(54) In regulation 85E(52) as it has effect in Scotland, after “European site” insert “or a European offshore marine site”.

(55) After Part IV (adaptation of planning and other controls), insert Part IVA as set out in Schedule 1.

(56) In regulation 89 (payments under certain agreements offered by authorities), in paragraph (2)(a), omit the words “the Minister of Agriculture, Fisheries and Food and”.

(57) In regulation 101 (enforcement)—

(a) in paragraph (2)—

(i) after “is committing” insert “or has committed”; and

(ii) for “enter any land other than a dwelling-house” substitute “enter any premises other than a dwelling”;

(b) after paragraph (2) insert the following paragraph—

“(2A) A constable may, for the purpose of assisting him in exercising the powers conferred by paragraphs (1)(b) and (c) when he has entered any premises under paragraph (2), take with him—

(a) any other person; and

(b) any equipment or materials.”; and

(c) in paragraph (3)—

(i) for “regulation 39, 41, or 43” substitute “Part III of these Regulations”; and

(ii) omit “(with or without other persons)”.

(58) After regulation 101(53) (enforcement) insert the following regulations—

“Constables’ powers in connection with samples

101A.—(1) A constable who suspects with reasonable cause that a specimen found by him in the exercise of powers conferred by regulation 101 is one in respect of which an offence under Part III of these Regulations is being or has been committed may require a sample to be taken from the specimen.

(2) A constable who suspects with reasonable cause that an offence under Part III of these Regulations is being or has been committed in respect of any specimen (“the relevant specimen”) may require any person to make available for the taking of a sample any other specimen in that person’s possession or control which—

(a) is alleged to be, or

(b) the constable suspects with reasonable cause to be,

a specimen a sample from which will tend to establish the identity or ancestry of the relevant specimen.

(3) Where a sample from a live animal or plant is to be taken pursuant to a requirement under this regulation, any person who has possession or control of the animal or plant must give the person taking the sample such assistance as he may reasonably require for that purpose.

(4) This regulation is subject to regulation 101G (restrictions on taking samples).

(5) In this regulation and regulations 101B, 101E and 101G “specimen” means any animal or plant, or any part of, or anything derived from, an animal or plant.

Offences in connection with constables’ powers to take samples

101B.—(1) A person commits an offence if, without reasonable excuse, he fails—

(a) to make available any specimen in accordance with a requirement under regulation 101A(2); or

(b) to give any assistance reasonably required under regulation 101A(3).

(2) A person guilty of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Wildlife inspectors

101C.—(1) In regulations 101D to 101I “wildlife inspector” means a person authorised in writing under this regulation by—

(a) the Secretary of State (in relation to England); or

(b) the Welsh Ministers (in relation to Wales).

(2) An authorisation under paragraph (1) is subject to any conditions or limitations specified in it.

Powers of wildlife inspectors to enter premises

101D.—(1) A wildlife inspector may, at any reasonable time, enter and inspect any premises other than a dwelling—

(a) for the purpose of ascertaining whether an offence under regulation 39, 41, 43 or 46A is being or has been committed; or

(b) for the purpose of verifying any statement or representation made, or document or information supplied, by an occupier of the premises in connection with an application for, or the holding of, a licence granted under regulation 44.

(2) The power in paragraph (1) to enter and inspect premises includes power to board and inspect a ship within the coastal sea, subject to paragraphs (3) to (6).

(3) Paragraph (4) applies in relation to—

(a) a third country ship;

(b) a warship which is being used by the government of a State other than the United Kingdom (whether or not it is a third country ship); and

(c) any other ship which is being used by the government of a State other than the United Kingdom for any non-commercial purpose.

(4) A wildlife inspector must not, in the exercise of the power in paragraph (1), board or inspect a ship to which this paragraph applies unless—

(a) in the case of a third country ship (other than a ship which is being used as mentioned in paragraph (3)(b) or (c)), the United Kingdom is entitled under international law to exercise that power without the consent of the flag state; or

(b) the Commissioners have given authority to exercise that power.

(5) The Commissioners must not give their authority under paragraph (4)(b) unless the flag state has consented to the United Kingdom exercising that power (whether generally or in relation to the ship in question).

(6) In giving their authority under paragraph (4)(b), the Commissioners must impose such conditions or limitations on the exercise of the power as may be necessary to give effect to any conditions or limitations imposed by the flag state.

