BADGERS BILL [H.L.]

HL Deb 02 April 1973 vol 341 cc22-95

3.32 p.m.

THE EARL OF ARRAN

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(The Earl of Arran.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clause 1 [Taking, injuring or killing of badgers]:

VISCOUNT MASSEREENE AND FERRARD moved Amendment No. 1: Page 1, line 8, after ("badger") insert ("or pelt thereof").

The noble Viscount said: My object in putting down this Amendment is to draw attention to what I consider is an omission in the Bill. Clause 1, as drafted, does not permit any person to have in his possession or control "any badger recently killed or taken" except as permitted by the Bill. It overlooks the fact that the only object of killing a badger, so far as I am aware, is to use or sell the pelt; apart, of course, from a badger which is doing damage, and in my experience that is a very rare occurrence. I understand that it is possible to eat bear meat, but I do not know whether anyone in this country eats badger, although both are omnivorous animals. Under the Bill as drafted, if anyone is stopped by a constable while driving a car, and in the car is found a freshly killed badger's pelt, the constable could do nothing about it. The driver of the car might be the only person in the vehicle and might have killed the badger, but unless he had been seen doing it the constable could not do anything about it. The man could hang the badger skin outside his house, or even wave it in the face of the constable and the officer could do nothing, unless he could find the carcase of the badger in the possession of the man.

I understand that there is a trade in badger pelts. It is true that at the Hudson Bay fur auctions in London badger pelts are sold, but they are imported. There is evidence of a trade in home-killed badger pelts which are sold to fashion houses to be used for trimming hats and coats and for similar purposes. I have no idea whether the pelts of home-killed badgers are used in the manufacture of shaving brushes. To-day very few people use shaving brushes made of badger hair; I think they are rather expensive. The only other use for a badger skin, as my noble friend Lord Lovat said during the Second Reading debate, is to make a sporran, but the skins are not widely used for that purpose. If the object of this Bill is to protect badgers, as indeed it is, this loop-hope must be closed. It is easy for a man who wishes to sell a badger pelt to dig out the badger from its sett, or to snare it, skin it on the spot and bury the carcase. So I hope that my noble friend Lord Arran will accept this Amendment, which I beg to move.

VISCOUNT DILHORNE

I hope that the noble Earl, Lord Arran, will not accept the Amendment. With respect to the noble Viscount, Lord Massereene and Ferrard, it is misconceived. It is designed to insert the words, "or pelt thereof" after the word "badger" in line 8 of the clause, so that it would read: … or if any person has in his possession or control any badger or pelt recently killed". That does not make English, and for that reason I suggest that the Amendment should not be incorporated in the clause. The noble Viscount may be right in saying that often the object of killing a badger is to secure the pelt. But in his Amendment he does rot distinguish between a pelt freshly taken from a badger and a pelt which has been cured and used to make a sporran. It would be necessary to draw some distinction in that connection. But I think that the fears of the noble Viscount are largely unwarranted. If a man is found in possession of a badger pelt which has been recently removed from the animal, it is very likely that also in the man's possession will be found some implement for the taking of badgers, and those two things together might well amount to evidence that he had recently killed a badger. I think that the clause is properly drawn now to make it illegal to kill a badger, save as is permitted by the provisions of the Bill, or to attempt to kill one; and if someone has a recently killed badger in his possession the onus is put on the person who is in possession of the badger to show that he is not guilty of an offence. I do not think that this Amendment will improve the Bill, and I hope that it will be rejected.

LORD CAMOYS

I have probably bored your Lordships before with my views about badgers, but I have had forty years' experience and I have my own badger setts. A badger's food consists 75 per cent. of earthworms, rats, mice and a few voles. He will run up a hedge where a partridge is nesting, and where there are eggs which are about to hatch, and these he likes as a sort of hors d'æuvre. But in respect of his eating habits a badger is 95 per cent. good and 5 per cent. bad. Somebody said on waking up an English gentleman, "It is a fine day; let us go out and kill something." I do not agree with that at all and it is below our standard of behaviour. Occasionally one will get a rogue badger. I urge noble Lords to support Lord Massereene and Ferrard, Lord Arran and myself in preventing this increase in a so-called "sport", when dogs such as dachsunds are nut down a badger sett; they flush the badger, and the man with a spade of a particular shape slashes the badger on the back of the head and kills it. Again, I urge noble Lords to support my noble friend Lord Arran.

THE EARL OF ARRAN

My first reaction was to accept the Amendment as it stood, but as the noble and learned Viscount, Lord Dilhorne, has pointed out, it does not altogether make sense. One cannot very well kill a pelt. However, I understand what is behind the noble Viscount's Amendment and if he would like to redraft it and submit it on Report, I am sure that, subject to the Government's view, the House would be most willing to consider it.

BARONESS YOUNG

I am sure that all of us have listened with great interest to what my noble friend Lord Massereene and Ferrard had to say on this matter. I should like to confirm that the Government have no objection in principle to this Amendment. However, we are not very happy about the drafting of the Amendment. It does not seem to be quite appropriate, nor does it seem to make the clause clear. Perhaps Lord Massereene and Ferrard would like to look at this again. If he would consider withdrawing this Amendment, redrafting it and bringing it back at Report stage, that would be most helpful.

LORD HOY

It was not my intention to intervene on this Amendment, but, having listened to the short debate, I think the most critical criticism that has been voiced was made by the noble and learned Viscount, Lord Dilhorne; summing it up, he said that the English was not good. That complaint can be made about many things in this House. If the substance of the Amendment is good and if the noble Viscount, Lord Massereene and Ferrard, will take it back and re-word it, that would be the answer. I can see what he is attempting to do. The tact that the Government have no objection to it must strengthen his case, because it may well be that the skin will be found and that will constitute the proof of guilt of the person concerned. Some re-wording may be necessary; I think the noble and learned Viscount, Lord Dilhorne, is quite right about that. However, on many occasions I have heard the Government say that if a person will withdraw an Amendment and redraft it they will accept it. Therefore, I advise the noble Viscount to redraft the Amendment and he will get what he wants, but in better English.

LORD DOUGLAS OF BARLOCH

The only objection is upon the point of drafting. If I may respectfully so suggest to the noble Viscount who has moved this Amendment, he can easily get over that at a later stage by inserting after the word, "badger" not "or pelt thereof" but "or pelt of a badger" and then a little later on "recently killed", and so on.

VISCOUNT MASSEREENE AND FERRARD

I was trying to save words. I agree to a certain extent with what was said by my noble and learned friend on the Cross Benches, but of course if one finds a clever lawyer—and the noble and learned Viscount is a clever lawyer—he can twist the English language in any way he likes. We do not make laws for the ordinary laymen, but I should have thought that the ordinary layman on reading that Amendment would know instantly what was meant. I should like to take up the noble and learned Viscount on something that he said. If I understood him aright, he gave the example of a policeman who, if he stopped a man in a car who had some freshly skinned badger pelts, would then find evidence that the owner of the badger pelts at that time had killed the badgers. I cannot agree with that—

VISCOUNT DILHORNE

That was not what I said; it is a complete parody of what I said and I suggest that the noble Viscount should read what I said. I said that in certain circumstances it might amount to some evidence of the recent killing of badgers. I made no reference to a police constable. Here we are creating a criminal offence and it is important that it should be defined clearly in English. I am sorry to say that I do not think that Lord Douglas of Barloch's suggestion will do.

VISCOUNT MASSEREENE AND FERRARD

I shall not prolong the argument, because it would waste the time of the Committee. I shall try to bring the point up on Report stage in wording that will satisfy my noble and learned friend on the Cross Benches. Therefore, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

3.47 p.m.

THE EARL OF ARRAN moved Amendment No. 3A:

After Clause 1 insert the following new clause:

Offences of cruelty . If any person shall—

1. (a) cruelly ill-treat or terrify any badger, or
2. (b) use in the course of killing or taking, or attempting to kill or take any badger, any badger tongs,

he shall be guilty of an offence against this Act.

The noble Earl said: In my view this is perhaps the most important Amendment in my name on the Marshalled List, and I am glad to see Lord Cranbrook's name attached to it. If it is accepted as it stands, or on the understanding that it may require some tidying up at Report stage, subject to any views expressed by the Government or the Committee, I should not seek openly to oppose other Amendments except one in particular which we shall come to at the end of our business. However, should this Amendment not be accepted, or should there be strong opposition to it and the principle behind it, I should have to advise your Lordships to consider carefully the provisions of paragraph (a) of Lord Cranbrook's Amendment No. 21, on which feelings run high. So far as I am concerned, the Amendment we are now discussing represents a reasonable counterbalance to a number of Amendments by the noble Earl, in particular the very wide meaning given to the expression "person … authorised" in paragraph (a) of Amendment No. 21.

As the Bill was originally introduced the killing or taking of badgers was to be absolutely prohibited except under restricted circumstances. Since then, after a considerable tussle with my conscience, I have decided not to speak too strongly in regard to a number of Amendments put down by the noble Earl, the effect of which basically would be that the owner or occupier of land which he designates will be at liberty to take badgers on that land except in an area specified as an area of special protection for badgers. But even in this case the owner or occupier or any person authorised by him will have a defence at law if he can show the court that his action of killing or taking the badger was necessary for preventing serious damage to property. I speak of the so-called rogue, if indeed he exists, and also of disease. So far as the Amendment we are considering is concerned, I must support it in toto, but I expect the noble Earl, Lord Cranbrook, is more wholeheartedly behind that part of it expressed in paragraph (b), which is to prohibit the use of badger tongs. I go further, and wish to prohibit any wanton cruelty towards badgers. This is what my Amendment is designed to achieve.

If because of my inexpertise it is inadequately drafted, I shall be more than willing to listen to and to accept any improvements which may be suggested as long as they achieve my object; namely, making it an offence under this Bill in any circumstances to behave cruelly towards badgers. Provided my Amend ment (which may well be in an improved form on the Report stage) is accepted in principle—and I must make it abundantly clear that it is only on this condition—I shall not myself, regardless of what others may seek to do, challenge violently the, to me, odious paragraph (a) in Amendment No. 21, though I am still strongly opposed to it. If my Amendment is not accepted, I think I shall at the appropriate time have to ask the Committee to look most carefully at the provision in paragraph (a) of Amendment No. 21 which enables a landowner to invite anybody on to his land and, in the absence of my Amendment, to behave towards badgers with all the cruelty which the law at present allows.

It might be helpful at this stage if I were to indicate that the discussions on the Amendments to this Amendment, standing in the name of the noble and learned Viscount, Lord Dilhorne, are ones to which I shall listen with interest. It may be that the noble and learned Viscount feels that the phrase "cruelly ill-treat" is enough in itself. The same applies to his second Amendment to this Amendment. Admittedly, tongs can be used for beneficent purposes. They can be used, for instance, for transferring a badger from one place to another. But they can also be evilly and badly used. I beg to move my Amendment, and no doubt the noble and learned Viscount will speak to it.

3.54 p.m.

VISCOUNT DILHORNE moved as an Amendment to the Amendment: Line 2, leave out ("or terrify").

The noble and learned Viscount said: I beg to move Amendment No. 3B standing in my name, at line 2, to leave out the words "or terrify". I should like to start by saying that neither of these Amendments which I have tabled to this new clause are in any way hostile. They are, in substance, of a drafting character. The noble Earl has by Clause 1 sought to make it an offence, subject to certain exceptions, to kill, take or injure any badger; and as we are dealing with badgers, it seems to me logical and right that the next clause should be one making it a criminal offence cruelly to ill-treat a badger. So I want to start by making it clear that I would support the noble Earl in his efforts to get a clause of this sort.

My Amendment, as I say, is really of a drafting character. I think it will improve the Bill for this reason: that paragraph (a) really creates two criminal offences, one cruelly to ill-treat a badger, and the other to terrify a badger. I know that those words are taken from the Protection of Animals Act 1911, but I think the words "or terrify" are wholly unnecessary and it would be much better if they were left out. In a case of prosecution I do not know how one would prove that the badger was terrified. Views might well differ on what conduct on the part of a human being terrifies a badger. I think the phrase is wholly unnecessary, and that what the noble Earl and, I imagine, the Committee want is to make the cruel ill-treatment of the badger a criminal offence. I believe it to be quite unnecessary to make in this Part two offences, and it would improve the Bill to leave out the words "or terrify".

The noble Earl has in the course of his speech referred to my Amendment No. 21, and to paragraph (a) of that Amendment. I think at a later stage, if this new clause and that new clause are carried into the Bill, we shall need to do something to adjust the two, because there are those who would say—and I do not seek to argue with them—that any killing of a badger, be it by an authorised person or not, would necessarily involve some degree of cruelty and suffering. That may well be the case. If the noble Earl accepts Amendment No. 21, I think he will recognise that there may be a degree of cruelty and suffering and would not want that to be the subject of a criminal prosecution under this new clause. At the same time, of course, if there was any really cruel behaviour in the killing, one would want that dealt with under this particular provision. So there may be a need for adjusting the two, but we shall not be able to ascertain the position until we get the Bill into shape for the Report stage. So far as this new clause is concerned, I beg to move my Amendment because I think it will simplify the Bill. It will not narrow it. If there is cruel ill-treatment, presumably the badger will be terrified by it, and I think the words "or terrify" add nothing at all.

VISCOUNT MONCK

I should like to support my very old friend the noble and learned Viscount, Lord Dilhorne, in this Amendment. Let us take a practical case. My noble and learned friend and myself are walking quietly down a glade in a wood at Sis time of the year, and, as is our wont, stopping now and again to pick a primrose, and uttering those famous words of Wordsworth: Oh to be in England, now that April's there. Then, suddenly, round the corner comes a badger. It takes one look at my noble and learned friend and myself and turns tail. That is not unreasonable. But who is to say whether that badger has been terrified by the sight of my noble and learned friend and myself, or whether it has a guilty conscience because it has just robbed a lien roost or, as a noble friend of mine said just now, a partridge's nest? I agree with my noble and learned friend that, as the new clause stands, it is impracticable, and I would entirely support him in leaving out the words specified.

LORD CHORLEY

Can the noble Viscount please identify the poem by Wordsworth in which that passage occurs?

VISCOUNT MONCK

It could have been Homer; I thought it was Wordsworth, but if it was not, I apologise to Wordsworth's shade.

LORD CHORLEY

Browning wrote the poem.

THE EARL OF ARRAN

May I point out to the Committee that the walk which the noble Viscount proposes taking with the noble and learned Viscount would have to be by night, because badgers are not normally seen in the day-time.

LORD BIRKETT

I hesitate to take issue with the noble and learned Viscount on a matter of drafting; but I assumed in this clause that the adverb "cruelly" which precedes the word "ill-treat", would also qualify the verb "terrify". It is important to make some distinction, because although the noble and learned Viscount cannot see that it adds anything, I can. The word "ill-treat" in a general sense gives one the impression that in some physical way the animal has been hurt or injured. The word, "terrify" does not necessarily mean that; but it could, for example, cover the territory of baiting an animal in which the animal was not touched at all and therefore might be said not to have been ill-treated.

It is also something to be remembered that in animals terror is something which is of a different nature than terror in human beings. For human beings terror can be assuaged; human beings can be comforted and relieved a great deal more easily than animals, which cannot, after all, speak and which do not have available to them the comfort of their fellows in any tangible form. Terror in an animal sets up a cycle of horror that is a lot longer lasting and a lot more serious than it is in human beings. Therefore, although I find it a nerve-wracking business to dispute with the noble and learned Viscount on a matter of drafting, I see a distinction between "ill-treat" and "terrify". I think that the word "terrify" would add something to the Bill, and I hope that it stands.

