§ '(1) Subject to subsection (2) below a person who has in his possession any live animal which has been imported contrary to section 1 above shall be guilty of an offence.
§ (2) A person is not guilty of an offence under subsection (1) above with respect to a live animal if he proves to the satisfaction of the court—
- (a) that at the time when it first came into his possession he made such enquiries (if any) as in the circumstances were reasonable in order to ascertain whether it had been imported contrary to section 1 above, and
- (b) that at the time when it first came into his possession he had no reason to believe that it had been so imported.
- (a) on summary conviction, to a fine not exceeding 400;
- (b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both.
§ (4) For the purposes of any proceedings under section 45 or 304 of the Customs and Excise Act 1952 (penalties for improper importation and evasion of restriction on importation) for an offence in connection with the importation of anything contrary to section 1 above, this section shall not be taken expressly to provide a penalty for that offence.
§ (5) The court by or before which a person is convicted of an offence under this section may make such order as to the forfeiture or disposal of any animal in respect of which the offence was committed as the court thinks fit.
§ (6) The Secretary of State may, under section 1(2) above, issue a licence for the importation of a live animal subsequently to its actual importation, and the animal shall, for the purposes of this section only, be deemed to have been lawfully imported under section 1 above as on (but not before) the date of issue of the licence'.
Amendment (a) to New Clause 5, after subsection (4), add—
'()(a) If a justice of the peace is satisfied by information on oath that there is reasonable ground to suspect that an offence has been committed under subsection (1) above and that evidence thereof may be found on any premises, he may grant a warrant to any constable to enter and search those premises for the purpose of obtaining that evidence.
(b) In the application of subsection (4)(a) above to Scotland, the reference to a justice of the peace includes a reference to the sheriff'.
I apologise that I shall have to speak at some length in order to deal with this group of amendments. but it covers some of the important points which have arisen in the Bill. Although I shall have to be on my feet for a rather long time perhaps it would be for the convenience of the House for me to deal with a number of related points.
In dealing with Amendment No. 1, I should also like to speak to Amendment No. 10 and to New Clause 1. These are the most important issues that the Government wish to bring before the House today. The combined effect of the two amendments and the new clause would be to delete the subsections which provide specific offences and penalties for illegal import and for the handling of illegally imported goods and to replace them with a provision which would make it an offence subject to a penalty, to sell or display illegally imported goods.
869 In its original form, the Bill simply declared certain items to be prohibited imports, thus constituting the offences and attracting penalties provided in Customs legislation. The only persons authorised to bring proceedings under Customs legislation, which covers subsequent handling as well as importation. are of course the Commissioners of Customs and Excise themselves. There is a long tradition that these powers should be reserved to Customs. However, in another place it was felt strongly that provision should be made in this case for prosecution by other persons or bodies. Accordingly subsections (3), (9) and (10) were introduced, despite strong Government advice that they would be unworkable.
I accept entirely the view expressed in that other place that the voluntary conservation bodies have a valuable part to play in the enforcement of the Bill. These bodies have a fund of expertise at their disposal and may well be able to detect prohibited items inside the country which have eluded Customs at the ports. Indeed they have from time to time reported suspected breaches of our existing controls. I can well understand, too, that these bodies are not content with a passive rôle; they want a slice of the action in the shape of a power to bring proceedings themselves. It must, however, be understood that Customs must remain the prime enforcement body under this Bill: it is they to whom we must look to ensure that we can fulfil our international obligations under the Convention. We must ensure that any extra activity complements the work of Customs and does not obstruct it.
We have therefore sought a compromise solution which would allow persons or bodies other than Customs to bring proceedings in certain cases and yet safeguard the powers of Customs and avoid as far as possible overlap with their work. The exercise has been protracted and difficult and I owe much to the positive contributions made by the Retail Consortium and by the conservationists themselves. The result is New Clause 1.
Our objective has been to create conditions in which conservationists can pursue suspect items which are on sale or display within the country. Their activities would then be complementary to those 870 of Customs, whose main rôle is naturally enforcement at the point of importation.
The new clause would make it an absolute offence to sell, to offer or expose for sale, to have in possession for sale or to display any item the unlicensed import of which is made illegal by this Bill. It does not make an offence of possession alone—it must be possession for the purpose of sale. But it covers also goods made from illegal imports provided those goods are of a kind listed in Schedule 3.
A defence is provided in subsection (2) whereby anyone charged may show that he made inquiries when he took delivery of the goods. The inquiries have to be "such as are reasonable" in the circumstances. Clearly the circumstances can vary greatly. In the case of a private individual buying from a reputable store, one would imagine that a court would think inquiry superfluous; hence the insertion of the words "if any" in line 13. In the case of a large shop buying from a specialist dealer, one would look for some more positive inquiry, although I do not see that such inquiries normally need extend hack up the chain to the importer. The interpretation of the term "reasonable" in any particular case would of course be entirely a matter for the courts. The other leg of the defence, that the person charged must have had no reason to believe that the goods were illegal at the time the alleged offence was committed, is, I hope, self-explanatory.