(7) A wildlife inspector shall, if required to do so, produce evidence of his authority before entering any premises under this regulation.

(8) A wildlife inspector entering premises under this regulation may take with him a veterinary surgeon if he has reasonable grounds for believing that such a person will be needed for the exercise of powers under regulation 101E.

(9) In this regulation—

“coastal sea” and “ship” have the same meanings as in regulation 37C;

“the Commissioners” means the Commissioners for Her Majesty’s Revenue and Customs;

“flag state”, in relation to a ship, means the State whose flag that ship is flying or is entitled to fly;

“third country ship” means a ship which—

Wildlife inspectors’ powers for examining specimens and taking samples

101E.—(1) The powers conferred by this regulation are exercisable where a wildlife inspector has entered premises for a purpose mentioned in regulation 101D(1)(a) or (b).

(2) The inspector, or veterinary surgeon accompanying him, may—

(a) for any such purpose, examine any specimen; and

(b) subject to paragraph (3) and regulation 101G, take a sample from it.

(3) No sample may be taken under paragraph (2) from a live animal or plant except for the purpose of establishing its ancestry or identity.

(4) The inspector may require an occupier of the premises to give such assistance as is reasonable in the circumstances for the purpose of—

(a) making an examination under paragraph (2)(a); or

(b) taking a sample under paragraph (2)(b).

(5) The inspector may take and remove from the premises a specimen which is not a live animal or plant, if there are reasonable grounds for believing that it is evidence of an offence under regulation 39, 41, 43 or 46A.

Offences in connection with wildlife inspectors’ enforcement powers

101F.—(1) A person commits an offence if he—

(a) intentionally obstructs a wildlife inspector acting in the exercise of powers conferred by regulation 101D or regulation 101E(2) or (5); or

(b) fails without reasonable excuse to give any assistance reasonably required under regulation 101E(4).

(2) A person commits an offence if, with intent to deceive, he falsely pretends to be a wildlife inspector.

(3) A person guilty of an offence under paragraph (1) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(4) A person guilty of an offence under paragraph (2) shall be liable—

(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or to both; or

(b) on conviction on indictment, to imprisonment not exceeding two years or to a fine, or to both.

Restrictions on taking samples from live specimens

101G.—(1) No sample may be taken by virtue of regulation 101A or 101E from a live animal except by a veterinary surgeon.

(2) No sample may be taken by virtue of regulation 101A or 101E from a live animal or plant unless the person taking it is satisfied on reasonable grounds that taking it will not cause lasting harm to the specimen.

Codes of practice

101H.—(1) The Secretary of State (in relation to England) and the Welsh Ministers (in relation to Wales) may—

(a) issue a code of practice in connection with any of the provisions of regulations 101B to 101G; and

(b) revise or replace such a code.

(2) In discharging any function under regulations 101B to 101G—

(a) a wildlife inspector authorised by the Secretary of State must have regard to any relevant provision of a code issued by the Secretary of State;

(b) a wildlife inspector authorised by the Welsh Ministers must have regard to any relevant provision of a code issued by them.

(3) But a wildlife inspector’s failure to have regard to any provision of a code does not make him liable to criminal or civil proceedings.

(4) A code—

(a) is admissible in evidence in any proceedings; and

(b) must be taken into account by any court in any case in which it appears to the court to be relevant.

Advice and assistance from nature conservation bodies

101I.  Natural England (in relation to England) and the Countryside Council for Wales (in relation to Wales) may advise or assist any constable or wildlife inspector in, or in connection with, enforcement action in relation to offences under Part III of these Regulations.”.

(59) In regulation 102 (proceedings for offences: venue, time limits), in paragraph (2), after “Summary proceedings for”—

(a) insert “any such offence”; and

(b) omit sub-paragraphs (a) and (b).

(60) After regulation 106 (offences by bodies corporate, &c) insert the following regulation—

“Application of criminal offences to the Crown

106A.—(1) No contravention by the Crown of any provision made by these Regulations makes the Crown criminally liable, but the High Court may, on the application of any person appearing to the Court to have an interest, declare unlawful an act or omission of the Crown which constitutes such a contravention.

(2) Notwithstanding paragraph (1), the provisions of these Regulations apply to persons in the public service of the Crown as they apply to any other person.”.