LORD ROBBINS

Would the noble Lord explain to the Committee how he would prove the fact of terror on the part of the animal?

LORD BIRKETT

I should find it extremely difficult to prove ill-treatment, terror or anything. It would be difficult to prove many of these things because I am not a lawyer and I am not practised in these matters. The fact that it stands in the Bill would make it possible for somebody who saw the baiting of an animal and its behaviour, and who was an expert in animal behaviour, to be able to testify before a court that an animal had been terrified.

VISCOUNT DILHORNE

Why does the noble Lord assume that the baiting of an animal is not the cruel ill-treatment of it? He seems to assume that you can only ill-treat an animal if you handle it; I do not accept that for one moment.

LADY RUTHVEN OF FREELAND

Animals can be terrified of human beings.

LORD CAMOYS

Badger digging must terrify the animal, or at least it must be very frightened. Badgers are not entirely nocturnal. I do not entirely agree with the noble Earl, Lord Arran, on that point. I once saw a badger—I thought it was a deer—come up through a plantation, and it ran right into my legs. It was not afraid of me at all—it turned round and went back again. Perhaps it knew by instinct that I was pro-badger. A rabbit or anything else you dig out of its hole or nest—the sett in the case of a badger—must be frightened.

LORD HOY

I can see the point of this Amendment: that by not putting in these words we might allow something to go by default. On the other hand, I can see and understand the case made by the noble and learned Viscount, Lord Dilhorne, that we ought not to repeat what we have already provided for in an Act of Parliament. If that is the case he is making, I ask my noble friend Lord Arran to look at this matter again. I would not go along with the noble Viscount, Lord Monck, because the case he made was an appalling one—if I may say so, gently and kindly, to him. Despite the contribution of the previous noble Lord, may I say that if you want to find badgers you do not go picking primroses at midnight. I do not accuse the noble and learned Viscount of doing this, but I pity the man who appeared before the noble Viscount in his judicial capacity and, when asked to explain his conduct at midnight, said he was out picking primroses. I am certain that the noble Viscount when on the Bench, would not accept that excuse.

Perhaps we might get rid of that point for a moment and concentrate on the point that matters, which is: is the word necessary; have we already covered it? If we have not, let us have it in. I suggest to my noble friend, Lord Arran, that he might have a look at this point, if the noble and learned Viscount, Lord Dilhorne, will withdraw the Amendment, and consider the matter between now and the next stage of the Bill. If, after getting advice, he reaches the conclusion that it is necessary to have it, I am certain it would be the solution that your Lordships would desire.

LORD DONALDSON OF KINGS-BRIDGE

I should like to ask the noble and learned Viscount not to withdraw his Amendment. To introduce the word terrify" in this context is irresponsible. As the noble Lady said, animals are frightened of men. Every time a farmer gets a lamb or a pig by the leg he terrifies it. Anybody who does not know that has never done it. It is the greatest possible mistake to bring this word, ill-defined and probably wrongly applied, into a perfectly serious Act of this kind which is trying to do something positive. I hope that the noble and learned Viscount will persist with his Amendment.

LORD FOOT

I suggest that we ought to pause before we accept the advice of the noble and learned Viscount and agree to his Amendment. If one looks back (and he has already referred to this) to the Protection of Animals Act 1911, it reads in this way—I do not have the Act with me and I cannot quote it in full, but it is to this effect—"if any person cruelly ill-treats, beats, kicks or terrifies" (and there are a lot of other words introduced into the Act) then he is committing an offence.

VISCOUNT DILHORNE

Can the noble Lord say whether there has ever been a prosecution under that Act for terrifying?

LORD FOOT

There has been one for kicking. As I understood the argument of the noble and learned Viscount it was that ill-treating an animal includes terrifying, and, as I understand it, he would say that that includes kicking. The noble Viscount has asked whether there has ever been a prosecution simply for kicking as opposed to ill-treatment. My answer is, "Yes". That Act of Parliament has stood for something like 60 years. It uses the word "ill-treat" at the beginning and it goes on to use other words which are forms of ill-treatment. If the noble and learned Viscount's argument is right, that Bill is wholly misconceived and all those words are otiose. I suggest that before we accept his advice we ought to pause. What we are being invited to do is to say that the way in which the 1911 Act was drawn was, if not ridiculous, unnecessary. That is a serious judgment to make. I therefore respectfully recommend to the Committee that the noble and learned Viscount should withdraw his Amendment so that the matter can be reconsidered between now and the next stage of the Bill.

LORD SOMERS

Would the noble and learned Viscount be more satisfied if the word "wilfully" was inserted before the word "terrify"? That would imply a definite act of intention to do so.

VISCOUNT DILHORNE

That is not the point, with great respect to the noble Lord. I will deal with that point together with the argument advanced by the noble Lord, Lord Foot. In relation to badgers you are here seeking to create two sepa rate and distinct offences: one is cruelly to ill-treat a badger, and the other is to terrify a badger. As the Bill is drafted, the word "cruelly" precedes the word "ill-treated" and not the word "terrify". It makes no difference if you put the word "cruelly" in before the word "terrify". The point I ask the Committee to consider is that you are here creating a criminal offence, and how are you going to prove in the magistrates' court that the badger was terrified. You can prove that there has been cruel ill-treatment of a badger. That cruel ill-treatment may take many forms, and as a result of that cruel ill-treatment the badger may in fact be terrified; but you do not have to prove that it was terrified to show that there was cruel ill-treatment.

The cruel ill-treatment may include baiting. It is not necessary that you should put a hand on the badger to ill-treat it cruelly, and in answer to the noble Lord, Lord Foot, I want the words "cruel ill-treatment" to have the widest possible import so that the benches before whom cases come will have to apply their minds to the question: "On the evidence that we have heard, does this amount to cruel ill-treatment?" I do not want them to concern themselves with whether there was in fact a kick or any other particular physical act; and the string of word which are attached in the Protection of Animals Act may have a narrowing effect. I would much rather leave it to the courts simply to determine whether or not there has been cruel ill-treatment, and it is because the words "or terrify" in my opinion add nothing and may indeed cause some difficulty, that I ventured to move that they should be left out. I think it would improve the Bill. I am not seeking to wreck it in any way because I am in support of a clause of this kind.

THE EARL OF CRANBROOK

As the noble Earl said, I am wholeheartedly behind him in the desire to secure that no unnecessary cruelty is inflicted on badgers in any circumstances. I must confess that I was struck by the cogent argument put forward by the noble and learned Viscount, Lord Dilhorne. I believe that any proscution would have difficulty in proving that the creature was terrified, although I do not think they would have any difficulty if the two noble Lords were walking together, picking primroses, which would be a terrifying sight for almost any of us to meet on a dark spring night going down the rides. But that is bound to be an exceptional circumstance and one that is not often likely to come before the courts.

If the noble Earl felt inclined to accept this Amendment, I would not gainsay it. I feel that with the remainder of this clause we have the substance of what we wish, which is to secure what the Scott Henderson Committee said in its Report and was quoted by the noble Earl, Lord Mansfield. It is something we could have in our minds all through our consideration of this Bill: that if anybody has to kill a wild animal it should be done with due regard to the dictates of humanity; that is to say, to kill without causing unnecessary suffering. I believe that so long as we have the word "cruelty" in we shall secure that purpose, and for one, would be perfectly content with that.

LORD NUNBURNHOLME

I should like to see the words "or terrify" left in the clause. One has to do a physical act to establish cruelty, but to terrify is something completely different. The noble and learned Viscount mentioned baiting. I would say that if a badger is in a box and people bait it, that is terrifying the animal but it is not cruel; you are not doing physical harm to the badger. Therefore I should like to see the words "or terrify" left in. It does not matter one way or the other really, but let us be fully covered.

THE EARL OF MANSFIELD

I feel that I should spring to the defence of the noble Earl, Lord Arran, at least so far as the wording of some of this clause is concerned, because I suggested that he should pray in aid the Protection of Animals Act 1911 when the matter came before your Lordships on Second Reading. If I give only one and a half cheers instead of three, I think it is because of the choice of the words that he has taken from the Act. In fact Section 1(1)(a) says, so far as conduct is concerned: .… cruelly beat, kick, ill-treat. over-ride, over-drive, over-load, torture, infuriate, or terrify and the noble Earl has taken the third and the last. Any of us who has any knowledge of the country and what goes on there knows that for both wild animals and domestic animals the element of terror and fright is almost half of their daily lives. The severing of a lamb from its mother in due season is bound to cause it terror and nobody would, at any rate to my knowledge, seek to try to prosecute a farmer in respect of that conduct.

I have severe reservations in regard to this clause, particularly with the definition of "cruelty", but it may be that that had better be discussed in the debate on the Question, Whether the clause shall stand part of the Bill? assuming that the Amendments are accepted. With respect, I would support the noble and learned Viscount, Lord Dilhorne: the word "terrify" taken out of its context from the Protection of Animals Act is really an unnecessary word: it does not add anything to the first word. In my submission "ill-treat" must embrace the element of terror, if it exists.

BARONESS YOUNG

As the noble Earl, Lord Arran, said in moving the substantive Amendment, the object behind this clause is to prevent cruelty to badgers—something which I am sure we all support. All animals, including badgers, are protected against cruelty by the Protection of Animals Act 1911 when they are tamed or in captivity. This particularly applies to badger baiting, which is illegal under that Act. Furthermore, there is a precedent in the Seals Act 1970 in a similar section and therefore there is no objection at all in principle to this clause.

However, I am advised that the drafting should be looked at again. As the noble and learned Viscount, Lord Dilhorne, has pointed out in his Amendment to the main Amendment, there is the difficulty of the definition of the word "terrify" and its omission makes paragraph (a) clearer. But I am further advised that it would be better to look at the whole of the wording of paragraph (a) because by inference it might be possible to ill-treat or terrify a badger in a way that was not cruel, and this misunderstanding should be cleared up. I wonder, therefore, whether the noble Earl, Lord Arran, would like to look at this matter again in the light of the Amendments which have been moved and either withdraw this Amendment or consider amending it at Report stage.

VISCOUNT DILHORNE

I hope the noble Earl, Lord Arran, will not withdraw his Amendment at this stage, because I think we ought to discuss the second part of it. I have tabled an Amendment to the second part of his Amendment which I certainly would like to ventilate before the Committee. I would not wish to withdraw my present Amendment now before the Committee in view of the support that I have received, because whatever other defects there may be in this clause which have escaped my notice at the present moment, I believe the Amendment which I have moved cures one. Therefore I would ask the noble Earl, Lord Arran, whether he would accept my Amendment.

LORD FOOT

I should like to join with the noble and learned Viscount in asking my noble friend not to withdraw his Amendment. An important matter of principle is involved here. Some of us thought that the Bill as originally drafted was defective in that it dealt only with, first, taking, injuring and killing of badgers and then the selling of badgers, and there was not any provision at all dealing with cruelty to badgers as such. Many of us thought that this was a defect in the Bill. That defect has now been repaired. In my view it would be a minor calamity if this provision protecting badgers against cruel ill-treatment were to disappear altogether. Whether or not the noble and learned Viscount's Amendments are an improvement is quite a different matter but, for myself, I do not want to see this clause of the Bill, which I regard as a very important one, disappear.

THE EARL OF ARRAN

I take both the noble Lord's view and also that of the

noble Baroness. I believe that many of the Committee would like on principle to see the clause stand as it is. I also think that I should like to hear the noble and learned Viscount's further Amendment, Amendment 3C, as a separate issue. Could we possibly agree or disagree on the first part of the clause and then deal separately with the noble and learned Viscount's Amendment 3C? Would the noble and learned Viscount agree to that?

VISCOUNT DILHORNE

I would agree to that, but would the noble Earl say whether he is prepared to accept the Amendment which I have moved. We shall get into a muddle if I am asked to withdraw that Amendment now and he is asked to withdraw his Amendment later. May I ad this further word? I regard it as important that there should be a clause in the Bill dealing with cruelty before we get to the Report stage. We can make Amendments on Report stage but I think it would be a pity to have an entirely new clause on Report stage which we have not seen before. We may have to do that, but it is a pity to do it unless it is unavoidable. I think that the Amendment I have moved is purely drafting and makes some improvement.

THE EARL OF ARRAN

The only thought that occurs to me is that the Committee may wish to express its own views and that to take advantage of the views of the Committee would be rather presumptuous of me, would it not?

4.22 p.m.

On Question, Whether the said Amendment (No. 3B) shall be agreed to?

Their Lordships divided: Contents, 66; Not-Contents, 41.

CONTENTS
Adeane, L.	Daventry, V.	Jessel, L.
Allerton, L.	Davidson, V.	Kilmany, L.
Arran, E.	Denham, L.	Kinnoull, E.
Auckland, L.	Dilhorne, V. [Teller.]	Loudoun, C.
Barnby, L.	Donaldson of Kingsbridge, L.	Mansfield, E.
Belhaven and Stenton, L.	Elles, B.	Mar, E.
Belstead, L.	Elworthy, L.	Margadale, L.
Berkeley, B.	Ferrers, E.	Marlborough, D.
Braye, L.	Fulton, L.	Massereene and Ferrard, V.
Brockway, L.	Gainford, L.	Milverton, L.
Camoys, L.	Greenway, L.	Monck, V.
Cawley, L.	Grenfell, L.	Mowbray and Stourton, L.
Clwyd, L.	Grimston of Westbury, L.	Northchurch, B.
Cork ami Orrery, E.	Harvey of Prestbury, L.	Norwich, V.
Cottesloe, L.	Hayter, L.	Nugent of Guildford, L.
Craigavon, V.	Hylton-Foster, B.	Rathcavan, L.
Craigton, L.	Ironside, L.	Robbins, L. [Teller.]
Sainsbury, L.	Summerskill, B.	Wakefield of Kendal, L.
St. Aldwyn, E.	Teviot, L.	Wells-Pestell, L.
Shannon, E.	Thomas, L.	Wright of Ashton under Lyne, L.
Shinwell, L.	Trefgarne, L.
Southwark, Bp.	Wakefield, Bp.	Wynne-Jones, L.
Stamp, L.
NOT-CONTENTS
Airedale, L.	Carnock, L.	Ogmore, L.
Amherst, E.	Champion, L.	Onslow, E.
Amulree, L.	Chorley, L.	Popplewell, L.
Archibald, L.	Coleridge, L.	Rusholme, L.
Ardwick, L.	Effingham, E.	Ruthven of Freeland, Ly.
Arwyn, L.	Faringdon, L.	Shackleton, L.
Avebury, L.	Foot, L.	Snow, L.
Bacon, B.	Gaitskell, B.	Tanlaw, L.
Beaumont of Whitley, L.	Garnsworthy, L.	Taylor of Mansfield, L.
Birkett, L.	Hoy, L. [Teller.]	Vivian, L.
Blyton, L.	Jacques, L. [Teller.]	Willingdon, M.
Boothby, L.	Llewelyn-Davies of Hastoe, B.	Willis, L.
Buckinghamshire, E.	Nunburnholme, L.	Wootton of Abinger, B.
Burntwood, L.

On Question, Amendment agreed to.

Resolved in the affirmative, and Amendment to the Amendment agreed to accordingly.

4.31 p.m.

VISCOUNT DILHORNE moved as an Amendment to the Amendment: Line 3, leave out paragraph (b).

The noble and learned Viscount said: I must apologise for this Amendment, No. 3C, being a manuscript Amendment. It should not have been because I handed it in last Thursday, but there have been so many changes and rearrangements of Amendments that I am afraid it got mislaid and that is why it appears in its present form. The Amendment is to leave out the words in paragraph (b) of Amendment 3A: use in the course of killing or taking, or attempting to kill or take any badger, any badger tongs".