Subsection (3) provides a means whereby a trader can satisfy the requirement of making reasonable inquiries. If he obtains from his supplier a certificate which complies with the terms of the subsection, he will be deemed to have made reasonable inquiry. This provision has been made in response to a request of retailers. There is, however, no need for anyone to trouble with certificates if he prefers to pursue his inquiries in other ways. Subsection (4) provides an offence for false statements on the certificate.
Subsection (5) provides penalties which conform to those generally applicable to offences of this kind and have regard to the custodial penalties in the Customs and Excise Act 1952 for illegal import with intent to evade. Subsection (8) ensures that the penalties for prosecutions under the Customs and Excise Act are not affected.
871 So far as New Clause 1 is concerned, the Government will be content to leave it to the House to decide whether persons or bodies other than Customs should be allowed to bring proceedings. But subsection (3) is not workable: it would seriously handicap Customs, and I must ask the House to support the amendment to delete it.
I now turn to New Clause 5. Again, I am afraid that I must ask the Committee to reject it. This new clause would make it an offence to possess a live animal which has been illegally imported.
This new clause is clearly related to New Clause 1 which makes an offence of sale and display. The House may know that we were urged to add possession to the list of offences in New Clause 1. We declined to do so for several reasons. One was that it has been suggested to us that the provision would be really useful only in relation to birds of prey—an important subject but minor in terms of the scope of this Bill. Another is that the provision strikes at private individuals who may not be concerned with trade or exhibition. Thirdly, possession is a difficult area of law.
Because we knew that some of the conservation bodies were keen to have this clause and because we knew that time after Committee would be limited, the Government agreed to take a major hand in shaping the provision. We hoped to be able to say at least that the clause is workable even if we did not agree with the principle. But after detailed discussion among four Departments over several weeks we have failed to come up with a viable proposition. I cannot say categorically that nothing can be devised, but we have done our utmost and not found a solution.
Today I can only summarise our difficulties briefly. The main constraints are that one cannot leave an individual open to repeated prosecutions against which he cannot defend himself, and one cannot create conditions which encourage an owner to kill his animal. We have looked at a range of possibilities, including seizure by the courts, seizure by Customs, voluntary surrender exemption from further prosecutions and a certificate which legitimises the animal. Subsections 872 (5) and (6) represent two of these alternatives.
It seems possible to arrange something after a court case, but we cannot see what to do if it becomes known that an animal has been illegally imported but no case has been brought. Subsection (6) would place the Secretary of State in the impossible position of having to make judgments, such as whether an animal was likely to have been illegally imported, before he could decide whether or not to issue a licence. This seeks to give him a function which should be the prerogative of the courts.
The Government are opposed to this amendment on principle, in that its limited usefulness does not appear to justify the interference with private individuals. But I must also advise that the amendment as drafted is totally unworkable and ask the House to reject it.
Amendment (a) to New Clause 5 would in defined circumstances allow a power of search in relation to the offence of possession of live animals in New Clause 5. It has been suggested that the objective is not so much to search for the animal as to search for documentary evidence of illegal import. No doubt such a power of search could be useful, but I have some reservations whether this measure of interference with private indidividuals is desirable. However, the Government have no strong feelings on the matter and are content to leave the House to decide.
I appreciate that the wording follows closely that in the Protection of Birds Act 1954. There are no objections to the amendment on drafting grounds.
I think that that covers all the matters raised in this group of amendments.
§ Mr. Tim Sainsbury (Hove)
First, I thank the Minister for that necessarily fairly lengthy explanation of this substantial group of amendments, which comprise perhaps the most important of the matters that will come before the Committee.
I welcome the consultations to which the Minister referred. They are most useful in legislation involving voluntary bodies. I agree with the hon. Gentleman about the important role that voluntary bodies have to play in this area of the law, particularly if we have regard 873 to the specialised knowledge which they have. I would not begin to claim anything in the way of expertise in relation to the flora and fauna with which we are concerned.
In considering the Bill we must remind ourselves that relatively few people can distinguish between some of the species and sub-species and similarly between plants that are at risk and those that are not endangered but comparatively common. Therefore, in the operation of the Bill and in the consultations which the advisory committee has the voluntary bodies have a continuing role to play.
