may contain any transitional or saving provisions which the Department considers appropriate.
Clause 41 - Interpretation
This clause defines certain terms used.
Clause 42 – Short title
This clause cites the title of the Act. This is the title by which the Act will be known.
Schedule 1 - Amendments to Schedules to the Wildlife Order
The Schedule amends Schedules 1 and 4 to 9 of the Wildlife Order with additions and deletions.
Schedule 2 - Amendments
The Schedule contains consequential amendments to the Game Preservation Act (Northern Ireland) 1928 and the Wildlife (Northern Ireland) Order 1985.
Schedule 3 - Repeals
Part 1 of the Schedule repeals certain provisions contained in the Wildlife (Northern Ireland) Order 1985, the Police and Criminal Evidence (Northern Ireland) Order 1989 and the Police and Criminal Evidence (Amendment) (Northern Ireland) Order 2007.
Part 2 repeals the Game Act 1831 and the Miscellaneous Transferred Excise Duties Act (Northern Ireland) 1972, and certain provisions contained in the Game Preservation Act (Northern Ireland) 1928, the Game Preservation (Amendment) Act (Northern Ireland) 2002, the Criminal Justice (Northern Ireland) Order 1980, the Magistrates’ Courts (Northern Ireland) Order 1981, the Wildlife (Northern Ireland) Order 1985 and the Forestry Act (Northern Ireland) 2009.
Part 3 repeals references to hare coursing contained in a number of different statutes as a consequence of the introduction of a ban on hare coursing.
FINANCIAL EFFECTS OF THE BILL
11. The Department does not consider that the Bill will place any additional financial burden on the public purse, nor on the general public.
HUMAN RIGHTS ISSUES
12. The provisions of the Bill are considered compatible with the Human Rights Act 1998.
EQUALITY IMPACT ASSESSMENT
13. Under the terms of section 75 of the Northern Ireland Act 1998, the Department carried out screening for equality impact and is satisfied that the provisions in the Bill will not lead to discriminatory or negative differential impact on any of the section 75 groups
SUMMARY OF THE REGULATORY IMPACT ASSESSMENT
14. The Bill has been assessed to determine any regulatory impact and it is considered that it does not contain any provisions that will result in an increased or adverse impact on businesses, charities or on the community and voluntary sectors. However, it is noted that the removal of the systems that require anyone who hunts game or trade in game, and the removal of current restrictions which dictate the time of year when game can be sold, are deregulatory by nature.
LEGISLATIVE COMPETENCE
15. The Minister of the Environment had made the following statement under section 9 of the Northern Ireland Act 1998:
“In my view the Wildlife and Natural Environment Bill would be within the legislative competence of the Northern Ireland Assembly.”
SECRETARY OF STATE CONSENT
16. A statement is required under section 10(3)(b) of the Northern Ireland Act 1998, on Secretary of State’s consent:
"The Secretary of State had consented under section 10(3)(b) of the Northern Ireland Act 1998 to the Assembly considering this Bill."