I understand that some badger tongs are very cruel instruments indeed, and if those instruments are used I should have thought that there would be no difficulty in securing a conviction under the clause as it now stands, as amended, namely, for cruel ill-treatment. I am told, though, that there are other badger tongs which are not in themselves cruel implements with horrid jaws to the tongs, and that it may well be that one of the least cruel ways of taking a badger, by someone who under this Bill will be authorised to take it, will involve the use of such tongs.

As the Bill now stands, it makes it a criminal offence to use any tongs, irrespective of their character, for the taking of a badger, and that, I feel, is going too wide. I should like this criminal offence to be stated in the shortest and simplest terms; namely, that any person who cruelly ill-treats a badger is guilty of a criminal offence. It is a simple offence simply stated. If cruel tongs are used, the person would be convicted, or should be convicted, of that offence. I beg to move.

LORD SOMERS

I was vaguely in favour of the noble and learned Viscount's last Amendment, but this one, I must confess, I am wholly against. For one thing, who would say in the court what are cruel tongs and what are not? I have been in touch with the experts at the R.S.P.C.A., and asked them what was the most humane way of taking a badger. The only badgers which have to be taken are rogue badgers as a rule, and it is well known where they go. As a rule, they are not particularly afraid of human habitation, and they will very often take chickens. I was told that the humane way is to use a trap, a cage trap, which can be easily baited, and which, provided it is looked at at short intervals, will not cause undue suffering. That, I think, leaves no doubt whatsoever to the court; they would not have to decide whether the cage was humane or not, as they would in the case of tongs. I think this would be a far simpler solution. So I would like to see paragraph (b) stand.

THE EARL OF CRANBROOK

I have only one experience of seeing a badger dug out; that was when I was hunting and a fox went into a badger's sett and was dug out, and it was done without the use of tongs. So my own experience of tongs is about as great as I think the noble and learned Viscount's, and I rely, in the same way as he does, on hearsay. On the other hand, I suspect that I have the advantage of him in so far as I have been to hear a number of papers read at learned societies by people who have dug out badgers for scientific reasons, some for marking and releasing and the like, some for taking from places where they are not wanted and releasing where they are. Of the people who have had a great deal of experience of that sort, one and all have refused to use badger tongs, of whatever description.

I can conceive it is possible that there can be badger tongs which are more cruel than other badger tongs, because, of course, they are like sugar tongs; it is a series of jaws which close together and grasp the animal, possibly at a place where it does not hurt, but possibly at a place where it does. Nobody can be there to see what is happening. Whether the jaws of the tongs are contrived to hold more severely because they have jagged edges to them, as I understand is not unknown, or whether they are merely smooth, the risk of cruelty being involved is far too great for your Lordships to allow these weapons to continue to be used. I have spoken to a number of people who have great experience of getting out badgers. I suppose the man who knows most about badgers is Dr. O'Neill, who has written the standard book on them. I consulted him specifically about tongs. He is, like the noble Earl, Lord Arran, devoted to badgers, and would only really be satisfied if all badger digging was completely forbidden. None the less, he assures me that he is satisfied that a great deal of the cruelty involved in badger digging would disappear if badger tongs were not allowed.

I am completely satisfied myself, having talked to people who have real experience, that it is perfectly feasible to catch a badger without the use of tongs. It is wholly unnecessary to use tones if you want to catch badgers because they are doing damage. You can catch them without using tongs. The only reason for using tongs is that you enjoy the sport of badger digging. I do not want to interfere with other people's sports; I myself am fond of blood sports. But the words from the Scott Henderson Report are the ones which I am quite certain all of your Lordships would wish to follow in your own activities, and it seems to me quite obvious that one cannot indulge in this sport and use tongs without being cruel.

There is ample precedent for the banning of unsuitable weapons in what is now rapidly being turned into a conservation Bill. In both the Deer (Scotland) Act and the Conservation of Seals Act there are provisions preventing the use of really small bore rifles, such as the ordinary 0.22 target rifle, for killing deer and seals. There is no doubt that one can kill both of those animals with an ordinary 0.22 target rifle if one gets close enough, aims straight enough and hits the animal straight through the head. Indeed, it was common practice in the Falkland Islands Dependencies to shoot animals as large as elephant seals with 0.22 rifles, because they were unsophisticated and one could get to within 5 or 10 yards of them and put a bullet through the head. But the fact that one can kill a deer or a seal in this country with a rifle which is wholly unsuitable for use in ordinary circumstances does not make it legitimate to use a rifle of that sort for general purposes.

I think the same is true so far as badger tongs are concerned. It may well be true that you can use them without causing unnecessary pain and damage, but the fact that they almost inevitably lead to unnecessary pain and suffering makes then an instrument which should be banned, just as the 0.22 rifle is banned under the Deer (Scotland) Act and the Conservation of Seals Act; and I hope that your Lordships will not accept the noble and learned Viscount's Amendment.

LORD ALLERTON

Before the noble Earl sits down, may I ask him what method his scientific friend uses for getting hold of a badger in the process of digging it out? A bull badger is a big—

THE EARL OF CRANBROOK

I have heard of two methods: first, running them into a net; and, secondly, running them into a large box trap, which seems to be remarkably effective. As I said, I have seen the records of people who have caught large numbers of badgers in this way, and I am quite satisfied that these are effective methods. I would just add that it is not really necessary to drag a badger out alive. When you get close enough to seize him with the tongs, you can nearly always shoot him with a 12 bore.

LORD COLERIDGE

May I rise to support the noble Earl, Lord Cranbrook, in what he has said about tongs? Coming as I do from a part of the world where badger digging is a traditional sport, I know only too well the horrors which badger digging with tongs inflicts upon the unfortunate animal. I have not seen the so-called humane tongs which are alleged to exist, and no one has used them in my part of the world. So I should like to agree with the noble Earl, and I suggest that paragraph (b) remains as at present drafted, excluding the use of tongs.

VISCOUNT MASSEREENE AND FERRARD

I supported the noble and learned Viscount on the last Amendment to delete the word "terrify", but I am afraid that I cannot support him on this Amendment. There are only two reasons why you want to dig a badger out: first, because you want to kill it—and if you want to kill it the only humane method is to shoot it in the back of the head with a 12 bore, if you get a good opportunity, in the sett; and, secondly, because you want to take it alive, when you should get it into a strong net, but this is not very easy to do. If you are not practised, the only humane course is to get your local vet to anæsthetise the animal. I have often had animals anæsthised, if I wanted to change them from one paddock to another. It is perfectly simple to use an anæsthetic dart. You can learn to do it yourself, but if you do not know how to do it you can ask your local vet to do it. So I cannot support the Amendment of the noble and learned Viscount, because I have seen tongs used and I consider them cruel.

LORD FOOT

Although the noble and learned Viscount may consider that I am a rather unlikely ally, I should like to say a few words in support of his Amendment which I think is an improvement. The noble and learned Viscount was quite right in saying that it is far better just to leave this new clause prohibiting ill-treatment as such, leaving it to the court to decide whether, in the opinion of the court, the use of a particular implement or certain treatment which the badger has had amounts, as a matter of fact, to cruel ill-treatment. Once you start specifying that certain instruments are impermissible, you are impliedly suggesting to the magistrates who have to decide these matters that other implements may be permissible.

I do not know anything about badger tongs, but I gather from those who do and from what has been said here to-day that there are certain kinds of tongs whose use does not in fact involve cruelty or import injury to the animal. I would then ask the question: if you prohibit tongs as such, whether it involves cruelty or not, are you impliedly approving of, say, the use of a fork or a grab of some kind? I suggest that to try to prohibit tongs alone is only bringing confusion into the matter. It is very much better if it is left to the good sense of the courts to decide whether certain action involves cruelty to the badger.

VISCOUNT DILHORNE

This Amendment has provoked an interesting discussion and some considerably varied views. I should like to thank the noble Lord, Lord Foot, for the support he has given to this proposal, which I can assure the Committee has been put forward not with the intention of narrowing or restricting the scope of the clause, but with the intention of making it a better clause from a practical point of view. In resisting this Amendment, the noble Lord, Lord Somers, asked: who would say whether or not the tongs were cruel? My response would be that it is much better to leave the answer to that question to the courts when they have seen the tongs. I gather that on seeing the tongs which I think the noble Earl, Lord Arran, had placed in the Library on a previous occasion, the magistrates would probably have very little difficulty indeed in coming to the conclusion that they were cruel.

If we are considering here only what I might call the kind of badger digging that ought to be prohibited and that people do not like, that is one thing. But it is not just the case, as the noble Earl, Lord Cranbrook, suggested, that we are dealing with the taking of badgers for baiting or for the purpose of killing them. We are concerned under this Bill with certain people being authorised to take badgers—it may be for zoos, it may be for scientific purposes, and so on. That is what the Bill is intended to provide for. It seemed to me possible—and I do not speak as an expert upon this matter—that one of the ways in which you could capture an animal for one of those purposes, causing the least terror and suffering to the animal, was not by the use of cruel tongs but by the use of tongs to extract it from the sett and place it in a receptacle. Having listened to the debate, I am by no means satisfied that the proper use of suitable tongs by someone would cause more suffering to the animal than, as the noble Earl, Lord Cranbrook, said, running it into a net or running it into a sack. I can imagine a badger being very frightened if it is run—and I do not know how you run a badger. Do you poke it from behind with a stick? Because that may involve a considerable degree of cruelty and, I should have thought, possibly just as much suffering as the picking up of it, with tongs, by someone who is not intending to cause it suffering more than is necessary—someone who is taking it to a zoo, or for scientific purposes—and the placing of it quietly in some kind of receptacle.

I myself feel that this clause would be better without this particular provision. I gather that the noble Earl, Lord Arran, is going to be asked to consider the whole of this new clause at some later stage. I would hope that those who have spoken against it will give further thought to the matter, because if we are going to re-draw this clause I myself believe that it would be better to leave it as I have indicated. If the noble Lord, Lord Foot, feels that it is a matter which we could appropriately take to a Division, I would pursue this Amendment; but in the light of the fact that most noble Lords who have spoken have spoken against it, unless he would join with me in pursuing it I would ask leave to withdraw the Amendment.

Amendment to the Amendment, by leave, withdrawn.

THE DEPUTY CHAIRMAN OF COMMITTEES

The Committee now reverts to Amendment No. 3A, as amended by Amendment No. 3B.

4.52 p.m.

THE EARL OF MANSFIELD

When your Lordships were considering the noble and learned Viscount's first Amendment I said I would have some remarks to make on the Question, Whether the clause shall stand part of the Bill? That merely disclosed my ignorance, of course, because a clause which is not yet part of a Bill cannot stand part. When this matter was ventilated on Second Reading, I expressed my reservations really under two heads. We are all agreed that in certain cases, at any rate, badgers should be conserved as an ecological measure. Secondly, I think we are all agreed without exception that it is most important and highly desirable that there should be no further cruelty to badgers inflicted by people who find some sort of pleasure in baiting them or digging them out and killing them. Thirdly, we are also agreed, I think—and I am sure the noble Earl, Lord Arran, agrees—that those who farm or otherwise occupy the land upon which badgers have their setts must be allowed to enjoy their rights of occupation peacefully; and if, putting it colloquially, a badger makes a nuisance of himself then the landowner, farmer, or occupier, whoever it may be, must be able in some cases to kill a badger, and in other and possibly more important cases must be able to remove a badger's sett to stop it making its home in an otherwise unsuitable or even dangerous place. Those of your Lordships who attended the Second Reading debate of this Bill will recollect, perhaps, some of the examples which I quoted, which were given to me after a considerable amount of research by various bodies in both England and Scotland.

Acting within that framework—that is to say, the conservation of badgers where it is desirable and the ending of cruelty in all cases, but the preservation of the rights of the occupier of the land where the badger makes a nuisance of himself —Clause 1 of this Bill of course stops anybody from wilfully killing, injuring or taking, or attempting to kill, injure or take a badger. But if your Lordships accept Amendment No. 21, standing in the name of the noble Earl, Lord Cranbrook, of course a class of authorised persons will arise, and under paragraph (a) the owner or occupier will be allowed, as I understand it, to kill badgers or to take steps to remove their setts if they are causing a nuisance.

What worries me is the effect of Clause 2—that is to say, this clause—if it is written into the Bill; and the first thing which perhaps noble Lords will not understand is in fact the meaning of the word "cruelty". When, in 1911, the Act was passed, those who framed it in fact possessed a good deal more understanding of the problem of animals, wild and domesticated, than perhaps we realise. But may I say that an intention to be cruel need not be proved in a prosecution of this nature. So there is no element of wilful cruelty here, no element of sadistic cruelty, no wilful intent to cause suffering to an animal. The test is, first, whether pain or suffering is inflicted upon the animal and, secondly, if the answer to that first question is "Yes", whether it is inflicted without good reason. What worries me about this clause of the Bill is that a farmer or landowner may, by reason of the fact that he is an authorised person, not be liable to prosecution under Clause 1 of the Bill but in certain circumstances may render himself liable to prosecution and conviction under this new clause.

One can give three examples of how this may come about. Suppose you have a rogue badger which the farmer decides must be shot—and I entreat your Lordships to accept that, however few, rogue badgers do exist—and suppose the farmer stays up with intent to shoot it but merely wounds it so that it runs away. He cannot be prosecuted, of course, under Clause 1 but, so far as I can see, he can be prosecuted and convicted, and will have very little defence, under this new clause. If I may pause there, he will have no defence under Amendment No. 9A, if your Lordships accept it, paragraph (c) of which reads: the unavoidable killing or injuring of any badger as an incidental result of a lawful action", because if the farmer had been a better shot he would not merely have wounded the creature. I hope I am not being facetious about this, but I see it as a real difficulty.

The second example of where I think trouble can ensue is in the case of someone who puts up a fox snare, which, as I told your Lordships on a previous occasion, is a necessary and very frequent way of controlling foxes in my part of the world, where we have no hunt—at any rate, not a hunt that hunts—and where the fox snare is put in a position which is suitable for getting a fox but a badger runs into it. It would be perfectly open to a ruthless prosecuting solicitor in England to say to the defendant in those circumstances, "You knew badgers were about; you knew that this was a part of the world where they were wont to travel. In the circumstances, to put a fox snare up amounts to cruelty"; and he, too, would be guilty under this new clause. The third example—and here I am on less sure ground because I have never taken part in a fox hunt—is this. What is the position of a huntsman if a hunt comes upon a badger and the animal is killed? So far as I can see, again there would be a risk, to put it no higher than that, that the officials of the hunt could be prosecuted under this new clause, because, as I said at the beginning, the intention to be cruel need not be proved.

I give these examples hoping that the noble Earl, Lord Arran, will take them into account. I repeat: we are all concerned to end cruelty to the badger, let alone whether such cruelty forms part of other people's enjoyment. But equally, in my submission, we must write into this Bill—which, as the noble and learned Viscount, Lord Dilhorne, has said, and said repeatedly, is a criminal Bill in the sense that it creates criminal responsibility—a defence to an owner or occupier of land who is seeking to do something which is inherently legal (and we all agree should be inherently legal) but which for one or other of the reasons I have suggested would fall into the ambit of this new clause.