This group of amendments deals with enforcement. I agree with the Minister that Customs should be the prime enforcement agency. I hope that he agrees that the point of enforcement should be the port of entry. If illegal importation has to be dealt with at a point inland other than the point of entry, something will have happened which we prefer not to happen? It is not just a question of Customs being the prime enforcement agency. In a perfect world—I accept that it is not perfect—Customs would be the only enforcement agency, because everything would be dealt with at the point of entry.
New Clause 1(3) is of particular importance to retailers. I take this opportunity of declaring an interest as director of a retailing company, not a company that deals in flora and fauna, which are the subject of the Bill. The company is a member of the Retail Consortium, which, I hope the Minister will agree, contributed substantially to the consultations which led to the tabling of the clause.
I hope that the subsection will simplify the investigation of a possible offence by enabling documentary evidence to be produced in a defined way which will clear the retailers' position. If the investigation has to go back to the previous source, the documentary evidence will identify what that is. The signatory of the certificate will be the person to go to if further inquiries are necessary.
The Minister gave several reasons why New Clause 5 is unacceptable, ending with the Government's ultimate deterrent on these occasions—that it is unworkable and inadequately drafted. I am sorry to hear that, because an important point 874 arises here. New Clause 1 deals with possession for the purpose of sale. I was surprised to hear from the Minister that possession is a very difficult aspect of the law. I have always been under the non-lawyer's misapprehension that it was nine points of the law and whether a person had something was relatively simple to determine—simpler than determining whether he had something for the purpose of sale. However, if the Minister is so advised by the experts, we must accept what he says.
The purpose of New Clause 5 was to create a new offence—possession, without involving the purpose of sale, of a live animal. Voluntary bodies believe that live animals cause most concern. The Minister referred to birds of prey, and I accept that it is perhaps with birds of prey that the risk is greatest. They are frequently imported not to be displayed or advertised and, therefore, would not come within the scope of New Clause 1. I understand that approximately 300 birds of prey are imported annually, nearly all for falconry. Hence, they are held privately.
The experience of the Royal Society for the Protection of Birds is that Customs and Excise has difficulty in enforcing legislation even at the ports of entry because of the problem of identifying species and sub-species. The society refers to the possibility of importers pulling the wool over the eyes of Customs and Excise. I had always thought that that was difficult to do, but I appreciate that with sub-species of falcons there is a risk. The falcon is himself hooded when he comes through the Customs for inspection.
The Minister raised certain specific objections to the clause which I must accept as valid, especially his reference to continuous prosecution and the risk that the threat of continued prosecution would be self-defeating in that it might lead to the animal being unnecessarily destroyed. That is not the objective. We should like to prevent the import of endangered species but if they are brought in we do not want that to result in a specimen being destroyed. We want to see that it finds it way into appropriate hands.
The Minister also said that subsection (6) would cause difficulty to the Secretary of State. I see that there are 875 difficulties, but I hope that the Minister will assure us that this aspect will be kept under continual review. Experience may show that we need to look again at the problem of possession not for the purpose of sale of certain species, particularly birds of prey.
I understand that New Clause 1 is acceptable to the bodies which have been consulted and, therefore, give it a welcome.
§ Mr. Anthony Fell (Yarmouth)
I notice that Clause 1(3), which is to be replaced by New Clause 1, imposes a fine not exceeding £400 or a term of imprisonment not exceeding three months, or both. Will the Minister explain why the term of imprisonment has jumped from three months to two years? In these days of inflation I would have expected the fine to jump from £400 to £2,000.
The Minister has done a splendid job this morning. The Bill will be a tremendous help and cause no end of fun to people who take the trouble to read Schedule 1.
§ 12 noon.
§ Mr. Stephen Ross (Isle of Wight
I do not know whether the Minister wishes to reply immediately to the hon. Member for Yarmouth (Mr. Fell) or whether I should put my case first and then he can reply later.
I apologise for not being here at the beginning of the Minister's speech. Some of us were taken by surprise by the speed with which the earlier legislation went through the House. I know that some other Members who should be here have not arrived yet, unfortunately, so we may find ourselves having to move amendments that we did not expect to move.
I want to speak first to Amendment (a) to New Clause 1. It stands in my name and seeks to insert the word "advertisers". I am not a lawyer and I always hesitate to argue about matters on which I do not have sound information. However, I understand that the meaning of subsection (1) is that it will be an offence to sell, offer or expose for sale, or have in one's possession for sale, an illegal import. It does not cover advertising for sale which, I am informed, 876 is not an offer but an invitation to treat. Thus, an agent advertising in a newspaper on behalf of someone else would not be covered, and a prosecutor would, in prosecuting the agent, need to prove that the principal had actually instructed the agent.
