EU invasive weed legislation – will Brexit make a difference?

A long time ago in a universe “far far away”… (pre-lockdown), we post a blog titled ‘New Legislation for Invasive Alien Species – What you need to know‘.  Then, last week we were finally able to notify you all about the much delayed publication of Defra’s Guidance regarding these regulations. These are the Invasive Alien Species (Permitting and Enforcement) Order 2019 (IAS) – the UK Governments implementation of the EU-wide requirements of the Invasive Alien Species Regulations (EU 1143/2014). But what exactly are we talking about here and will Brexit make a difference?

Current legislation will continue

The Guidance applies across England and Wales and we expect similar advice to appear in Scotland and Northern Ireland soon, albeit potentially with slightly different lists of ‘widely spread’ species. One interesting point to note first; it is made clear that Brexit on January 1st 2021 does not mean these rules/regulations stop. This and all such legislation will continue as ‘retained EU law’ until such time as there are specific new post-Brexit arrangements via Parliament (throughout the UK) – and this could take a long time!

We are aware that these Regulations can sometimes be difficult to put into perspective. They sit alongside the Wildlife & Countryside Act 1981 (WCA) which has many similar aims and objectives (lists of non-native alien plants with special status in law), so we felt it would be useful to tease-out the specific areas where there seems to be a difference; ones which could be quite significant as far as legal duties are concerned in a post Brexit world.

What does the WCA say about the spread of Schedule 9 plants?

Firstly, an area of some confusion within the sector is what the Wildlife & Countryside Act 1981 actually says about preventing the spread of ‘Schedule 9’ plants. This useful publication summarises the position i.e. it is not an offence to have the plants on your land as long as they are being ‘managed’ to prevent spread to the wild.

Consequently, it is only likely to be an offence if you fail to prevent them spreading off your land in a way that directly impacts on sensitive natural habitats rather than your neighbour’s garden. So, encroachment of Japanese knotweed for example in an otherwise urban environment is best assumed to be a purely civil matter (the recent case vs. Network Rail being a good example).

An offence or not an offence to plant the listed species?

What Defra says about the IAS Regulations is that for all the species listed they have a similar set of ‘rules’ but the difference is that for ALL those species listed (including Chilean rhubarb, Himalayan balsam and Giant hogweed) the clock is ticking because anyone planting these on their land (any time after the species was included in the IAS list) will be committing an offence. In reflection of this, there are correspondingly strict rules about making these plants available for sale etc.

For example, we know it is still possible to buy Gunnera manicata but, in theory, Gunnera tinctoria should not be available from nurseries at all. What are the implications of all this? Well, firstly you need to keep the IAS species list with the dates of entry (sometime between 2014 and 2019), then, if you come across any of those listed on your client’s property make sure you advise them accordingly.

Plenty of invasive species not formerly ‘on the horizon’ for UK invasive weed surveyors

The other interesting difference with the Wildlife & Countryside Act 1981 is the species list itself. There are quite a few species that haven’t formerly been ‘on the horizon’ for UK invasive weed surveyors – like Tree-of-heaven and Persian & Sosnowsky’s hogweed (quite difficult to tell apart from Giant hogweed) and we should maintain vigilance about these (and all the others although several are ‘not known’ in the UK except in herbariums)?

Don’t forget, if you want to keep any of the IAS plants as samples for research/training or education – you’ll need a licence!

Our advice is to remain vigilant

In the future, it seems inevitable that as and when the Government finds time to do so, the IAS Regulations and the ‘Enforcement and Permitting Order’ will be rolled into a streamlined/new version of the Wildlife & Countryside Act 1981 and some or all of the above idiosyncrasies will disappear.

In the meantime do try to remember them both…!

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