VISCOUNT DILHORNE

I said at an earlier stage when we were discussing this clause that if it were carried into the the Bill it would be necessary to make some adjustment to fit it in with Amendment 21 if that Amendment were passed. The noble Earl has formidably supported those observations. If this Amendment is carried into the Bill there must be some consequential changes made either in this clause on Report or preferably in Amendment No. 21 so that you do not get persons who are acting lawfully and behaving perfectly reasonably being rendered liable to prosecution under this new clause which we are discussing. This has to be done if this is carried and I hope that the noble Earl, Lord Arran, will accept this.

The other point which the noble Earl, Lord Mansfield, drew attention to was that the offence created by this new clause could be committed without any intent, or, as lawyers call it, mens rea. I think it should be made clear, if there is any doubt about it, that what this clause is directed at is deliberate treatment of badgers which in the opinion of magistrates and courts is in fact cruel ill-treatment. I personally am prepared to accept an objective test as to whether the treatment in fact amounts to cruel ill-treatment, but I must say that I think it should be made clear, if it is not clear already by the drafting, that that conduct for which a man may be convicted must be conduct which is deliberately engaged in by him. I do not know whether I have made myself clear and I do not know whether the noble Earl, Lord Mansfield, would accept that but I think that this is the right concept for this clause and it may be, as I think the noble Baroness indicated, that the clause wants amending and perhaps drastically revising to bring it up. I hope that the noble Earl, Lord Arran, will give the assurance that he recognises the need for adjusting a later Amendment if any clause of this kind is carried into the Bill.

LORD BIRKETT

I wonder whether the noble and learned Viscount could help me in a problem which the noble Earl, Lord Mansfield, brought up. I am at a loss to understand whether it is possible to have such a thing as "accidental cruelty". "Accidental ill-treatment" I can understand from the instances which the noble Earl gave, but does not the word cruelty (and I am asking it in a legal sense because I do not know) automatically, by its very nature, imply something beyond an accident—an intention?

LORD FOOT

The word "cruelty" is used here preceding the word "ill-treatment" and is not indicating that there has to be any particular cruel intent.

THE EARL OF CRANBROOK

Is it not that under the Protection of Animals Act 1911 it has been clearly held that the words "cruelly ill-treat" involve mens rea, and without mens rea there cannot be a conviction? I am beginning to find myself in some difficulty with noble Lords who are learned in the law in trying to define what "cruelty" is and whether or not—and this is the point which I think is most important—paragraph (c) of the new clause under 9A covers accidental actions which result in pain or suffering being inflicted. I was not over-impressed with the arguments of the noble Earl, Lord Mansfield. I think he was suggesting that somebody like myself who rather frequently shoots his pheasants behind because he is a bad shot is really liable to prosecution under the 1911 Act for going out at all. I know that when the Conservation of Seals Act went through your Lordships' House it was intended to cover—and we were assured that it did cover—actions legal in themselves which caused injury, which had they been done deliberately would have been cruel. Perhaps the noble and learned Viscount will reassure me—because I was assured then—that that would cover the sort of action which the noble Earl was talking about.

VISCOUNT DILHORNE

This draws attention to Amendment No. 9A, paragraph (c). That as it stands does not apply to ill-treatment. It only refers to— the unavoidable killing or injury to any badger …". You can ill-treat a badger without killing it and maybe without injuring it. This clause is wider and that does not give an escape clause. That is why I submit to the Committee that some adjustment will be necessary. I am grateful to the noble Lord, Lord Foot, for referring to the decision under the 1911 Act. I am afraid I was not aware of it but if it stands it is a good one. I think there should be no doubt about what we are doing here. The offence, if this clause is agreed to, would involve that degree of mens rea.

LORD DONALDSON OF KINGS-BRIDGE

Could we have final clarification on this? The noble Earl, Lord Mansfield, has said that mens rea is not involved under the 1911 Act and the noble Lord, Lord Foot, says it is. I think it would be interesting to know which is the truth, if this knowledge is available to this Committee.

THE EARL OF MANSFIELD

May I give my interpretation? The mind must run with the offence, in exactly the same way as if one is out and about with a gun and not shooting pheasants in the tail and one sees a poaching cat and shoots it dead as a doornail with one shot in the head, that is cruelty. There is no intention to commit cruelty at all, but indeed one would be liable, not I may say under the 1911 Act, but it is a good example. If one sees a dog which has been worrying one's sheep and as it departs one shoots it dead, that is also an offence. There is no intent to commit cruelty but cruelty has been committed, because as I said the intention to commit cruelty need not be proved but obviously the mind must run with the offence.

If you shoot your pheasant very low and hit and enter rather behind and you then shoot a cat which is lurking behind a bush, that is accidental cruelty. It may hurt the cat but it is not an offence. My point is that by taking part in an act such as trying to shoot a badger which is a rogue badger, in the circumstances of being an authorised person, one is perfectly entitled to do that but merely because one is not a very good shot one would in fact be liable under this new clause. May I say to the noble Earl, Lord Cranbrook, that I think if his pheasants were part of the creatures which came into the 1911 Act possibly he would be guilty every time he goes out shooting; but I do not think they are, and therefore perhaps he is lucky. But I hope he will ask me to shoot notwithstanding that observation.

LORD FOOT

The reason why I was able to say that there was authority for saying mens rea was essential in a prosecution under the Protection of Animals Act 1911 is that just before I came into the House I was looking at Stone's Justices Manual and I found this was stated in the notes in exactly that form and it quoted the case, but I am afraid I cannot quite remember what it was.

BARONESS YOUNG

I am sure it is extremely dangerous for anybody who is not a lawyer to attempt to enter into this frightfully technical discussion. I think I said when speaking to the substantive Amendment at the beginning that the Government had no objection in principle to this clause but that we did feel, and my advice is, that it needs some redrafting. I think the only conclusion to be drawn from the enormous amount of valuable advice given this afternoon from all sides of the Committee substantiates that point. There should be time to look at this question again between now and Report stage. On this particular point I am advised that it would ultimately be a question for the courts to decide. I think I will leave that point at this stage because this is a matter which really must be looked at again and the clause redrafted before Report stage.

LORD CHORLEY

The answer, surely, is to pass this clause now and, if it needs to be amended in detail, then let it be dealt with at Report stage. That is what Report stage is for. It is only in cases where an Amendment is so completely out of drafting that it cannot sensibly be passed by the Committee in its original form that it should be withdrawn and redrafted. When it is as good a clause as this, we should put our imprimatur on it. If it has to be improved, then it can be improved on Report stage. That is why we have a Report stage.

THE EARL OF ARRAN

The last sentences uttered were the most comprehensible of any that I have heard this afternoon—second only to the statement of the noble Baroness, who made herself very clear. She said that she did not like the look of the clause but that the Government would like to examine it. I should like to think that she may be able to assure me that they will do so with a benevolent eye. It would certainly make the passage of the Bill very much easier were it to have Government clarification (I almost said Government "support"; but they are neutral) of points which are in doubt in the minds of some noble Lords—in some cases rather devious minds.

Clause 2 [Selling of live badgers]:

THE EARL OF CRANBROOK

This Amendment is a drafting one leading up to paragraph (b) in Amendment 12. I think it would have been necessary in any case to have made such a provision in order to cover zoological gardens. I beg to move.

Amendment moved— Page 1, line 11, after ("If") insert (", save as may be authorised by licence granted under section 3 of this Act,").—(The Earl of Cranbrook.)

VISCOUNT DILHORNE: moved Amendment No. 4A: Page 1, line 11, leave out first ("for sale").

The noble and learned Viscount said: This is an Amendment which raises a question which I think is an important one: whether it really is the case that badgers are suitable as pets. That is not the only question which is raised by this Amendment for I also think that if this Amendment is carried it will stop what may prove to be quite a considerable loophole in Clause 2 of the Bill. I have never kept a badger. I know that the noble Earl, Lord Arran, has. I had a cousin who once kept one. He was very fond of it. I am sure that the noble Earl, Lord Arran, is very fond of his five badgers. Whether they are quite as fond of him is a matter which one does not know. I very much wonder whether it is right that these wild animals should be kept in captivity in any circumstances. I would much rather they were not. If this Amendment is accepted it will not be legal to have them in possession whether for sale or as pets. Clause 2 reads: If any person sells, offers for sale or has in his possession for sale, any live badger he shall he guilty of an offence against this Act. After amendment it would read: … has in his possession any live badger …". That is, subject to possession by zoological gardens and matters of that sort which we shall deal with later. As a general proposition, I submit that badgers are not suitable as pets and that one ought not to make it lawful, as this Bill at present does, to keep badgers as pets.

The second reason for this Amendment is more of a legal character. Under Clause 2 as it stands you would if you were to secure a conviction have to prove that a man had the badger in his possession for sale. You would have to prove that to the satisfaction of the court beyond all reasonable doubt. It would be the easiest thing. I should have thought, for a defendant to come forward and say, "No, I did not have this badger for sale. It was a pet." Unless that defence could be demolished, an acquittal would result. So from the inclusion of the words "for sale" you may get quite a considerable loophole in the operation of this measure, a loophole that I should like to see shut. We can do it quite simply, just by leaving out the words "for sale".

LORD FOOT

I think there is a misunderstanding here. The Amendment reads leave out first ('for sale')"; whereas I think the noble and learned Viscount is suggesting that we should leave out the second "for sale".

VISCOUNT DILHORNE

The Amendment that I handed in was to leave out the second "for sale". That is the one I intended to leave out. There has been such a permutation and changeover of Amendments in this Bill—the noble Earl, Lord Arran, has shuffled them about like a pack that I think this one got into the wrong place. May I take it that it is an error and that I am moving to leave out the second "for sale", and not the first, which makes a nonsense?

I think that I have said all that I need to say in support of this Amendment. As the noble Earl, Lord Arran, will realise, it is not an Amendment hostile to the principles of his Bill, nor is it in any sense hostile to his keeping of pet badgers. I am sure that he does the best he can for them. But I suggest that in future it would be better if badgers were not kept as pets.

LORD NUNBURNHOLME

Might I ask the noble and learned Viscount whether a man who rears a cub badger—the mother may have died—and brings it up to the age when it can look after itself when it is turned loose, is going to be guilty of an offence?

THE EARL OF CRANBROOK

This is a point that I was going to raise and one which I think the noble and learned Viscount has not really considered. There are occasions when badger cubs, fox cubs and otter cubs fall into somebody's possession, entirely legally, without any deliberate intention of getting them for sale. I agree they are most unsuitable pets they are charming when young but become troublesome when old. If you talk to any zoo, you will find that they are constantly being offered fox and badger and other cubs at the end of the summer, when people who have acquired them for their children find that the cubs are a nuisance and want to get rid of them. On the other hand, there are people who get cubs, rear them and succeed in getting them to re-establish themselves in the wild, and I should not want to discourage that. There is one further consideration which we ought to have in mind. I do not think that it would be covered by my Amendment No. 12. Once zoos start getting well-established breeding stocks of badgers inside the zoo, they will want to sell the badgers to other zoos and the acceptance of the noble and learned Viscount's Amendment might prevent that.

VISCOUNT DILHORNE

Certainly there was no intention of in any way preventing the keeping of badgers in zoos, nor was there any intention behind this Amendment of preventing the rearing of a cub which had lost its mother, or anything of that sort. But a balance has to be struck. Leaving on one side the zoological gardens, for which special provision could be made, I am of the view that rather than run the risk of having a lot of badgers being kept in hutches in back streets all over the place, and someone saying, "You have this badger for sale" and the owner says, "No, it is a pet"—and that would be a let-out for the owner—we should make this alteration. If your Lordships like, it may be made following a subsequent alteration to deal with the two particular cases raised by the noble Lord, Lord Nunburnholme, and the noble Earl, Lord Cranbrook. As a general rule I should like to see it established that the keeping of badgers as pets is not something that we look upon with favour.

LORD BIRKETT

If the noble and learned Viscount's Amendment is accepted, will it be possible to amend it on Report in some way so as to make sure that those people who already have badgers as pets are not forced to part with them within a month of the Bill's becoming law, and particularly in respect of badgers which may be so tame that they will have nowhere to go and be ill-equipped to look after themselves in a wild state? There must be a way to ensure that the provision would apply only to badgers acquired as pets from the date that the Bill becomes law.

VISCOUNT MASSEREENE AND FERRARD

If the noble and learned Viscount objects to badgers being kept as pets, I cannot understand why he does not object to having foxes and otters as pets. They are far wider-ranging animals than a badger, and if it is cruel to keep a badger as a pet I should have thought it was cruel to keep a fox or an otter as a pet.

VISCOUNT DILHORNE

They are different animals.

VISCOUNT MASSEREENE AND FERRARD

But they are far more wide-ranging and do not adapt themselves to confinement perhaps so easily as does a badger.

THE EARL OF ARRAN

I confess that three or four days ago I should have spoken on this subject differently from the way in which I propose to speak today. I think it was on Thursday night that four out of our five badgers, almost as if it were in anticipation of this debate, not only decided to abandon their sett but also to leave us and go away. This has rather taken the heart out of me and made me think again. Badgers can be pets but, as the noble Earl has said they never make easy pets and when they feel that they have had enough of the human race they tend to revert to the place from whence they came. There is of necessity much heartbreak at the end. But to restrain an animal from leading its natural life if it wishes so to do is, to me, wrong. It is, of course, a great sadness to us that we shall not be able to take our little embryonic colony to Scotland, but if the badgers think it time to go, who are we to stand in their way? If there is one thing that we do not want, it is to have badgers in cages in back gardens. As a "criminal" under the Bill as it may be drafted, naturally I am keen to be shriven, but at the same time, according to the way it seems to be going, the Bill will achieve that most important of purposes; namely, allowing badgers to be taken for conservation purposes, which, if a licence is issued, could mean permission to take badgers to establish a colony on one's own property. Perhaps I am a little too personally involved in this matter to recommend strongly one way or the other. I would rather leave it to your Lordships.

BARONESS YOUNG

I find myself in some difficulty because I realise that the Amendment I thought we were discussing in fact is not the Amendment as it down on the Marshalled List. I do not wish in any sense to blame anyone for that, but I refer to it by way of apology for anything that I may subsequently say. If this Amendment were accepted, it would mean, as the noble and learned Viscount, Lord Dilhorne, has said, that the possession of a badger would be an offence. It seems to me that this is very much a matter on which the Committee must make up their minds. My advice is that if the Amendment were included in the Bill we should have to look again at Amendment No. 12 and the Amendments dealing with licensing in order to permit badgers to be kept for some recognised purposes.

VISCOUNT DILHORNE

I have listened to the discussion and I recognise full well that if the Amendment is carried there will have to be some consequential Amendments on Report stage, on the assumption that other Amendments which are coming up for discussion are carried also. I recognise that provision could be made for the special cases to which reference has been made. I feel that the Committee should have the opportunity to express their opinion on the question whether, as a general principle, and assuming that provision can be made for that adjustment and those special cases, people ought lawfully to be allowed to keep badgers as pets. So I do not propose to withdraw the Amendment, if anyone else is prepared to support me in the Division Lobby.

THE DEPUTY CHAIRMAN OF COMMITTEES (BARONESS WOOTTON OF ABINGER)

The Question is that Amendment 4A, as amended, to leave out the second occurrence of "for sale" be agreed to. As many of that opinion say "Content". To the contrary "Not content". I think the "Contents" have it. Clear the Bar.

THE DEPUTY CHAIRMAN OF COMMITTEES (LORD DOUGLAS OF BARLOCH)

Tellers for the Not-Contents have not been appointed pursuant to Standing Order No. 53. A Division therefore cannot take place, and I declare that the "Contents" have it.

Clause 2, as amended, agreed to.

5.30 p.m.