This could cause difficulties. I therefore ask the Minister to consider whether he can accept the amendment and insert the word "advertisers" after "sells" in line 1 so that the subsection would then read:Subject to subsection (2) below, a person who sells, advertises, offers or exposes for sale".Before moving to the other amendment which stands in my name I draw attention to the words "in a material particular" in subsection (4). They seem to be favourite words of parliamentary draftsmen. An interesting discussion took place about these words in the other place where, incidentally, they debated the whole Bill with great interest and produced some excellent amendments. The Bill is much better for that. We should congratulate the other place and also congratulate the Government on accepting many of the ideas that were put forward in the other place.
I imagine that this is another legal nicety, and I have amendments to deal with it later. However, it appears that in the past the Government have certainly taken this matter on board and omitted these words from the Health and Safety at Work etc. Act and also from a measure which had something to do with wrecks at sea.
I am not sufficiently sound in law to be able to argue this in great detail, but if the Government are to give any consideration to the amendments that I shall explain later, it would be a nonsense for these words to appear in this new clause. I make the point now only because I intend to refer to it a little later. I ask the Minister to consider the point and to let me know what he thinks about it.
I come finally to Amendment (a) to New Clause 5 which was so ably expounded by the hon. Member for Hove (Mr. Sainsbury). As we are very thin on the ground at present, it would be nonsense for us to push our luck on New Clause 5. The Government have 877 specifically stated that they will not accept the clause. They have given sound reasons why they cannot accept it at this stage. I agree that they have tried to meet the point raised by the conservation societies, which have been discussing the matter in recent days. I therefore accept the line taken by the hon. Member for Hove.
I was heartened by the Minister's statement that the Government had a more open mind about Amendment (a) to New Clause 5. I ask the Under-Secretary to accept the amendment. The conservation societies in particular, and many of the noble Lords who spoke to the matter in the other place, also went along with what is proposed therein.
I know that there is some feeling about infringement of the freedom of the citizen—that private bodies, as they probably would be, or private citizens could go to magistrates for leave to search or for a police warrant when they suspected that documentary evidence could be found which could lead to the subsequent prosecution of someone who was illegally holding species which he should not have been holding. Nevertheless, we know that this illegal holding is going on. Unfortunately it is going on to an increasing extent. We have seen evidence of this recently in a television film.
To enforce the Government's own legislation it is vital that this additional protection be provided. The Minister referred to the Royal Society for the Protection of Birds, which alone has reported more breaches than the Customs and Excise claims to have received complaints about, or at any rate to have investigated.
The Royal Society for the Protection of Birds and the Royal Society for the Prevention of Cruelty to Animals have tong experience of exercising the rights of private prosecution responsibly. I do not think that I have ever heard a complaint to the effect that they have not acted responsibly.
Under the Protection of Birds Act the RSPB undertakes about 40 prosecutions a year, in most cases where the police fail to act or where the police ask the society to do so. In all cases the society acts reluctantly because of the expense involved: it has limited finance, which it would much rather use 878 in other ways. It prefers ordinarily to act as expert police witnesses. None the less, to make the legislation enforceable it prosecutes where necessary and the results of those prosecutions are on the record for all to see. They are nearly always successful. The society prosecutes only where it has a sound basis on which to proceed. As far as the society is aware, there have been no instances of "foolish and irresponsible" private prosecutions by members of the public.
§ Mr. Sainsbury
On the subject of private prosecutions, does the hon. Member agree that if it were possible to do so it would be an acceptable compromise for there to be private prosecution by stated or responsible organisations such as those to which he referred?
§ Mr. Ross
I entirely accept that point. It would be much better if prosecution could be left to the responsible bodies. Trouble may arise if private individuals take action. This is a point which we should like to have seen written into the Bill. The excellent track record of the RSPB and RSPCA shows that they are the sort of bodies which should be empowered to deal with these matters.
I can only ask the Minister to say here and now that he will incorporate such a provision into the Bill, because I do not think that we can push it to a vote. If there were sufficient Members present we might, but it would be a nonsense to try at this stage. I hope that my argument, badly put though it has been, has convinced the Minister that this amendment would strengthen the Bill. I am sure that if it is not written into the Bill we shall have to return on another day and amend it to include a provision of this sort, and we all know the pressure on parliamentary time.
§ Mr. Guy Barnett
I am glad in a way that the hon. Member for Isle of Wight (Mr. Ross) arrived a little late. I regret that, in view of the very large group of amendments that I had to explain, I made no comment on the specific point of advertising, which I know is of some concern to him. This is a good opportunity for me to deal with the point fully.
Before I do so. however, I want to thank the hon. Member for Hove (Mr. Sainsbury) for his very reasonable and 879 helpful speech and for his recognition of the extent to which my Department has consulted the Retail Consortium, the conservation societies, and so on, which have been of great assistance to us in the drafting of the Bill and in the amendments that we have now tabled.