(61) After regulation 108 (service of notices) add the following regulations—

“Advisory role of the JNCC

109.—(1) The Joint Nature Conservation Committee may provide advice or make representations to any competent authority in relation to—

(a) any question as to whether that authority is obliged to carry out an appropriate assessment in relation to a European offshore marine site under these Regulations;

(b) any appropriate assessment on which that authority is obliged to consult the Committee under these Regulations;

(c) any application made pursuant to regulation 62 of these Regulations and sent to the Committee by that authority pursuant to regulation 62(4); and

(d) any decision of the Secretary of State in respect of which notice has been served on it by him under regulation 72(2)(b), 76(2)(b) or 80(2)(b) of these Regulations.

(2) The Joint Nature Conservation Committee may undertake, commission or support (whether by financial means or otherwise) such research and scientific work as it considers is required for the purposes of providing advice or making representations under this regulation.

(3) In this regulation and regulation 110 of these Regulations, “research” includes inquiries and investigations.

Advisory role of Natural England, the Countryside Council for Wales and Scottish Natural Heritage

110.—(1) Natural England may—

(a) provide advice and assistance, or make representations, to any competent authority on any matter which relates to England and is connected with the discharge of the competent authority’s functions under these Regulations; and

(b) undertake, commission or support (whether by financial means or otherwise) such research and scientific work as it considers is required for the purposes of providing advice or assistance or making representations under sub-paragraph (a).

(2) The Countryside Council for Wales may—

(a) provide advice and assistance, or make representations, to any competent authority on any matter which relates to Wales and is connected with the discharge of the competent authority’s functions under these Regulations; and

(b) undertake, commission or support (whether by financial means or otherwise) such research and scientific work as it considers is required for the purposes of providing advice or assistance or making representations under sub-paragraph (a).

(3) Scottish Natural Heritage may—

(a) provide advice and assistance, or make representations, to any competent authority on any matter which relates to Scotland and is connected with the discharge of the competent authority’s functions under these Regulations; and

(b) undertake, commission or support (whether by financial means or otherwise) such research and scientific work as it considers is required for the purposes of providing advice or assistance or making representations under sub-paragraph (a).”.

(62) After Schedule 2 (European protected species of animals), insert Schedule 2A set out in Schedule 2 to these Regulations.

Amendment of the Conservation of Seals Act 1970

6.  In section 10 (power to grant licences) of the Conservation of Seals Act 1970(54)—

(a) after subsection (4) insert the following subsection—

“(4A) A licence under this section does not authorise the use of any method of killing or taking seals which is inconsistent with regulation 41 of the Conservation (Natural Habitats, &c.) Regulations 1994 or any other enactment for the time being in force for the purpose of giving effect to Article 15 of the Habitats Directive (as read subject to any derogation permitted by Article 16 of that Directive).”; and

(b) after subsection (5) add the following subsection—

“(6) In subsection (4A), the Habitats Directive means the Directive of the Council of the European Communities dated 21st May 1992 (No. 92/43/EEC) on the conservation of natural habitats and of wild flora and fauna.”.

Amendment of the Wildlife and Countryside Act 1981

7.—(1) The Wildlife and Countryside Act 1981(55) is amended as follows.

(2) In section 1 (protection of wild birds, their nests and eggs)—

(a) in subsection (3A)—

(i) in paragraph (c), for the words “Council Directive 79/409/EEC on the conservation of wild birds” substitute “the Wild Birds Directive”, and

(ii) in paragraph (d), for the words “the Council Directive referred to in paragraph (c)” substitute “the Wild Birds Directive”; and

(b) in subsection (6A), for the words “the Directive of the Council of the European Communities dated 2nd April 1979 (No 1979/409/EEC) on the conservation of wild birds” substitute “the Wild Birds Directive”.

(3) In section 6 (sale etc of live or dead wild birds, eggs etc), in subsection (5A), for the words “the Directive of the Council of the European Communities dated 2nd April 1979 (No 1979/409/EEC) on the conservation of wild birds” substitute “the Wild Birds Directive”.