THE EARL OF CRANBROOK moved Amendment No. 6:

After Clause 2, insert the following new clause:

Restriction of marking and ringing

". If, save as may be authorised by licence granted under section 3 of this Act, any person marks or attaches any ring, collar, tag or other identifying device to, any badger, other than one which is domesticated or ordinarily kept in captivity, he shall be guilty of an offence against this Act."

The noble Earl said: During the Second Reading debate I suggested that this Bill might be turned into a model conservation Bill which could be applicable to other creatures of every description and there are a large number of Amendments which I put down which are designed for that end. I am very grateful to the noble Earl for helping me to produce Amendments which I hope now satisfy him and which I am certain will satisfy all conservationists. Your Lordships will know that a great deal can be learnt by capturing, marking, releasing again and again every sort of creature, whether badgers, birds or butterflies. A great deal can be learnt about their migration, their home range, their behaviour, their longevity and the like. That has become such common practice that when the first Protection of Birds Act was passed in 1954 special provision was made to allow for the ringing of rare birds. However, experience showed that capturing and ringing by large numbers of relatively inexperienced people could cause not only unnecessary mortality and damage in the capturing but also in puting on inappropriate or badly applied rings. When the 1967 Act was passed, provision was made to allow bird ringing only by licence from the Nature Conservancy Council.

Birds have rather strong, scaly legs with firm skins, and they can suffer a good deal of friction without damage; whereas badgers, in common with other mammals, have rather soft, delicate skins which can easily be injured by ringing and attaching marks to them. Moreover, in mammals much more sophisticated methods of identification can be used, like tracking moles with radioactive rings attached to them or by attaching to larger animals transistorised wireless transmitters so that the activities of the animals can be followed over a long period. Those of us who are interested in this branch of science have found by experience that a number of animals have been damaged by people who do not know what they are about in trying to mark them and, therefore, that for mammals the same sort of regulation by licence from the Nature Conservancy Council is necessary. Certainly the Mammals Society, the scientific society most directly concerned with this, is wholeheartedly in favour of it and I hope your Lordships will also wish to support it. I beg to move.

THE EARL OF CRANBROOK moved Amendment No. 7:

After Clause 2 insert the following new clause:

Special protection for badgers

".—(1) Where after consultation with the Natural Environment Research Council it appears to the Secretary of State necessary for the proper conservation of badgers he may by order declare any area specified in the order to be an area of special protection for badgers.

(2) Any order made under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament and may be varied or revoked by a subsequent order made in like manner."

The noble Earl said: It became quite clear during the Second Reading—and most of us accepted the fact—that over most of England badgers are relatively common, but there are places where they are rare and in danger of disappearing. This Amendment provides that, in those areas where special protection is necessary, the Secretary of State after consultation with the Natural Environment Research Council—because the Nature Conservancy Council now operates under NERC—may make an Order protecting badgers in those particular areas. If the Bill which is to come before your Lordships next Monday is passed, there will have to be an Amendment to this Act substituting the Nature Conservancy Council for the Natural Environment Research Council.

LORD FOOT

I hope that due consideration will be given to this Amendment, because it is the most important one we shall have before us this afternoon. Whether it be right or whether it be wrong, as I see it it strikes at the whole principle and heart of the Bill. I think it is vitally important that the Committee should recognise what they are being invited to do. As I understand it, the general principles behind this Bill are, first, that the badgers in the ordinary way are harmless creatures; secondly, that it is desirable that the fauna should be preserved and protected; and, thirdly, except in special cases, that no one should be allowed to kill or take badgers or take them into captivity.

Let it be clearly understood that if this Amendment is carried the Bill assumes an entirely different aspect. If this Bill, as it stands, is carried, those general principles and purposes about which I have spoken would then become the law of the land. Under this Amendment, the measures contained in the Bill would become the law of the land only if the Secretary of State in his complete discretion decided to activate the clauses of the Bill by making an Order in Council; and if he decided that he did not want to activate the Bill, he could refrain from making any Order in Council and the whole purpose of the Bill, so far as it is concerned with killing or injuring badgers, would be thwarted and frustrated. If we agree to this Amendment, I suggest to my noble friend that his Bill might be almost completely emasculated. Therefore, I hope that the Committee will ponder carefully before they consider accepting the Amendment. To my mind, if the general purposes and principles to which I have referred are sound, then the proper thing is to protect badgers in all parts of the country equally, and not to try to select particular areas where the law shall apply and leave other areas where it does not apply.

There is, however, in my view, one defect in the Bill as it stands against which there is not at the present time a sufficient safeguard. I can see nothing in the Bill which allows a person who has on his land a rogue badger (as it has been called), which is not harmless, but is injurious, lawfully to kill that badger. I would suggest to my noble friend that something of that kind should be introduced into the Bill at some stage in order to deal with the case of the non-harmless badger, and it may well be that the matter could be best dealt with if a form of words was adopted and introduced similar to those contained in the noble Earl's Amendment No. 8, in subsection (2) so that words might be inserted into the Bill something to this effect: that no one shall be found guilty of an offence under section I of this Act by reason of the killing or taking or attempted killing or taking of any badger or by reason of injuring any badger in the course of taking it or attempting to kill or take it if he satisfies the court before whom he is charged that his action was necessary for the purpose of preventing serious damage to land, crops, poultry or any other form of property or for the purpose of preventing the spreading of disease. I think that those words are wholly admirable. I suggest for the consideration of the Committee that it would be taking a dangerous course and would be knocking this Bill endways if we were to allow the Executive to decide whether the will of Parliament was to be brought into effect at all.

We considered this point in a rather different form the other day in the Solicitors (Amendment) Bill. In that case there was a provision at the end of the Bill which said that the Lord Chancellor was to decide at what stage and when the different clauses of the Bill were to be brought into effect. I took leave to point out at that time that this was a matter of some constitutional importance, because theoretically, at any rate, the Lord Chancellor could, if he were so minded, thwart the will of Parliament by not bringing the Bill into effect or by not bringing some part of it into effect. What we are invited to do here is something similar. We are invited to say what the law of the land should be, and we are going to leave it to the Executive to decide whether it is going to be implemented and activated and so become the law of the land. I suggest that that is objectionable in both principle and practice. I hope my noble friend will resist this Amendment and that it will be defeated.

THE EARL OF CRANBROOK

If I may intervene for a moment, may I say that I did not address myself to the problem the noble Lord has raised because I did not think it came in under this Amendment. It will be perfectly possible to have protection all over and special protection in certain places where necessary. I had intended to raise the point, and I think it first arises under my Amendment No. 8, which brings in the category of "authorised persons". It is to cover them that this clause is necessary. I think it might be appropriate if we debated this point under my Amendment No. 8 and not under this Amendment which does not raise that problem.

LORD FOOT

The noble Earl has misunderstood me, and no doubt it is entirely my fault. My reference to the omission from the Bill, as it stands, of any suitable provision about the rogue badger was something said almost as an aside. I am addressing myself now to Amendment No. 7.

THE EARL OF CRANBROOK

I agree that my Amendment No. 7, if Amendment No. 8 is not passed, would perhaps be tautologous. There would be an absolute provision, but there would be an additional provision in certain areas. I had not thought that the whole problem of the "authorised person", which is the fundamental point that is effected, would be raised in debate until we got to my Amendment No. 8. Perhaps the noble Lord would agree to raise it on that Amendment, and not on this one.

LORD FOOT

Perhaps I may say one word to try to clear this matter up. Surely in trying to decide what is the effect of Amendment No. 7 we have to take Amendments Nos. 7 and 8 together: because No. 7 says that it shall be for the Secretary of State, where he thinks fit, to specify certain areas and areas of special protection. Then Clause 8 says what shall be the effect of that power, and how, unless an Order has been made, an authorised person shall not be guilty of an offence under Section 1 by killing. Then if you want to know what an "authorised person" is, you have to look up Amendment No. 21, paragraph (a). The matter I am concerned about is that the implementation of the principles of this Bill should be left to the discretion of the Executive.

THE EARL OF CRANBROOK

I think it might be for the convenience of the Committee if I now deal with Amendment No. 8 as well as No. 7. As I explained earlier, this is the kind of form which all of us who are interested in conservation feel that a conservation Bill should take. The general principle which has governed conservation—it is the modern way of looking at the preservation of our countryside and the animals and plants that live in it—is that where an animal, a bird, a plant or anything is not rare, we do not think the law should prohibit the taking or killing of that animal or bird, or the picking of the plant, because all experience of Acts introducing complete protection in the past has been that sooner or later they have to be amended. The classical example is the old Conservation of Seals Act, under which grey seals had complete protection until the numbers increased so much that they were destroying the habitat in which they lived, and because they were left to multiply too greatly, the number that had to be killed to restore the status quo was much larger than it had been.

One could quote examples of that sort where the total protection of animals which are relatively common has been an utter failure because they have increased so much that they damage the very land they live upon, and action has to be taken. The modern way of looking at the conservation of the countryside is not to allow the animals to increase until disaster occurs, nor to allow them to decrease in numbers so much that a disaster occurs in the other direction. The Bill which all interested in conservation would like to see is that which I have tried by my Amendments to turn this Bill into: one which would leave an animal, plant, or bird unprotected by the law where its status in numbers indicated that it did not need protection. At the same time, one introduces the clause about which we have argued so much this afternoon, trying to ensure that any killing of such animals is done as humanely as possible, as we did under the Conservation of Seals Act. That to any conservationist is a basic and fundamental principle. You do not start introducing protection by law until the status of the animal is in danger, and that is what the two provisions made by Amendments Nos. 7 and 8 are trying to secure.

So far as the authorised persons are concerned, I am afraid that I must take a further Amendment into consideration —Amendment No. 21—where the authorised person, apart from the person authorised for scientific purposes, is the owner or occupier of the land. That in itself is intended to be a protective clause. By and large, most landlords like to see animals and birds of almost every description on their land; and most of them will try to secure that there is a reasonable number of badgers, otters, birds (call them what you may) on their land. Of course it will not prevent the man who wishes to destroy his badgers from destroying them. But if he destroys so many that the species becomes endangered in that part of the world, that is the time when the Nature Conservancy will advise the Minister. That is exactly the same principle that has been followed in the Conservation of Seals Act. The Minister is advised whether or not seals should be protected in particular areas, and whether or not killing should be allowed. This is the form which any conservation Act must take. I believe that relying on the landowner to protect the animals that have been placed into his charge by reason of him owning the land will be a great step forward.

I tried to introduce a clause to this effect in the Criminal Damage Act when we were considering the protection of plants and trees. The noble Lord who sits on the Woolsack then told me that the proper place to bring this type of authorised person in was in a conservation Bill, and that is why I have referred to that this afternoon. If I may sum up what may have been a rather incoherent speech, I believe that the fundamental principles of conservation are that you should give no legal protection to an animal until you are advised by the scientists concerned that it is necessary. You then give it protection. I believe that so far as ordinary protection of animals and plants is concerned, by and large the owner or occupier is the man who is most concerned with protecting the animals and plants on his land, and that he will deal with this in general, although there are bound to be exceptions. We saw that under the Protection of Birds Act. It is the owner or occupier who is the authorised person under the Protection of Birds Act for dealing with rogue birds.

THE EARL OF ARRAN

It is the owner, occupier or whoever he chooses to invite on to his land.

THE EARL OF CRANBROOK

That is the principle I am quite certain all conservationists would wish us to follow. I earnestly entreat your Lordships to accept that as a proper way of conserving badgers, bees, butterflies, or what have you.

LORD COLERIDGE

I should like to speak to the three points the noble Earl, Lord Cranbrook, has raised, regarding Amendments Nos. 7 and 8 and the consequential Amendment, Amendment No. 21, in which he defines the authorised people. I do not wish to dissent from anything the noble Earl says on the subject of conservation. He is an acknowledged expert, and I am certainly not. This Bill set out to protect the badger rather than merely conserve him. Protection automatically conserves, whereas conservation does not in all cases protect, and I should like to go back to the original concept of the Bill, as put forward by the noble Earl, Lord Arran.

In Amendment No. 8 we have the phrase, "authorised person". In Lord Cranbrook's interpretation of the phrase, as set out in Amendment No. 21, which is not the scientific side, but the other side, an "authorised person" would be, inter alia, any person shown to have been authorised by the owner or occupier of the land. I venture to suggest that this opens the door a little too wide. It would permit the unscrupulous owner or occupier—and they do exist—in allowing almost anybody on their land, probably for financial considerations, to dig for badgers. These people might come from neighbouring cities as well as the locals who sometimes enjoy this unpleasant sport. I wonder whether the noble Earl would consider narrowing that definition of authorised persons to owners and occupiers, or their servants, or some such term as that, which would make it quite clear that a foreigner from without the gates could not be brought in, allowed to pay his "fiver", and dig for badgers.

5.58 p.m.

VISCOUNT MASSEREENE AND FERRARD

I should like to speak in support of my noble friend. Especially since the war we have had very odd people owning land—that also applies to occupiers and tenants, too. I feel that this Amendment drives a coach and four right through the Bill. The object of the Bill was to protect badgers. I agree that the original Bill, as drafted, was perhaps a little too strong. I know several people who own land who are unsuited regarding protecting the wild nature of their land. I will not waste any more time; but this Amendment opens the Bill very wide indeed. I fear the badger will not have the protection we had hoped for.

LORD SOMERS

I feel foolhardy in in questioning anything that the noble Earl, Lord Cranbrook, says, but I agree with other noble Lords: I do not like the first paragraph in Amendment No. 21 which defines the authorised person. When I lived in Wiltshire, I remember very well seeing a farmworker go out every evening with his dog and gun and come back plus a badger. This was not always the case, but it was generally so. I do not think he realised what he was doing, and I do not think the owner of the land even knew that he was doing it. He just gave a general permission and that is how it stood. I think one must try to make it a little tighter than that. One could do it by saying, "On any particular occasion permission may be obtained from the owner of the land" or words to that effect. I do not like it as it stands because it seems to me to be practically a wrecking Amendment. It allows anybody to do anything so long as the land belongs to him.

VISCOUNT DILHORNE

The Amendment under discussion is Amendment No. 7. The Amendment which the noble Lord, Lord Somers, has been referring to is Amendment No. 21. If I may, I would suggest to the Committee that it would be much better to leave the discussion on Amendment No. 21 until we get to it. There are various observations I should like to make in regard to that Amendment, if we ever get to it. The only Amendment before us at the moment is the paving Amendment No. 7 and that is to provide for special conservation areas where badgers would have special protection. I thought there was great force in what the noble Earl said when he moved this Amendment, that if you go too far in seeking to protect wild animals it can become self-defeating. I should have thought what he said about the wisdom of relating the conservation areas to where conservation was really necessary (quite apart from the question of cruelty) had great force, and if he proposes to persist in this Amendment I should certainly think it right to give him my support, for what it is worth.

LORD BIRKETT

It seems to me to be very difficult to consider Amendment No. 7 on its own. I was glad that the noble Earl, Lord Cranbrook, himself took Amendments 7, 8 and 21 together, because as I understand it, Amendment No. 7 sets up special conservation areas whereas, until this moment, in the Bill as drafted I thought that the whole of the Kingdom was a special conservation area. Amendment No. 8 says that, except in those areas, you may take and kill badgers, and even in those areas you may if they have been shown to be damaging crops—and various other phrases included in Amendment No. 8. Then it says in Amendment 21 that the people authorised to do such things are as set out in that Amendment. I should have the greatest trouble in voting for Amendment No. 7 if I thought that Amendments Nos. 8 and 21 were hanging with their great weight over it. I should be much more inclined not to vote for Amendment No. 7 and to say that without it the whole Kingdom will, after all, be a conservation area, which is rather what I thought we all intended in the first place.