I recognise the hon. Member's anxieties about the possession issue, but it is not for want of trying by my officials that we have been unable to solve the difficulties. There might be an opportunity in the other place for the matter to be re-examined and some solution to the problem might be found. But there are considerable difficulties, particularly about possession by a private individual.
The hon. Member for Hove said that the correct way was to deal with imports at the point of entry into the country. He said that solid progress could be made over the offering and exposing for sale of goods. It would be unfortunate if we included in the Bill anything that could give rise to objections, and objections could arise if powers of search were involved. Nevertheless, I shall look at the issue before the Bill goes back to the Lords, although I cannot hold out any hope that we can do anything.
The hon. Member for Yarmouth (Mr. Fell) asked about the increase in the maximum prison sentence. It has nothing whatever to do with inflation, but I understand that two years is in line with the custodial penalties under other Customs and Excise Acts. The change was made to bring this sentence into line.
§ Mr. Barnett
I cannot say. Perhaps it was a mistake, brought to the attention of the Department and the amendment suggested as a consequence to establish a coherence in related penalties.
We resist the proposal about advertising by the hon. Member for the Isle of Wight. This extra offence will add little to the powers of enforcement. To take one example, if someone saw a classified advertisement for a fur coat and suspected that it had been illegally imported, he could ask to see it and then proceed once an offer to sell had been made. At the other extreme, if someone saw a general advertisement for 880 goods of a certain type, he would have great difficulty in proving which particular goods were being advertised. In any event, it would be difficult for anyone to prove that the goods advertised had in fact been illegally imported without going to see them.
I know that there is a general feeling that the advertisement of goods made from endangered species is to be deprecated insofar as it may stimulate demand. But this Bill covers goods from Appendix II species which are commonly on sale, as well as goods from Appendix I, so a blanket ban is hardly desirable. This new clause would not be a suitable vehicle for such a blanket provision. I hope that the hon. Gentleman will accept what I have said.
The hon. Gentleman also spoke of an amendment which he hopes to move later. I had some difficulty in following his argument and I hope that he will be happy if I deal with it later.
§ Mr. Stephen Ross
I thank the Minister for his comments on my amendment to New Clause 5. Time is short and we want to get the Bill through as quickly as possible, but if the matter could be considered and an appropriate provision put into the Bill in another place, I and many conservation societies will be grateful. I realise that the Minister cannot give any commitment. I accept what he says and I shall not press the amendment. I also accept his comments on the second amendment to include the word "advertisers". His argument was sound.
§ Mr. Sainsbury
I am grateful to the Minister. We all agree that the important thing at this stage of the Session is to ensure that the legislation reaches the statute book. We have not got much time, but I shall not be provocative and say why. I accept that the Bill might have to take second place. The prime object is to get the Bill on the statute book, but if it is found later that there are loopholes, perhaps we may come back to it in few years' time with the benefit of experience. Because of the timetable I accept that it might be difficult to do much and we shall bear that in mind when dealing with the lengthy list of amendments.
§ Amendment agreed to.881
§ 12.15 p.m.
§ Mr. Stephen Ross
I beg to move Amendment No. 2, in page 2, line 25, at end insert—'(4A) The Secretary of State shall not grant a licence to import or export a live wild animal for the time being listed in Appendix I or Appendices I and II, of the Convention to be used for the purposes of scientific research unless the scientific authority is satisfied that the species concerned cannot be bred in captivity, and that there is no alternative to the use of an animal listed in that appendix or those appendices'.I rise with some diffidence because I understood that the hon. Member for Gillingham (Mr. Burden) would be here to move the amendment. I also understand that the hon. Member for Watford (Mr. Tuck) cannot be here today. I have not studied the amendment in great detail but I shall do my best to explain it to the House.
In 1975 research establishments in the United Kingdom imported large numbers of primates, rats and mice. Imports involved about 10,000 primates, 23,000 rats—it is odd that we should be importing rats—and nearly 10,000 mice. A total of nearly 44,000 animals were imported and most of the primates are considered rare or endangered.
Before the controls came into effect on 1st January 1976, the Animals (Restriction of Importation) Act 1964 was in operation but that was suspended on 31st December, 1975 under the Import, Export and Customs Powers (Defence) Act 1939. The report of the advisory committee on that Act has recently been published and it is relevant that the committee felt obliged to recommend issuing a number of licences for the apes—the most threatened of the primates. It clearly did not wish to do so and the heaviest pressure came from medical research establishments.
The committee felt that the sharp fall off in imports of other monkeys was due mainly to their having been overexploited. In a section entitled "primates for research" the committee reiterated its concern over the large numbers of primates imported for that purpose and urged once again that captive breeding programmes be developed. It welcomed the initiatives at the Wellcome Institute to breed one species.
