Asian hornet: pest-specific contingency plan

Annex C Legislation

Legislation Relevant to non-native invasive species in Scotland

EU Regulation (1143/2014) on the prevention and management of the introduction and spread of invasive alien species.

EU Regulation 1143/2014 was retained in Scots law under the European Union (Withdrawal) Act 2018 (“the Scottish Retained EU Regulation”). In Scotland, EU Regulation (1143/2014) was amended through the Invasive Non-native Species (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (“the 2020 Regulations) to ensure operability following the UK’s exit from the EU. It applies to Scotland only.

The Scottish Retained EU Regulation adopts the EU list of invasive species of Union concern as the Scottish list of species of special concern. These are species whose adverse impacts across Scotland are such that particular action is required in order to effectively prevent, minimise or mitigate those adverse impacts in a cost efficient manner. These species cannot be brought into Scotland, kept, bred, transported, placed on the market, used or exchanged, allowed to reproduce, be grown or cultivated, or released into the environment. However, there are some limited exceptions to these restrictions.

Permits and licences issued in Scotland

NatureScot can issue licences for releasing, keeping or transporting live Asian hornets in relation to an eradication measure under section 16(4)(c) of the Wildlife and Countryside Act 1981. A licence is not required for killing an Asian hornet, destroying a nest, keeping or transporting dead specimens.

Wildlife and Countryside Act 1981

The Wildlife and Countryside Act 1981 (Sections 14 to 14P) is the principal legislation dealing with non-native species in Scotland.

Section 14(1) of the Act makes it illegal to release, allow to escape from captivity, or otherwise cause an animal to be at a place outwith its native range.

It is a defence to an offence in section 14(1) if the accused can show that they took all reasonable steps and exercised all due diligence to avoid committing the offence. Offences under section 14 carry a maximum penalty of a £40,000 fine and/or 12 months imprisonment on summary conviction and an unlimited fine (i.e. whatever the court feels to be commensurate with the offence) and/or 5 years imprisonment on indictment.

Section 14AA creates offences for the contravention of the 2020 Regulations where such activities do not already constitute an offence under the WCA, (breeding, transporting, using or exchanging, and permitting to reproduce). A person who commits an offence under section 14AA is liable on summary conviction to imprisonment for a maximum term of 12 months or a fine of up to £40,000 (or both). On conviction on indictment a person would be liable to imprisonment for a term not exceeding 2 years or a statutory maximum fine.

Part 2 of Schedule 9B lists defences to a charge of committing an offence under section 14ZC, 14A or 14AA, of the WCA where the activity to which the charge relates contravenes the 2020 Regulations. Schedule 9B also contains provision for granting a licence (under section 16(4)(c) of the WCA) permitting an activity which contravenes the 2020 Regulations for the purpose of supporting an eradication or management measure.

Species control agreements and orders

Sections 14D to 14O of the WCA deal with species control orders. A species control agreement is a voluntary agreement between a relevant body and the owner or occupier of a premise(s) to control or eradicate invasive animals or plants outwith their native range. Section 14D enables a relevant body to make a species control order in respect of premises where it is satisfied of the presence of an invasive animal or plant at a place outwith its native range. The relevant body must first offer a species control agreement before it makes a species control order and it takes a minimum of 70 days before a species control order comes into force. Powers of entry related to species control agreements require that the authorised person gives one day’s notice before taking access, and 14 days’ notice to carry out work required under a species control order.

An emergency species control order may be made when the relevant body considers that action to control or eradicate an invasive non-native species is urgently necessary. The Act leaves it up to the relevant body’s discretion to decide what constitutes ‘urgently necessary’. An action can be described as urgently necessary, if delaying by 70 days would defeat the purpose of the action. For example, to prevent fertile queens leaving an Asian hornet nest and establishing new colonies elsewhere, the nest needs to be destroyed and the queens killed as soon as possible. An emergency species control order comes into effect once notice is given and remains in force for 49 days. The owner or occupier has 28 days to lodge an appeal. A sheriff may suspend the order pending an appeal.

Power of entry related to emergency species control agreements do not require notice to be given before taking access. These powers do not include access to dwelling or breaking a lock to gain access to lockfast premises without a warrant.

Further guidance is available on species control orders and emergency species control orders in Scotland in the Code of Practice on Non-Native Species .

Keeping and Release and Notification of specified invasive animals and plants

Section 14ZC of the WCA prohibits the keeping etc. of invasive animals or plants as the Scottish Ministers may specify by order. However, it is a defence to an offence in section 14ZC if the accused can show that they took all reasonable steps and exercised all due diligence to avoid committing the offence.

Part 2 of Schedule 1 of the Wildlife and Countryside Act 1981 (Keeping and Release and Notification Requirements) (Scotland) Order 2012 (as amended by the Wildlife and Countryside Act 1981 (Keeping and Release and Notification Requirements) (Scotland) Amendment Order 2019) specifies types of animals for which it is an offence for a person to keep, have in their possession or have under their control under section 14ZC(1)(a) of the WCA. Part 2 of Schedule 1 specifies types of invasive animals for which it is an offence for a person to keep, have in their possession or have under their control under section 14ZC(1)(b) of the WCA. This means that it is technically an offence to live-trap an Asian hornet or keep a live specimen for identification purposes.

A person found guilty of an offence under section 14ZC will be liable on summary conviction to a maximum of 12 months imprisonment and/or a fine not exceeding £40,000; and on conviction on indictment, to a maximum of 2 years imprisonment and/or an unlimited fine.

Section 14B gives Scottish Ministers the power to make provision (by order) about the notification of the presence of invasive animals or plants at any specified place outwith their native range where persons are, or become, aware of the presence of such animals or plants. It is an offence to fail to make such a notification without having a reasonable excuse. This offence carries a penalty on summary conviction of a fine not exceeding level 5 on the standard scale or a maximum of 6 months imprisonment.

Article 4 of the 2012 Order requires that an occupier of land must notify NatureScot without delay if they become aware of any invasive animal listed in Part 3 of Schedule 1. Asian hornet is not currently listed on the Schedule.

Enforcement Powers

Section 14L gives the relevant body powers to step in and carry out operations required under a species control order. Under an emergency species control order the relevant body is not required to provide notice before taking access to carry out work, but cannot reclaim the costs of the operation from the owner or occupier. A warrant should be obtained if entry to carry out work if access to the premises is likely to be refused, if the premises are unoccupied, or if access is to a dwelling is required to carry out the work.

The Bees Act 1980

The Bees Act 1980 (as amended) gives Scottish Ministers the powers prevent the introduction into, or spread within, Scotland of pests and diseases affecting bees. They include measures such as regulating the importation of bees and combs, bee products, hives, containers and other appliances and apparatus used in connection with the keeping or transporting of bees which has or may have been exposed to infection with any pest or disease specified by an Order. In Scotland, a number of orders have been made under the Bees Act 1980 including the Bee Diseases and Pests Control (Scotland) Order 2007 , the Bee Diseases and Pests Control (Scotland) Amendment Order 2011 and the Bee Diseases and Pests Control (Scotland) Amendment Order 2021. (For the avoidance of doubt, the Asian hornet is not a notifiable pest of bees and is not covered by any of the Orders under the Bees Act 1980).