LORD CRAIGTON

I should like to support my noble friend Lord Cranbrook. What he proposes is simply in line with what we all know to be the right way to carry out any form of conservation. I am sure we shall be sorry in this House if we do not agree with what he has suggested.

LADY RUTHVEN OF FREELAND

I think this is a complete misunderstanding. The intention of this Bill is to protect badgers and therefore it means that badgers should be protected over the whole country, whether it is in England, Wales or Scotland. I should be unable to support the noble Earl, Lord Cranbrook, although I realise the reasons behind his Amendments. He is, of course, a conservationist, and I am a person for protecting the animals, which I think are being destroyed in a great many places. Particularly is this true in Sussex, where there are practically no badgers left.

THE EARL OF CORK AND ORRERY

My noble friend who has just sat down has surely hit the nail on the head, not for the first time, by following up the argument put by the noble Lord, Lord Foot. I do not think that in another place this Amendment would be allowed (not that that would affect us necessarily) because it changes the purport of the Bill. My noble friend has said that it is intended to change the purport of the Bill, and that is perfectly reasonable, but I wonder whether in fact when we conceded this Bill a Second Reading we were giving a Second Reading to a Bill about conservation. Was that debated at the time? I am not at all sure that it was. We should keep our eyes and our minds wide open before we decide that by accepting this Amendment we are going to change the Bill. My noble friend is absolutely right: if we are to have a Bill about protecting badgers—which this is, so far—then we want to protect badgers all over the country and ways must be found by licensing or otherwise to authorise persons within that total area to cull, kill, take or otherwise deal with badgers as may be necessary or desirable. But as the noble Lord, Lord Foot, has pointed out, this Amendment will make it absolutely certain that no badger in the country is protected at all, until something is done—something which in fact may not be done. That is not what we are here for and therefore with great respect, and with the greatest sympathy towards my noble friend Lord Cranbrook, I should oppose this Amendment.

THE EARL OF MANSFIELD

One of the more refreshing elements of this debate is the complete dichotomy of opinion, not only on Party lines but even among those who share the same Bench. May I express my support to the noble Earl, Lord Cranbrook, in this series of Amendments, although I appreciate that we are only speaking to Amendment No. 7. When I spoke on Second Reading I endeavoured to point out that the level of population of badgers varied considerably in different parts of the country. For instance, in my part of the world, in central Scotland, they have increased remarkably in the last 15 years, and since that Second Reading debate in your Lordships' House I have had further information from other parts of England and Wales where the badger is also on the increase, notably in Gloucestershire. It is also true to say that there are indications coming from the Ministry of Agriculture, Fisheries and Food that in certain circumstances badgers are spreaders of bovine turberculosis. I say this, not to inject some element of scare into this debate but to point out that conservation does not mean that every badger throughout the length and breadth of the land has to be protected in any circumstances, or indeed in all circumstances.

If we may return to the Bill for a moment, Clause 1 says that the ordinary person cannot touch a badger at all. That surely must be a good clause. Then we have a class of person, the authorised person, who in the normal course of events will be able to deal with a rogue badger or a badger which has made its sett in an inconvenient position; that is to say, the owner or occupier of land. Thirdly, as I understand it, we shall have what the noble Lord, Lord Foot, calls "executive decisions"; that is to say, decisions to set up special areas where the population of badgers is so small that, notwithstanding the fact that there may be an inconvenient badger on a man's land, he will not be able to do anything about it unless it is actually causing serious injury to the crop or to the land.

LORD FOOT

If I may interrupt the noble Earl, I think he is wrong and I am right. In fact in the Bill as it stands there is no reference to any person being specially authorised to deal with rogue badgers, or anything of that kind. As I understand it, under Clause 1 of the Bill as it stands at present everybody is prohibited from doing the things which are forbidden there, and the only persons who can take badgers are those who have a licence from the Ministry of Agriculture, Fisheries and Food, and then only for three specific purposes, for scientific or educational purposes, for establishing breeding colonies of badgers and for the conservation of badgers. The Bill specifies only two categories of people: first, the general public, who cannot take or kill badgers at all, nationally or otherwise and the only other persons who can are those who have this special licence. My criticism of the Bill just now was that it does not at present include some provision for a person legitimately and lawfully to deal with the rogue badger. I think that that should be the third category.

The EARL OF MANSFIELD

I fully agree with the noble Lord, Lord Foot. The Bill as it stands is silent save as to Clause 1. One must read the Bill with the proposed Amendments and try to make a comprehensive whole out of it. If that is done and one goes forward one can see approximately in what shape the Bill will develop. I am not going to be rude enough to say that the noble Earl, Lord Arran, put his Bill up on Second Reading as a "cock shy", but he was good enough to say immediately after he had made his introductory remarks that he hoped the Bill would be amended in your Lordships' House. That is what we are seeking to do. I do not suppose that the noble Earl for one moment thought that this piece of paper would pass through your Lordships' House in all its stages without being amended, and I doubt that he wanted it to. What I am seeking to do is to present to your Lordships the shape that we hope the Bill will take on Third Reading, that is to say, a comprehensive, moderate Bill which will do for the badger what should be done for it if the badger is in need of protection. "Landowner" is an emotive word in these days; but if we leave the landowner or the farmer or the occupier of the land to get on with farming his land and tending it; and, where there is no danger to the badger either by numbers or for other reasons, if he sees fit, either because of the animal's character or its habits, to take such action as he thinks is necessary, then the State will not seek to interfere with that. I should have thought that the noble Earl, Lord Cranbrook, in these three Amendments, the first of which as the noble and learned Viscount, Lord Dilhorne, remarked, is purely a paving Amendment, is making a series of sensible amendments to a Bill, the principle of which we all agree, and most of us will agree as to how it should come about.

BARONESS YOUNG

I am very glad on behalf of the Government to be able to support this very important Amendment No. 7 moved by my noble friend Lord Cranbrook. As he has said, it follows from the point he made on Second Reading, that where the numbers of badgers are falling away there should be special protection for them. The purpose of this clause is to enable a distinction to be made between those areas of the county where the general protection afforded by the Act will be sufficient for effective conservation of badgers, and others where the badger is scarce, or is threatened, where it needs to be given an added degree of protection. This Amendment does just that. It enables that high degree of protection to be given in areas where, after consultation with the Natural Environment Research Council, the Secretary of State is satisfied that it is needed on conservation grounds. If I understood the noble Lord, Lord Foot, correctly, his first objection to this Amendment was that the Secretary of State would determine where this should happen. But my understanding is that this follows on the same principle as the Act that protects seals.

On the other point that he raised, I understand that the Bill would apply to all areas. Authorised persons would have a differing degree of freedom to take badgers according to whether an Order had or had not been made declaring the area an area of special protection. I am very glad to support this Amendment.

LORD HOY

I shall not detain the Committee for long, but the noble Baroness conceded the argument of the noble Lord, Lord Foot, that it will be the Minister who will determine, and if the Minister determines not to do so then the Bill does not work at all. I agree with the noble Baroness who spoke. When this Bill was introduced, it was for the protection of badgers. We did not say that they were to be in Suffolk, or in Essex or in Angus or in Sutherland. The noble Viscount, Lord Massereene and Ferrard, is absolutely correct, when he says that that is the Bill we are dealing with; and it is a little twisting, in the best sense of the word, for the noble Earl, Lord Mansfield, to have said that when he introduced his Bill the noble Earl did not say that it could not be amended; he said it could. There is a great difference between amending a Bill and emasculating it. I have known only one Bill that became an Act of Parliament—and it is a recent one—where the Government determined that it was so well drafted that it could not be amended. The noble Earl, Lord Arran, is not quite so presumptuous as that, because he said that he was willing to consider Amendments, and has shown his willingness to do so_ If I have differed from him to-day at all it is because I think that he has been too tolerant on one or two occasions.

On this Amendment it is said that we are discussing also Amendment No. 21. So we are, because it has now been said by one noble Lord that these Amendments paved the way to Amendment No. 21. The noble Earl, Lord Cranbrook, quite fairly said that if he was going to discuss this Amendment, he must take Amendment No. 21 with it, in order to make any sense at all. I admire him for so saying although I disagree with the argument entirely. I would say to your Lordships that if these two Amendments are carried, then this Bill is not worth the paper it is written on. Let us make up our minds. Do not let us have any humbug about this. I am very sorry that on this Private Member's Bill the Government should take this point of view. I know that there are certain people in the noble Baroness's Department who dislike the Bill and who would like to see only a mediocre version of it; but that is no reason at all for your Lordships willingly to destroy this Bill and I should certainly go into the Lobby against this Amendment because I believe most sincerely that these Amendments would kill the Bill.

6.18 p.m.

THE EARL OF ARRAN

I regard this as a deliberately wrecking Amendment. The Bill was put down by myself for two purposes which were not mutually exclusive: conservation and the removal of cruelty. The Bill has now been turned on its head, because, as the noble Earl, Lord Cranbrook, said, he and I regard it as a conservation Bill. I am grateful to him because to conserve is a noble thing to do. But I have a second barrel to my gun, and that is anti-cruelty; and I do not think that this Clause 7 can do anything but—I shall not say increase "—do anything to mitigate the cruelty which all, or most of us, now know to exist in many parts of the country which I shall not enumerate, but certainly it exists in the West Country and in Cheshire. The further West you go, for some reason or other, the worse it becomes. I envy the noble Earl, Lord Mansfield, who has dozens and dozens of badgers, where he does not find a great deal of cruelty, although he mentioned one rogue badger, did he not?

THE EARL OF MANSFIELD

There is no cruelty to the badgers in my part of the world.

THE EARL OF ARRAN

No, but you have a rogue?

THE EARL OF MANSFIELD

We have a rogue, which is cruel to my hens.

THE EARL OF ARRAN

That brings me to the second point, the question of the rogue badger. It has been suggested that there is no mention of the rogue badger. But if you turn to the next Amendment by the noble Earl, Lord Cranbrook, with which again I am not in sympathy generally, there is a rather obscure reference to such an animal, and I entirely agree that at the Report stage that point should be brought out more strongly. Several people have said to me "What are you going to do about the rogue?", and I have asked them to look at the Amendment which deals with this. But I do not think this is strong enough, and certainly on Report, if I am given a Report stage, I will see that this is strengthened.

THE EARL OF CRANBROOK

I must confess that I think that those speakers who have asked for the whole Bill and nothing but the Bill as it came in are throwing away the substance for the shadow. The absolute protection of any animal on the lines of the Bill as it was brought in would, I think, be opposed by every scientist of repute in the country. I cannot think of one who would say that the right way of looking after the animals and plants that we find in our countryside is to give the sort of absolute protection which the noble Lord, Lord Coleridge, and others have asked for. I myself could not possibly have voted for the Second Reading of this Bill if I had felt that that was the way it was going to leave your Lordships' House. I believe it would be bad for badgers, bad for conservation and bad for everything to do with the countryside that I have spent most of my life in studying and trying to foster. I would most earnestly urge those of your Lordships who are, I can see, passionately devoted to badgers just as badgers, to realise that a pure protection Bill must do harm in the end, and that the only way of look after animals properly is the sort of modern conservation Bill I have tried to turn this Bill into with my Amendments.

VISCOUNT MASSEREENE AND FERRARD

I do not think the noble Earl, Lord Arran, is asking for complete protection. I think that what he is really asking for is that some authority, the Nature Conservancy or the N.E.R.C., shall specify where badgers may be killed. The noble Earl, Lord Cranbrook, says that there is no species in this country which is completely protected. With due respect to the noble Earl, that is complete nonsense. Take all the birds of prey, the peregrine, the golden eagle; you cannot take a golden eagle out of its nest if you do not have a Home Office permit.

THE EARL OF CRANBROOK

If I may interrupt for one moment, I apologise. I should have said common species.

VISCOUNT MASSEREENE AND FERRARD

Well, there we are. I will not detain the Committee, but I would make that point, that there are many species which are fully protected. I do not think the noble Earl, Lord Arran, is asking for complete protection. He is asking for controlled protection, but not under the control of any farm tenant or landowner.

LADY RUTHVEN OF FREELAND

May I just draw the attention of the noble Earl, Lord Cranbrook, to the speech made by Lord Zuckerman at Second Reading, in which he said: There is probably no other wild animal in this country which has as curious and unique a reproductive physiology as the badger; and if the badger goes, students of physiology, and particularly unique physiology, will be deprived of something extremely important. Badgers may be plentiful in some parts of the country but they have been exterminated in others."—[OFFICIAL REPORT, 15/2/73; col. 1732.] So there is one scientist.

THE EARL OF CRANBROOK

I do not want to criticise the noble Lord, Lord Zuckerman, but he knows as well as I do that there are three or four other species with exactly the same reproductive arrangements as the badger. My Amendment would secure that the badger continues for a very long time to reproduce itself in a way which I would hesitate to waste your Lordships' time in describing.

BARONESS YOUNG

Perhaps I might speak again as I now understand that the noble Earl is taking Amendment No. 8 with Amendment No. 7. I should tell the Committee that we do regard this Amendment No. 8 as a most important one, and one which removes the main objection of the Government to the Bill as originally drafted. The Amendment is in two parts, and under subsection (1) an authorised person—who, as defined in a later Amendment, No. 21, would include an owner or occupier acting on land that he owns or occupies—would be permitted to kill or take badgers other than in an area of special protection. This preserves the owner's or occupier's common law right to control wild animals on land he occupies, and therefore removes the principal objection that the Government had at Second Reading of this Bill.

However, within an area of special protection, which, of course, is covered by Amendment No. 7, subsection (2) provides that such a person who might unlawfully kill would have a good defence if he could show that his action was necessary for the purpose of preventing serious damage to land, crops, poultry the kind of case raised by my noble friend Lord Mansfield—or indeed for the purpose of preventing the spread of disease. This subsection follows the precedent as set in the Protection of Birds Act, under which an authorised person is permitted to kill wild birds listed in Schedule 2 to that Act, consisting of those species which may be harmful to agriculture and are not in any way endangered. He has a good defence against a charge of killing a protected bird, other than certain named species of very rare birds, if he can show that his action was necessary to prevent serious damage to crops or property. I felt that I should make these points because they were discussed at length at Second Reading, and make clear the attitude of the Government to these two very important Amendments.

LORD BIRKETT

If we are speaking on Amendment No. 8, may I ask this

question? If a man is allowed to kill a badger within a protected area for the purpose of preventing serious damage to land, crops, poultry or any other form of property, or for the purpose of preventing the spread of disease, what would he be killing it for in an unprotected area, where it comes outside the scope of these phrases? That is what worries me. There seems to be no limit to what a landowner may do to a badger, assuming he is not doing it cruelly, if it is not in a protected area.

LORD ARCHIBALD

May I ask the noble Baroness whether the House can be given an assurance that there will be any areas of special protection? Because the provision is only that the Secretary of State "may" by order declare after the usual consultations. I should have more faith in this Bill if the phrase were that the Secretary of State "shall" declare.

BARONESS YOUNG

This is a Private Member's Bill, and this is the Earl of Cranbrook's Amendment to it, but my understanding is that the wording used is similar to that used in the Act for the protection of seals. I see no reason for supposing that the Secretary of State, if this Bill became law, would not so act on the advice of the Natural Environment Research Council where they advise that an area of special protection is necessary.

THE EARL OF CRANBROOK

I hesitate to inflict myself on your Lordships again, but I might reassure the noble Lord opposite. I am chairman of the Advisory Committee on the Protection of Seals, and we do advise the Minister what is the best course to follow. There is no difficulty in any way. The Minister gets the advice he asks for and he acts on it.