It was clearly disappointed, however, at the overall lack of progress in breeding 882 for research over the years. It further deplored that the reports of the Medical Research Council on techniques of breeding animals for research had still not been published. It felt that the publication of such a report would relieve the pressure on wild populations that are now declining by giving a strong stimulus to projects for captive breeding to meet research needs.
This means that, even in the case of highly vulnerable species, conservation advisory committees are unable to resist pressure from research bodies—medical or otherwise. Yet it is known that little effort has gone into the most elementary first step—the breeding of captive animals for research. While many people find even that idea distasteful, especially since much of the research is wasteful or frivolous, it would represent a small step forward to prevent the extinction of species.
The Bill amended in this form would make the Scientific Authority restrict the import for research purposes unless stringent conditions were satisfied. It is perhaps a question of balancing the needs of humanity today against the needs of humanity tomorrow. If we let the trend continue unchecked and a number of animals become extinct, mankind will suffer from knowing that those animals are no more, and if they were essential for research purposes, it will be just too bad.
Under the new controls, the species apparently taking the brunt of research demands in the first seven months of operations were the reptiles. One hundred Caiman crocodilus from South America were imported or given licences for import from the wild for medical research purposes. This species is on Appendix II of the convention, yet all scientific authorities in this field recognise it to be endangered. I understand that there is a proposal to put all crocodilians on Appendix I of the convention. This the Scientific Authority has been aware of, yet it has granted licences to import 100 such animals. There are to be further discussions next month, and there may be some alterations then. I can only conclude that the Scientific Authority is under pressure. The animals are endangered, and the amendment is essential to prevent such pressures continuing.
§ Mr. Guy Barnett
I have every sympathy with the intention behind the amendment. I well understand the hon. Gentleman's concern, but we do not consider that there is any need to write these provisions into the Bill.
I am grateful to the hon. Gentleman for moving the amendment on behalf of my hon. Friend the Member for Watford (Mr. Tuck), who, I understand, cannot be here. He may be reassured that certainly for Appendix I animals his aims are already met. I am advised that the Scientific Authority for Animals carefully scrutinises all applications to import Appendix I animals for the purpose of scientific research. It requires to be satisfied that the research is bona fide, that the particular species is essential for the project, and that there is no captive-bred stock available before it will recommend the granting of a licence. The authority is very knowledgeable about medical research as well as conservation.
As far as I am aware, no import licences for scientific research have been issued in respect of what are now Appendix I species in the past three years or so. For Appendix II animals the convention gives us no remit to inquire as to the purpose of import.
I hope that the hon. Gentleman will accept my assurances and the reasons why I do not think that it is possible for us to incorporate the amendment. I recognise his concern on this general question. If there is any assistance I can give him through correspondence, I shall be glad to give it, but I do not think that the amendment falls naturally within the terms of the Bill.
§ Mr. Stephen Ross
I am grateful to the Minister for that reply. I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Guy Barnett
I beg to move Amendment No. 3, in page 2, line 33, at end insert—'(5A) The Secretary of State may charge for the issue of a licence under subsection (2) above such sum (if any) as is for the time being prescribed by order of the Secretary of State'.
§ Mr. Barnett
The amendments give the Secretary of State a permissive power 884 to charge for licences issued under the Bill and require him to pay any proceeds into the Consolidated Fund. New Clause 3 is also relevant. It provides that the power may be exercised only by order subject to negative resolution.
The provision does not mean that immediately the Bill becomes law charges will be made for licences. There is no present intention to make charges, as no equitable scheme has yet been devised to cover the costs of collecting the money. The provision is inserted because of the possibility that it may be done later.
§ Mr. Sainsbury
Those who deal in the Appendix II animals which are commonly involved in trade will be glad that there is no present intention to charge for licences, although clearly the implementation of the Bill will bring with it some costs, albeit limited and for a good purpose.
It might be worth considering charging for the grant of licences for the import of Appendix I species, for which it seems probable that there will be a further need for investigation and perhaps communication with the country of origin. The costs could well be higher.
§ Mr. Guy Barnett
I cannot give an assurance now, but that is an important point which I shall bear in mind.
§ Amendment agreed to.
§ Mr. Stephen Ross
I beg to move Amendment No. 4, in page 2, line 38, leave out'in a material particular'.
No. 5, in page 2, line 40, leave out
'in a material particular'.
No. 6, in page 2, line 42, leave out
'in a material particular'.
No. 7, in page 3, line 2, leave out
'in a material particular'.
§ Mr. Ross
On a number of occasions there have been arguments about whether the words which the amendment would delete should appear in legislation. Similar amendments were moved in the other place by Viscount Massereene and Ferrard, as reported at column 460 of the Official Report of another place. I support the noble Lord's arguments. 885 Baroness Stedman was somewhat misleading in her reply, reported at column 462.