(4) In section 9(56) (protection of certain wild animals), for subsection (4) substitute the following subsection—

“(4) Subject to the provisions of this Part, a person is guilty of an offence if intentionally or recklessly—

(a) he damages or destroys any structure or place which any wild animal specified in Schedule 5 uses for shelter or protection;

(b) he disturbs any such animal while it is occupying a structure or place which it uses for shelter or protection; or

(c) he obstructs access to any structure or place which any such animal uses for shelter or protection.”.

(5) In section 16 (power to grant licences), in subsection (9A), for the words “the Directive of the Council of the European Communities dated 2nd April 1979 (No 1979/409/EEC) on the conservation of wild birds” substitute “the Wild Birds Directive”.

(6) In section 27 (interpretation of Part I), before the definition of “wild plant” insert the following definition—

““the Wild Birds Directive” means Council Directive 79/409/EEC on the conservation of wild birds(57);”.

(7) In Schedule 5(58) (animals which are protected)—

(a) after each of “Butterfly, Large Blue”, “Cat, Wild”, “Dormouse”, “Lizard, Sand”, “Otter, Common”, “Snake, Smooth”, “Sturgeon”, and “Toad, Natterjack”, insert “(in respect of section 9(4)(b) and (c) and (5) only)”;

(b) after “Bats, Horseshoe (all species” insert “but in respect of section 9(4)(b) and (c) and (5) only”;

(c) after “Bats, Typical (all species” insert “but in respect of section 9(4)(b) and (c) and (5) only”;

(d) for “Newt, Great Crested (otherwise known as Warty newt)” substitute “Newt, Great Crested or Warty (in respect of section 9(4)(b) and (c) and (5) only)”;.

(e) omit “Turtles, Marine (all species)” and “Dermochelyidae and Cheloniidae”;

(f) after “Whales (all species” insert “but in respect of section 9(4A) and (5) only”;

(g) omit any entries relating to dolphins or porpoises; and

(h) add at the appropriate place the following entries—

(8) In Schedule 8(59) (plants which are protected)—

(a) after “Dock, Shore” insert “(in respect of section 13(2) only)”;

(b) after “Fern, Killarney” insert “(in respect of section 13(2) only)”;

(c) after “Gentian, Early” insert “(in respect of section 13(2) only)”;

(d) after “Lady’s-slipper” insert “(in respect of section 13(2) only)”;

(e) after “Marshwort, Creeping” insert “(in respect of section 13(2) only)”;

(f) after “Naiad, Slender” insert “(in respect of section 13(2) only)”;

(g) after “Orchid, Fen” insert “(in respect of section 13(2) only)”;

(h) after “Plantain, Floating Water” insert “(in respect of section 13(2) only)”; and

(i) after “Saxifrage, Marsh” insert “(in respect of section 13(2) only)”.

Amendment of the Countryside and Rights of Way Act 2000

8.  Omit sub-paragraph (a) of paragraph 5 of Schedule 12 to the Countryside and Rights of Way Act 2000(60).

Transitional provisions

9.—(1) In relation to any offence alleged to have been committed under regulation 39(2)(a) of the 1994 Regulations before 21st November 2007, it shall be a defence for any person to show—

(a) that an application for a licence under regulation 44 of the 1994 Regulations had been made by him (or on his behalf) to the appropriate authority before that date to authorise the possession or control of the animal, part of an animal or other thing in question;

(b) that the application had not been refused by the appropriate authority to whom the application had been made; and

(c) that—

(i) the animal in question, or the animal from which the part or the thing in question is derived, had not been taken or killed, or had been lawfully taken or killed, before 21st August 2007; or

(ii) the animal, part of an animal or other thing in question had been lawfully sold (whether to him or to any other person) before 21st August 2007.

(2) In relation to any offence alleged to have been committed under regulation 43(2)(a) of the 1994 Regulations before 21st November 2007, it shall be a defence for any person to show—

(a) that an application for a licence under regulation 44 of the 1994 Regulations had been made by him (or on his behalf) to the appropriate authority before that date to authorise the possession or control of the plant, part of a plant or other thing in question; and

(b) that the application had not been refused by the appropriate authority to whom the application had been made; and

(c) that the plant, part of a plant or other thing in question had been lawfully sold (whether to him or to any other person) before 21st August 2007.

(3) In this regulation—

“appropriate authority” means—

“lawfully” means without any contravention of the 1994 Regulations or Part 1 of the Wildlife and Countryside Act 1981.