6.29 p.m.

On Question, Whether the said Amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 31; Not-Contents, 46.

CONTENTS
Allerton, L.	Craigavon, V.	Emmet, of Amberley, B.
Alport, L.	Craigton, L. [Teller.]	Ferrers, E.
Auckland, L.	Cranbrook, E. [Teller.]	Gowrie, E.
Belhaven and Stenton, L.	Davidson, V.	Greenway, L.
Belstead, L.	Denham, L.	Greenwood of Rossendale, L.
Brougham and Vaux, L.	Dilhorne, V.	Hall, V.
Champion, L.	Elles, B.	Hylton-Foster, B.
Kilmany, L.	Mowbray and Stourton, L.	Strathclyde, L.
Lothian, M.	Newall, L.	Trefgarne, L.
Mansfield, E.	St. Aldwyn, E.	Wells-Pestell, L.
Margadale, L.
NOT-CONTENTS
Amherst, E.	Davies of Leek, L.	Rhodes, L.
Amherst of Hackney, L.	Foot, L.	Rusholme, L.
Archibald, L.	Fulton, L.	Ruthven of Freeland, Ly.
Arran, E.	Harvey of Prestbury, L.	Saint Oswald, L.
Arwyn, L.	Hayter, L.	Shinwell, L.
Bacon, B.	Hoy, L.	Slater, L.
Berkeley, B.	Jacques, L.	Southwark, Bp.
Birkett, L.	Killearn, L.	Stocks, B.
Blyton, L.	Llewelyn-Davies of Hastoe, B.	Strabolgi, L. [Teller.]
Brentford, V.	Longford, E.	Taylor of Mansfield, L.
Brockway, L.	Maelor, L.	Vivian, L.
Carnock, L.	Massereene and Ferrard, V.	Willis, L.
Chorley, L.	Milner of Leeds, L.	Wright of Ashton under Lyne, L.
Coleridge, L.	Napier and Ettrick, L.
Conesford, L.	Nunburnholme, L. [Teller.]	Wynne-Jones, L.
Cork and Orrery, E.	Popplewell, L.

On Question, Amendment agreed to.

6.37 p.m.

THE EARL OF ARRAN moved Amendment No. 9A:

After Clause 2 insert the following new clause:

General exceptions . A person shall not be guilty of an offence under this Act by reason only of—

1. (a) the taking or attempted taking of any badger which had been disabled otherwise than by his act and was taken or to be taken solely for the purpose of tending it and releasing, it when no longer disabled;
2. (b) the killing or attempted killing of any badger which had been so seriously disabled otherwise than by his act that there was no reasonable chance of its recovering;
3. (c) the unavoidable killing or injuring of any badger as an incidental result of a lawful action."

The noble Earl said: This is what I might call the "mercy killing clause". I am attempting in this Amendment to meet objections and to give effect to proposals that were made on Second Reading, particularly by the noble and learned Viscount, Lord Dilhorne. However, the Committee will notice that the noble and learned Viscount has tabled an Amendment to my Amendment, which I must say takes me somewhat aback. The new clause which I am now moving is closely modelled on the relevant section in the Conservation of Seals Act, in which, as we know, the noble Earl, Lord Cranbrook, played so important a part, and, in my submission, it is a very carefully drafted clause. The noble and learned Viscount accused me earlier of being over- emotional, but I wonder whether the boot is now on the other foot. I do not quarrel in any way with his intentions, which seem to me highly benevolent, but it seems to me rather imprecise to talk of an "act of mercy". However, I am sure that he will be able to explain it. I understand "divine clemency", but an "act of mercy" by a human being is possibly harder to define. Before advising the Committee whether to accept the Amendment as it stands or as amended by the noble and learned Viscount, I should very much like to hear what he and other noble Lords have to say. I beg to move.

6.40 p.m.

VISCOUNT DILHORNE moved as an Amendment to Amendment No. 9A: Line 3, leave out from ("which") to end of paragraph (b), and insert ("appears to be seriously injured or in such a condition that to kill it would be an act of mercy;").

The noble and learned Viscount said: The noble Earl, in moving his Amendment, endeavoured to reply to my Amendment before it was moved, and said singularly little about the Amendment which he himself was moving. He really has not explained it at all; and I am very disappointed, because I was looking forward to a clear exposition of exactly what was intended. These are all exceptions from general liability to offences under this Bill, and paragraph (a) provides for the taking or attempted taking of any badger which had been disabled otherwise than by his act and was taken or to be taken solely for the purpose of tending it and releasing it when no longer disabled;".

I see some practical difficulties about that, because what will be the position if the purpose is expressed of releasing it when no longer disabled but in fact it is not released? But that is not the provision which I think is particularly unworkable.

Paragraph (b), to which my Amendment is tabled, is an effort—and I thank the noble Earl for it—to deal with the particular case which I raised on Second Reading. Suppose one saw a badger with a snare round its neck, obviously suffering in consequence, and one could not get to it and take it alive—and very well one might not, if one came across it like that. I myself would think that it would be merciful to kill that badger and put it out of its suffering. Similarly, if I saw a badger which was obviously covered with mange and I could not catch it, I would think that it was merciful and right to put it out of its agony and to kill it as speedily as I could. I think that paragraph (b) is an effort to meet those cases where killing a badger would, I think, be entirely reasonable, but my criticism of it is that it does not do so. It makes it an exception if the killing or the attempted killing of any badger is in the circumstances there set out. It has to be a badger which had been so seriously disabled otherwise than by his act that there was no reasonable chance of its recovering.

If I saw a badger in a field suffering from mange, I should not be able to say whether or not there was a reasonable chance of its recovering—and who could? If I saw a badger with a snare round its neck, I could not say whether there was a reasonable chance of its getting rid of that snare. Who could? Yet it is only to be an exception if one can establish that there was no reasonable chance of its recovering.

That really is not the right test. Surely the test must be one on the lines that I have suggested: where the killing of a suffering animal is done as an act of mercy. There is no need to define what is meant by an act of mercy. When a case comes before a court and a man is prosecuted for killing a badger, it will be a matter for him to say in his defence, "It is perfectly true that I would have been guilty of an offence under this Act, but I am not because I saw this animal was disabled and suffering, and I put it out of its agony; and that killing was therefore an act of mercy". If one saw a wounded badger which was crippled and able to use only its forelegs because its back was broken, I do not know if this particular provision would then apply; but it really is not the test whether there is no reasonable chance of recovery, because the person who sees the badger may not be able to assess that, and he should not have to take the chance. If he genuinely feels that it is an act of mercy to put it out of its agony, he ought to be free from any risk of conviction. That is the motive with which I have tabled this Amendment: to give a real effect to what I think was the noble Earl's intention in paragraph (b). I beg to move.

THE EARL OF ARRAN

May I make it absolutely clear to the Committee and to the noble and learned Viscount that my remarks were meant to be jocular, though perhaps they were not in very good taste. I wholeheartedly support this Amendment. Who, indeed, could not?

THE EARL OF CRANBROOK

I should like to say one word about this Amendment. I am not Quite certain that I agree with the noble Viscount. I have frequently found creatures which I have been able to look after and allow to recover, and I have then been able to release them again. I would be sorry to prevent that, although it is always a tricky point of judgment as to whether or not you are being kind or cruel in trying to help it recover.

VISCOUNT DILHORNE

I think the noble Earl is speaking to paragraph (a). My Amendment may have misled him, because it was wrongly tabled. It relates to paragraph (b), and is to insert the words on the Order Paper after the word "which" in paragraph (b).

THE EARL OF CRANBROOK

I had thought that the noble and learned Viscount had moved to remove the first paragraph.

VISCOUNT DILHORNE

That is why I interrupted.

VISCOUNT DILHORNE

Turning now to Amendment No. 9A, there are two questions here to which I hope the noble Earl, Lord Arran, will say he will certainly give careful consideration before the Report stage. The first is the question to which I have already made reference, about releasing the animal when it is no longer disabled. That is an expression of purpose. What happens if the purpose is changed? I am not very happy about that provision. With regard to paragraph (c), I should like to come back to the point which the noble Earl, Lord Cranbrook, raised. He thought that paragraph (c) would be an excuse for the infliction of cruelty in the course of what one might call an authorised killing. I do not think it goes as far as that, and I think you must have some words somewhere in this Bill to say that any suffering involved in an authorised killing or an authorised taking by an authorised person, which I would assume would be in the best way possible having regard to what we already have in this Bill, should not constitute an offence under the provisions in relation to cruelty.

BARONESS YOUNG

On this clause, perhaps I may say that the Government are glad to support this Amendment. It is a clause which is sometimes known, as the noble Earl, Lord Arran, says, as a mercy killing clause, and similar provisions to these are included in most comparable legislation; that is, the Protection of Birds Act and the Conservation of Seals Act 1970. We therefore think it is right that it should be included in a Badgers Bill of this sort.

On the last point that has been raised, on paragraph (c), my understanding is that the clause provides that a person who unavoidably kills a badger as an incidental result of a lawful action shall not be guilty of an offence. The kind of situation which is envisaged is in the case of, for example, a construction worker who found a badger sett in the path of his bulldozer and could not be sure that it was unoccupied before he drove on. This is the kind of example which could be given to illustrate paragraph (c). But I am glad to support the Amendment to my Amendment.

Amendment, as amended, agreed to.

Clause 3 [Licence to take badgers]:

6.49 p.m.

THE EARL OF CRANBROOK moved Amendment No. 10: Page 1, line 14, leave out ("Minister of Agriculture, Fisheries and Food") and insert ("appropriate authority specified in the next subsection").

The noble Earl said: I think that, in spite of the disaster which I have just suffered, the whole of the series of Amendments to Clause 3 fall within the scope of the noble Earl's Bill as originally introduced, and provide for exceptions for which I think he would have had to provide himself at this stage of the Bill. The first one provides for taking badgers for scientific or educational purposes; the second one deals with keeping badgers in captivity and taking them for zoos; the third one follows on Amendment No. 6, which has already been accepted; and the fourth is to meet the case raised by the noble Baroness on the Front Bench that there had been suggestions that badgers could carry tuberculosis—and the noble and learned Viscount, Lord Dilhorne, referred to hydrophobia. I think it all falls within the scope of the noble Earls' Bill as introduced. I beg to move.

BARONESS YOUNG

May I say that the Government are glad to support this Amendment which in fact puts right one of the difficulties which I raised on the Second Reading debate of this Bill.

THE EARL OF CRANBROOK

I beg to move Amendment No. 11.

Amendment moved— Page 1, line 18, leave out ("to take badgers").—(The Earl of Cranbrook.)

THE EARL OF CRANBROOK

I beg to move Amendment No. 12.

Amendment moved—

Page 1, line 19, leave out paragraphs (a), (b) and (c) and insert—

1. ("(a) for scientific or educational purposes or for the conservation of badgers to kill or take within an area specified in the licence by any means so specified, or to sell, any number of badgers so specified;
2. (b) for the purpose of any zoological gardens or collection specified in the licence to take within an area specified in the licence by any means so specified, or to sell, any number of badgers so specified;
83
3. (c) for the purpose of ringing and marking to take badgers within an area specified in the licence, to mark such badgers or to attach to them any ring, tag or other marking device as specified in the licence;
4. (d) for the purpose of preventing the spread of disease to kill or take badgers within an area specified in the licence by any means so specified.

( ) The appropriate authority for the grant of a licence under the foregoing subsection shall be—

1. (a) in the case of a licence under paragraph (a), (b) or (c) of that subsection, the Natural Environment Research Council;
2. (b) in the case of a licence under paragraph (d) of that subsection, the Minister of Agriculture, Fisheries and Food or, in Scotland, the Secretary of State.").—(The Earl of Cranbrook.)

BARONESS YOUNG

Again, I am glad to support this Amendment which explains in more precise terms the circumstances in which licences to kill, take or sell badgers may be granted. It follows reasonably closely the wording used in the licensing section of the Conservation of Seals Act 1970 and covers all purposes for which it may be necessary to issue licences. I am glad to support this Amendment.

THE EARL OF CRANBROOK

I beg to move Amendment No. 13.

Amendment moved— Page 1, line 23, leave out ("Minister") and insert ("authority by whom it was granted").—(The Earl of Cranbrook.)

Clause 3, as amended, agreed to.

6.54 p.m.

THE EARL OF ARRAN moved Amendment No. 14:

After Clause 3 insert the following new clause:

Offender may be required to quit land

". If any person shall be found committing an offence under section 1 of this Act on any land, it shall be lawful for the owner or occupier of the land, or any servant of the owner or occupier, or any police constable to require that person forthwith to quit such land and also to give his name and address; and if that person on being so required wilfully remains upon the land or refuses to give his full name or address, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £20."

The noble Earl said: Since the Bill, as it is now proposed to be amended, puts so much responsibility in the hands of landowners it is only reasonable that landowners benevolently disposed towards badgers—and I think most of them are—should have adequate powers to eject from their land those who enter on it with the intention of committing an offence under this Act, and further that they should have sufficient powers to take such steps as they deem necessary for the prosecution of those so entering on their land. The Committee may like to know that this Amendment is identical with a clause in a Bill for the Conservation and Protection of Badgers now before another place. It is intended to strengthen the Bill. Again, subject to any views which the Government or the Committee may have, I would hope that your Lordships may accept it. Its inclusion will also, I hope, show to your Lordships that though I am not in full agreement with the Bill in the other place there is much in it with which I concur.

BARONESS YOUNG

As the noble Earl, Lord Arran, has said, this Amendment is in fact one of the clauses of a Bill that is being moved in another place; it is exactly the same. The Government have no objection to this clause which would in fact strengthen the hands of owners and occupiers who come across people digging badgers on their land without permission. However, the noble Earl might perhaps like to look at the wording again before the Report stage. For example, he uses the word "servant" which I think is rather archaic. "Employee" would be the word we would use. And it would be inappropriate to specify in this clause the penalty for an offence created under this clause when in fact there is another clause quite specifically dealing with penalties. These are points which the noble Earl might care to look at.

Clause 4 [Enforcement, penalties, etc.]:

LORD SOMERS moved Amendment No. 15: Page 2, line 2, leave out ("found") and insert ("suspected of").

The noble Lord said: I would ask your Lordships' permission to speak to Amendments Nos. 15 and 16 together; they are merely drafting Amendments. The point is that you cannot search anybody if you have found him in the act. To find him in the act you have actually to see him; therefore, there is no necessity to search him. If you see him committing the offence, again there is no necessity to search him. Therefore it seems to me that "suspected of committing or having committed" would be a better way to express what is intended. I beg to move.

BARONESS YOUNG

Once again, there is no objection in principle to this clause but I wonder whether the noble Lord, Lord Somers, would care to have another look at the drafting. The drafting of Clause 4(1) is based on Section 12(1) of the Protection of Birds Act 1954, but there is a precedent in comparable legislation, Section 4(1) of the Conservation of Seals Act 1970, for a constable to be empowered to stop and search any person whom he has reasonable cause to suspect of committing an offence. This, of course, draws the clause more tightly than does the Amendment at the moment; so that it would have to be qualified by a requirement that there should be a reasonable cause to suspect that the person is committing or has committed an offence.

The second point should also be qualified by a requirement that the person is suspected of recently committing the offence, and the noble Lord may be able to find a more appropriate form of words, such as, "and that evidence of the commission of the offence is likely to be found on that person or in the vehicle which he may be using at the time". Perhaps the noble Lord would keep these drafting points in mind for the Report stage.