The amendments would make it an offence to make any mistake on an application, however trivial, if it is made knowingly or recklessly. By no use of the English language can a knowing error be called a mistake, and recklessness involves not caring whether a statement is true or false. It is just as morally blameworthy. The Minister's reply in another place seemed to condone deliberate or reckless deceit to obtain a licence for the import of a species which, by definition, should be strictly protected. That is the sort of attitude that brings the law into contempt.
There are other examples of how these matters have been dealt with where the phrase has been withdrawn. Section 1 of the Protection of Wrecks Act 1973 makes it an offence to disturb a designated historical wreck, whether or not one knows of its designation. I think that I am correct in saying that the phrase was removed by the present Government when the Health and Safety at Work etc. Bill was passing through the other place.
Ignorance is no excuse when it comes to endangered species, which are even more important than wrecks and are irreplaceable. Lies and deceit may be deliberately practiced with impunity—this is unfortunately an area in which it happens—unless the prosecution can prove that it was a material point. Why is it felt necessary to include the words?
§ Mr. Guy Barnett
A similar amendment was withdrawn after some discussion in another place. The amendments would make it an offence to give information which was false in any particular, however trivial, in order to obtain a licence. Therefore, they seem to cover the case not only where wrong information is given deliberately in the hope of obtaining a licence but where accidental errors are made.
Last night, thinking this matter over, I thought of another kind of error that might make someone liable to prosecution in this context. Supposing there had to be a reference to the date of birth and a woman applicant, wishing to conceal her age, made a misleading statement 886 as to her birth date. She would, in that case, deliberately be misleading the Secretary of State in filling up the form, but surely not in a material particular.
The subsection as it stands makes it an offence only to give information which is false in a material particular. I consider that this drafting is adequate to cover the offences which we would reasonably wish to see published. As the wording stands, it is for the courts to decide whether a false particular is in fact "material"—that is, whether it could influence the Secretary of State to make a decision other than the one he would have made if he had known the facts.
If a false particular, however apparently trivial, is in fact held by the courts to be material, the person concerned would be liable to conviction. But if the courts did not consider the particulars in question to be material, it would seem unduly harsh to penalise the applicant for making a mis-statement which would not have affected the decision on his application.
I hope that the hon. Gentleman will see the point that I am making—that this part of the Bill is deliberately tightly drawn so that prosecution, or liability to prosecution, does not arise where it does not have anything to do with misleading the Secretary of State in relation to the possibility of approving a licence.
§ Mr. Stephen Ross
I found the Minister's reply interesting. We could get into complicated arguments on the amendment, but I accept what he has said and I shall not press the matter. However, when we are talking about animals and conservation, I still think that these words will perhaps be used as a protection for people who should not have it. I am sure that the conservation societies feel as I do—that there will be people who will deliberately fill in false returns—we know that that is happening now.
In another place, Baroness Stedman said that she might be persuaded to accept the amendment, but, in the end, noble Lords failed to persuade her, and I have failed again today, I still think that the words should not be in the Bill. The people who deal in this traffic know well what they are doing when they fill in these forms.
§ Mr. Sainsbury
I sympathise with the objective of the hon. Member for Isle of Wight (Mr. Ross), but would he not accept that the courts would consider a matter to be material if someone were making a false statement with the purpose of deliberately misleading the Secretary of State?
§ Amendment, by leave, withdrawn.
§ Mr. Sainsbury
I beg to move Amendment No. 8, in page 3, line 5, at end insert—'(7A) It shall be the duty of the Secretary of State—
- (a) to maintain a register of licences issued under subsection (2) above, and of certificates issued in pursuance of subsection (7B) below;
- (b) to secure that the register is open to inspection by the public free of charge at all reasonable hours; and
- (c) to afford members of the public reasonable facilities for obtaining from the Secretary of State, on payment of reasonable charges, copies of entries in the register.(7B) If a person who proposes to make or has made an application to the Secretary of State for any licence in pursuance of subsection (2) above—I put the Minister's mind at rest at once by saying that this is a probing amendment, even if it is lengthy. The matter was discussed fully on two occasions in another place. It was raised by Lord Wynne-Jones, to whom we should all pay tribute when discussing this clause, and by Baroness White. The discussion there was helpful. It progressed to the extent that, on the second occasion, Baroness Stedman gave an assurance in relation to Appendix I species.
the Secretary of State may issue a certificate to that person providing that subsection (7A) above shall not apply to such of the things mentioned in paragraph (a) of this subsection as are specified in the certificate'.
- (a) applies to the Secretary of State for a certificate providing that subsection (7A) above shall not apply to the whole or part of any licence given, or any terms imposed, in consequence of that application; and
- (b) satisfies the Secretary of State that it would prejudice to an unreasonable degree some private interest by disclosing information about a trade secret,
We always have to remember that we are not in the Bill distinguishing between Appendix I and Appendix II 888 species, for the good reason that there will be transfers between the two, particularly to Appendix I, I expect, from time to time. It makes for easier administration to try to avoid writing into the Bill a provision which will be subject to fairly numerous changes. My purpose with this amendment is to see whether I can get the Minister to take us still further than we got in Lady Stedman's assurance in another place.
I think that all concerned would agree that it is the Appendix I species about which we must be particularly concerned. We must expect that the number of licences granted for Appendix I species will be very limited and subject to careful scrutiny. As the hon. Gentleman has said. Appendix II species are customarily in commercial trade and there will, therefore, be a large number of licences in their case. Clearly, to write in a requirement that one had to publish a register of such licences would not only require a lot of work but would consume a lot of paper, which those of us concerned with the Bill would wish to avoid if possible.
I should like an assurance from the hon. Gentleman that he will publish—not just make available, as was suggested in another place—details of the licences issued for the importation of species in Appendix I of the convention. I suggest that it be done annually.
§ Mr. Guy Barnett
I am grateful to the hon. Member for Hove (Mr. Sainsbury) for explaining the nature of the amendment, and I hope that I can go some way towards satisfying his request.
The subject matter of this amendment has been discussed several times with the conservation bodies, and was debated in another place. I am willing to repeat and perhaps extend the undertaking that the Government gave them. Information on licences for species on Appendix I of the convention can be disclosed because such species are not in commercial trade. It was said in another place that details would be made available to bona fide inquirers. I am now prepared to say that a list of licences, with details, will be prepared approximately annually and made available on request.
The convention allows for captive-bred Appendix I species to be treated as though they were on Appendix II. Such 889 animals may, therefore, enter commercial trade and would have to be excluded from any list.
As regards Appendix II species, I must repeat that details cannot be released because of commercial confidence. If, however, the export of an Appendix II species were to be barred by the country of origin, its status would become similar to an Appendix I species, and we would be prepared to answer inquiries.
The system of certificates proposed in the amendment would be burdensome on traders and costly to administer, bearing in mind that the number of Appendix II Licences issued in a year is approaching 10,000 and we can expect many of the traders concerned to apply for certificates.
I hope that the hon. Member will accept that this new undertaking to make available a list of Appendix I licences is as far as the Government can possibly go, and will be prepared to withdraw his amendment.
§ Mr. Sainsbury
I am grateful to the Under-Secretary of State for taking that fairly substantial step forward. He said that the list of licences issued for species in Appendix I would be prepared approximately annually and made available on request. I suggest that it should be on sale at an appropriate price rather than available on request. One of the problems with something that is available on request is that sometimes those who would most benefit and would like to see it may not know that it is available on request. On the other hand, if it is published at the appropriate price, that is a more practical way to meet the point.
I take it from the Minister's remarks that those species which have in practice become de facto Appendix I species because the export has been barred by the country of origin—or if there is a proposal that they should become Appendix I species and the Scientific Authority is treating the species as an Appendix I species—will also be included in the list of licences that the Minister will publish. I also take it from the Minister's remarks that the names and addresses of the licensees will be included in the information that is published in relation to these Appendix I species.
§ Mr. Guy Barnett
I shall do my best to help the hon. Gentleman. All I can say 890 about his suggestion concerning the possibility of sale rather than being available on request, is that I shall examine it as a possibility. I take this point that if something is for sale it becomes more readily known that it is available. I shall consider it and see whether it is a reasonable proposition.
The status of Appendix II species which are barred by the countries of origin from export from those countries would become similar to that of the Appendix I species, and we would be prepared to answer inquiries. I shall examine whether it would be possible to include them in any list, but I cannot give a definite undertaking at the moment on that point.
With regard to licences, I shall let the hon. Member know the answer to his inquiry. I am unable to tell him at the moment.
§ Mr. Sainsbury
In the light of the Minister's assurances, for which I am very grateful, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Guy Barnett
I beg to move Amendment No. 9, in page 3, line 11, leave out 'for the time being specified in Schedule 3 to this Act' and insert'to which Schedule 3 to this Act for the time being applies'.This is a drafting amendment which brings the wording into line with subsection (1)(c).
§ Amendment agreed to.
§ Amendment made: No. 10, in page 3, line 23, leave out subsections (9) and (10).—[Mr. Guy Barnett.]
§ Clause, as amended, ordered to stand part of the Bill.
§ Clause 2 ordered to stand part of the Bill.