VISCOUNT DILHORNE

This raises a question of some importance. As the noble Baroness will agree, the words "found committing" have many statutory precedents. They have led to some difficulties in the past. There have been cases about what they really mean and there have been decisions on them, and I personally would be sorry to see a different formula adopted if it is now, as may be the case, clearly understood what those words mean.

I do not think, with great respect, that it is really for the noble Lord, Lord Somers, to find out what is the right formula to use here, and I suggest that if this Bill is going forward this is the kind of provision in relation to powers of the police in which the Home Office should take particular interest and draft correctly. It would be very unfortunate if we have a number of Acts giving powers of search in slightly different language which will then lead to difficulties in interpretation. I do feel—and I say this in support of the noble Lord—that he has raised an important point, but that it is one which really the Government ought to look at to get the language right.

BARONESS YOUNG

I will certainly take note of what the noble and learned Viscount, Lord Dilhorne, has said and will draw the attention of the Home Office to this point.

LORD SOMERS

I certainly would not presume to decide on what was the correct legal language for any part of a Bill, and in view of what the noble and learned Viscount has said I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.0 p.m.

THE EARL OF CRANBROOK moved Amendment No. 17: Page 2, line 8, leave out ("animal").

The noble Earl said: The noble Lord would want to punish the dog which has been engaged in trying to pursue badgers as much as the owner of it. While I agree that one could well punish the man, it seems to me to be going a long way towards being rather too anthropopathic in implying that the dog itself needs to be punished. I hope that the Committee will agree with my Amendment. I beg to move.

LORD HOY

The noble Earl has a case. I had not looked at it in that way. I do not know what the noble Earl, Lord Arran, thinks, but I am sure the Committee will be grateful for any comment he has to make.

VISCOUNT MASSEREENE AND FERRARD

In order to fill the gap, I would wholeheartedly support this Amendment. It refers to terriers which are put into the badgers' sett to draw the badgers. It would be quite absurd for the constable to detain the terrier.

VISCOUNT DILHORNE

It is equally absurd that, in line 3, the constable should have powers to search a terrier or, for that matter, a horse. It may be necessary to have power to search what is on the horse; but the picture of a constable searching a terrier is one which astonishes me. I drew attention to this on Second Reading but the noble Earl thinks the police must have power to search animals. How far that search must go I do not know. I support the removal of the power to seize and detain terriers which are used by their masters in chasing badgers.

THE EARL OF ARRAN

The noble and learned Viscount made this point on Second Reading. I should have taken it up in Committee. Perhaps he will excuse me. I imagine that what is meant by "animal" here is mostly a dog. There are two ways of looking at this question. On the one hand, you may say that if a man is really fond of his dog he will not put it at risk by allowing it to dig or take part in illegal activities. On the other hand, you may say the penalty is too harsh. In many cases the dog is not only man's best friend but also his means of support. I honestly do not know what to recommend about this matter. Perhaps I may leave it to the Committee to decide. I would point out that I do not envisage the forfeiture of a dog—which conies in a later Amendment—but merely the holding of it as potential evidence.

BARONESS YOUNG

The Government have no objection to this Amendment. It raises a practical point mentioned by my noble friend Lord Massereene and Ferrard and it refers to terriers. If they are taken by the police considerable problems are raised. Therefore the Amendment really tidied up the clause.

LORD HOY

I should like to put this to the noble Earl, Lord Cranbrook. I had a considerable number of cases where sheep were worried by dogs. I was always being asked to take action and to put them down if they were caught committing this offence. Farmers want some form of protection against it. The provision may not be quite so foolish as some people make out. In certain game hunting, particular dogs are used. While we do not want to appear ridiculous in this connection, it is not quite so supine as people think. We have these practical problems in agricultural communities.

BARONESS YOUNG

I hesitate to enter into arguments on matters of agriculture and farming, about which I know considerably less than most people here. My understanding is that in this connection terriers are used in the course of taking badgers. Therefore it is a somewhat different situation from that of dogs worrying sheep. The terriers would be used by the persons taking the badgers and therefore there is a distinction.

THE EARL OF CRANBROOK

Let us face it: this is not a rogue dog going off and worrying badgers by itself, but a dog which is deliberately introduced in order to dig out badgers. The noble Earl's intention is to punish the man by taking the dog from him. It seems to me that it is wholly inhuman to punish a man by taking away his dog and letting the dog lead a miserable life away from his master. I prefer dogs to badgers.

THE EARL OF ARRAN moved Amendment No. 18: Page 2, line 11, leave out from ("£100") to end of line 15.

The noble Earl said: This Amendment removes the penal element from this clause following criticisms expressed on Second Reading. I hope the Committee will feel that the penalty of £100 is enough. Our prisons are too overcrowded now and I see no reason to add to that over-crowding. The noble Baroness, Lady Young, adverted to this on Second Reading. I hope the Committee will consider this to be the proper course to follow.

BARONESS YOUNG

I am glad to support this Amendment. As I said on Second Reading, the provision of short terms of imprisonment for offences of this nature is not in keeping with present penal policy. This Amendment is therefore welcome.

THE EARL OF CRANBROOK

Amendment No. 19 is consequential. I beg to move.

Amendment moved— Page 2, line 25, leave out ("animal").—(The Earl of Cranbrook.)

THE EARL OF ARRAN moved Amendment No. 20: Page 2, line 27, leave out subsection (4).

The noble Earl said: I beg to move this Amendment. I seem to have mislaid my papers—

VISCOUNT DILHORNE

May I help the noble Earl? This is an Amendment to leave out subsection (4) of Clause 4 which gives a council power to institute proceedings. I suspect that it is to be moved to be left out because it is wholly unnecessary to include it.

THE EARL OF ARRAN

That is so.

Clause 4, as amended, agreed to.

7.8 p.m.

THE EARL OF CRANBROOK moved Amendment No. 21:

After Clause 4 insert the following new clause:

Interpretation

". In this Act, unless the context otherwise requires, the following expressions have the following meaning— authorised person" means—

1. (a) the owner or occupier, or any person shown to have been authorised by the owner or occupier, of any land on which the action authorised is taken;
2. (b) any person authorised in writing by the local authority for the area within which the action authorised is taken;
3. (c) any person authorised in writing by the Natural Environment Research Council or by the Minister of Agriculture, Fisheries and Food or, in Scotland, the Secretary of State;

so, however, that the authorisation of any person for the purpose of this definition shall not confer any right of entry upon any land; badger" means any animal of the species Meles meles."

The noble Earl said: I beg to move Amendment No. 21. I think that most of it is still necessary. I think it would be useful to put it in now and we can then amend it at Report stage.

VISCOUNT DILHORNE

The most controversial part of this clause is paragraph (a) which defines an authorised person as the owner or occupier or any person shown to have been authorised by the owner or occupier, of any land on which the action authorised is taken". We have not now in this particular provision any definition of what an authorised person can do. I should have thought, if this Bill is to reach the Statute Book, that there must be some provision contained in it (which now will have to be inserted on Report stage) for providing that in certain circumstances, despite the provisions of the Bill, badgers can be killed and taken. I think that is absolutely essential.

On the assumption that such provisions will be inserted, this particular provision deals with who can exercise those powers, whatever they may be. The controversial part of this provision is in paragraph (a). I think that paragraph goes too wide. It is all right that the owner or occupier of any land should be an authorised person to kill or take badgers on his land in certain circumstances. I do not think that there can be any criticism about that, so long as you define the circumstances correctly. What I think objectionable is to say that any person shown to have been authorised by the owner or occupier of the land also will be protected. It seems to me that makes it possible for the owner or occupier of land to take money to allow some gang concerned in acquiring pelts to come on to his land. I am sure that that is not what is meant.

I am glad that the noble Earl, Lord Cranbrook, has moved the Amendment, because it gives me an opportunity to put forward a suggestion for consideration by the noble Earl, Lord Arran, before the Report stage. I suggest that the owner and the occupier of the land should be authorised, and any person in their employ also authorised by them. It is the words about employment, which are missing here, which I think so essential. That power so given, it must be made clear that it is exercisable only on the land of the owner or occupier. With that qualification, I think you will get a proper definition of that category of persons who ought to be authorised, but we have to leave it now until the Report stage to decide and determine what they are to be authorised to do.

LORD FOOT

May I draw attention to a technical point? I suggest that this Amendment will not do, if only for the reason that it purports to propound the meaning of "authorised person". As a result of the rejection of Amendments Nos. 7 and 8 there is now no reference in the Bill to "authorised person". Therefore this Amendment could not be carried at this stage.

VISCOUNT DILHORNE

It could.

LORD FOOT

The noble and learned Viscount seems to indicate that I am wrong.

VISCOUNT DILHORNE

There is nothing to stop an Amendment moved in this Committee by a noble Lord from being carried, if the Committee approves. If the Committee did approve, it would do so on the basis that on Report stage a clause would be inserted, in place of the one the noble Earl failed to get put in, to define what are the powers of an "authorised person". It would be possible for the noble Earl, if the Committee supported him, to move this new clause.

THE EARL OF CRANBROOK

We have to bring in something to cover the people referred to in Amendment No. 12 about whom we are all agreed. They were previously defined as authorised persons. We have at least to get them defined.

LORD BIRKETT

Unless I am mistaken, Clause 3(1) paragraphs (a), (b) and (c) still stand in the Bill. They refer to the licences which may be issued, and it might be that at Report stage these authorised persons might be included under the licence to be issued. This would get over one small objection that I see to rejecting utterly the right of the landlord to authorise someone else, and not merely an employee—perhaps an expert. Suppose on Report stage the question of the rogue badger is dealt with. There may be many landlords quite incapable of coping with a rogue badger and they will want an expert to do it for them. He will then acquire the licence to do it, not in the name of the owner, but of himself.

LORD FOOT

It is a narrow point, but if you do not have the words "authorised person" in the Bill at all, which is the present state of the matter, it is a little bit of absurdity, is it not? to approve an Amendment which tells you the meaning of the words "authorised person", which do not appear in the Bill. That was the narrow point I was making. I suggest that it would be rather absurd for us to carry an Amendment defining the meaning of those words when they do not occur in the Bill.

THE EARL OF CORK AND ORRERY

The noble Lord, Lord Foot is absolutely right. To accept this Amendment would be to perpetrate an absurdity. Let us therefore without further ado perpetrate an absurdity. As the noble and learned Viscount, Lord Dilhorne, points out, this is a very good idea—he did not put it in quite that way, but it is. I see no harm in it. After all, your Lordships' House is quite used to this kind of thing. We can put it right at the next stage.

I wonder whether even the noble and learned Viscount is not still keeping the thing a little wide in his remarks about paragraph (a). Is it necessary to have this paragraph at all? Could we not abolish the owner or occupier as identified in the Bill, and leave it as any person authorised in writing by the local authority? Presumably, the local authority would be inclined to authorise the owner or occupier, at least in the first instance. Whether or not he should do so might well be left with advantage to the local authority because "occupier" is a very vague term. It might cover a gipsy squatter or some not very responsible person, might it not?

THE EARL OF CRANBOOK

We have to have some substitute for Amendment No. 8, which we did not approve, and which must authorise the owner or occupier of land to destroy a badger which is doing damage to his crops. Therefore we have to have an authorised person, and we shall have to leave it in, and that will bring in the people authorised by the various Ministers and others to do it for other purposes.

THE EARL OF CORK AND ORRERY

I think I am entitled to clear up a misunderstanding with my noble friend. I do not wish to get rid of anybody, an owner-occupier or anybody else. I only think it might be a good idea for consideration on Report that the decision whether it should be an occupier or owner, or not, should be left to the local authority who would presumably appoint the owner. If I am wrong, that is the end of it; but at this moment all I wish to say is that I support the Amendment.

THE EARL OF CRANBROOK

The basic principle must be the same as in the protection of birds legislation, where the owner or occupier of an orchard is entitled to shoot protected birds which are destroying his fruit. The bullfinch was the one originally referred to, and finally protection was removed from that bird. You have to have a clause of that nature, and therefore you have to have the landlord as an authorised person for that purpose.

LORD HOY

No one would deny the noble Earl's right to move an Amendment. But when he was moving Amendments Nos. 7 and 8 he linked them with Amendment No. 21. He described them as paving Amendments. Having lost them both, it is difficult to see what purpose is served by this Amendment. If the paving Amendments are lost, all we are left with is the remnant to which the Amendments no longer refer. Contrary to what the noble and learned Viscount said, I thought he was stretching it a little in support of his noble friend Lord Cranbrook. I was surprised that the noble Earl moved the Amendment, having lost his two paving Amendments. It is not out of order for the noble Earl to move the Amendment, because he may move what he likes, but even the noble and learned Viscount, Lord Dilhorne, said that he could not support this Amendment as it stands. The noble Earl does not forgo the opportunity on Report stage to put down an Amendment defining much more clearly what he means. Certainly to carry this Amendment would make a nonsense of the whole matter. I think he would be well advised, if this is what he wants to define, to wait for the Report stage and put down an Amendment which might even get the support of the noble and learned Viscount, Lord Dilhorne.

THE EARL OF CRANBROOK

Various people have suggested that the person authorised by the authorised person should not be allowed this authority. All of us know that one has to get someone—and one does not necessarily pay him —to shoot wood pigeons and the like. Provided we have sufficient provision in the remainder of the Bill to prevent what the Committee obviously does not want, I think we shall have to leave this clause almost exactly as it is at the moment.

VISCOUNT DILHORNE

I hope it will not be exactly the same as it is at the moment. However, before the noble Earl withdraws this new clause, if he is going to do so, I should like to know Lord Arran's reaction to this. We have gone a long way in this Bill, largely by agreement. I think that it is right to say that the noble Earl, Lord Arran, has improved it considerably. I should like to encourage him to do more. I think that even if the noble Earl withdraws this particular Amendment, discussion on it will have served a useful purpose, particularly if the Members of the Committee are informed by the noble Earl, Lord Arran, whether he is prepared to accept something on the lines of the suggestion put forward by me.

I listened with interest to the suggestion of the noble Earl, Lord Cork and Orrery. I am not enamoured of it. I can imagine the farmer, when he sees the rogue badger attacking his chickens, saying to himself, "I must not do anything about this. I have to telephone the local authority and get hold of the right official there and obtain a certificate from him and then I shall be able to do something about it", by which time all of his chickens will have been killed! However, there are various possibilities which I am sure will be considered by the noble Earl. Before he does that, it would be interesting to know to what extent the noble Earl, Lord Arran, would support the limiting proposal put forward by me.

THE EARL OF ARRAN

The temptation is to say, "No", to the most sensible suggestion from the noble and learned Viscount. I would not go so far as he, and say, "Owner-occupier or employee". I know that he is very keen on the employee, but perhaps we shall have an opportunity of discussing this on Report; no doubt the noble Earl, Lord Cranbrook, will put down an Amendment then. I wonder, with great respect, whether it might not be a good idea if he were to withdraw this Amendment now on the understanding that we shall both put up Amendments and we shall not fight it out now—it has been a most amicable battle—but at that stage. Would that please the Committee?

THE EARL OF CRANBROOK

I shall find it difficult not to be able to put down an almost identical Amendment, but I am quite prepared to do it at a later stage. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 5 [Short Title and extent]:

THE EARL OF ARRAN

I beg to move Amendment No. 22.

Amendment moved—

Page 2, line 32, at end insert— ("(3) This Act shall come into force at the expiry of one month beginning with the date of its passing.").—(The Earl of Arran.)

In the Title:

THE EARL OF ARRAN

I beg to move Amendment No. 23:

Amendment moved— Line 1, after ("prohibit") insert ("save as permitted under this Act").—(The Earl of Arran.)

House resumed: Bill reported, with the Amendments.