POWER TO GRANT LICENCES (Hansard, 13 July 1981)

§ Mr. Denis Howell
I beg to move amendment No. 290, in page 17, line 9, after 'specify', insert 'each person so authorised,'.
945 I hope that it will not come as too much of a shock to the Minister to be told that the European Parliament has recently made it clear that clause 16 is not lawful in accordance with European law.
We wanted a discussion on the words "each person so authorised". However, I shall confine myself to drawing attention to the Official Journal of the European Parliament, which has recently come to hand.
In written question No. 1877 Mr. Christopher Jackson asked, on the subject of the protection of wild birds: Does the Commission consider that the proposed UK legislation governing the system of licensing for the killing of certain species of wild birds, contained in the Wildlife and Countryside Bill, complied with the requirements laid down in the Council Directive … on the protection of wild birds'?
An answer was given, that The United Kingdom authorities have forwarded to the Commission the Wildlife and Countryside Bill as amended after debate in the House of Lords and the licensing provisions mentioned by the Honourable Member have been slightly changed. Article 9 of Directive … allows derogations from the general provisions of the Directive where no other satisfactory solution is possible. In implementation of Article 9 the United Kingdom Bill provides, in clause 16, for a system of licences. In the Commission's opinion, clause 16 is wider than the Directive permits. Its reasons are as follows:

(1) No provision is made for other satisfactory solutions being sought;

(2) Certain of the purposes for which licences may be granted under the Bill would not seem to be permitted by Article 9 of the Directive and in particular:

— the protection of any collection of wild birds;

— falcony;

— the provision of food for human consumption;

— public exhibition or competition;

— taxidermy;

— photography.

The Commission would, however, underline that in specific cases some of these activities may be permitted". I could quote the rest of that answer, but I shall not.
It seems that the Commission is at odds with the Government on the question whether clause 16 is within the terms of the directive. The Commission feels grave doubts about the matter. Having raised the point, I shall leave it to the Minister—if he cannot satisfy us this evening, as I did not give notice that I would raise this important point—to come back to us, correspond with us and perhaps seek to deal with the matter in another place or in another way.

§ Mr. Monro
I am grateful to the right hon. Member for Birmingham Small Heath (Mr. Howell) for the way in which he put his point. We are aware that there are different interpretations of all sorts of legislation.
In dealing with clause 16 it will help if I speak about the principle behind our licensing proposals, how we see them working, and the relationship with the birds directive. From its inception, we have seen clause 16, so far as it relates to birds, as needing to be read with article 9 of the EEC directive on the conservation of wild birds. So far as it relates to animals and plants, it should be read in conjunction with article 9 of the Berne convention on the conservation of wildlife and habitats. While the wording of the clause stands in its own right, we have always regarded the clause as the United Kingdom's legal implementation of the requirements for strict control contained in article 9 of the directive and of the convention, while its administration would be governed by the conditions that have to be met in those articles to justify derogation.
946 There have been suggestions, mentioned by the right hon. Member, that the Bill does not conform with the requirements of the directive. It might be helpful to explain the relationship between directives and domestic legislation. Article 5 of the Treaty of Rome says that a directive shall be binding as to the result to be achieved"— that is the crux— upon each member state to which it is addressed, but shall leave to the National Authorities the choice of form and methods". Provided that the statutory powers are sufficient, the use of those powers is the test. The Bill has been framed to make the administration flexible and effecive. I ask hon. Members to look at clause 16 afresh in the light of that explanation. We have to report annually to the Commission on derogations under article 9. Those reports will be published.
2.30 am
The Government recognise that they have a duty in their administration of the Bill, in the spirit and the letter of the directive, to ensure that relaxations of the general protection of the birds should be the minimum needed to prevent severe harm to agriculture or other legitimate interests affected by birds. Wherever the conservation status of a species is other than secure there should be a presumption that licences will be given sparingly, and only where practical—and "practical" must here take due note of cost—alternatives have been considered and in some cases where they are already in use.

§ Mr. Hardy
I agree with what the Minister says, but it seems to conflict to some extent with the Department's document issued on 28 August 1980, which gave examples of licensing and referred to the brent goose, suggesting that a licence could be limited to occupiers of agricultural land in Essex, Hampshire, Kent, Norfolk, Suffolk and East and West Sussex, which covers virtually the entire range in Britain of the dark-bellied brent goose. Another example was that of the cormorant, in respect of which it was suggested that a general licence covering Cumbria and all of Scotland could be available. Has the Department's policy changed since those extremely extensive areas were mentioned?

§ Mr. Monro
Partly because of the interpretation of the right hon. Member for Small Heath of the European attitude, we should perhaps discuss where we stand on the matter.
We set out in the consultation document where we thought we stood in 1980 and originally in 1979 when it was drafted, but matters evolve, as they have throughout the passage of the Bill. However, what I have said shows that we feel that we are clearly within our agreements with Europe, although we shall consider carefully what the right hon. Gentleman said. If further steps need to be taken, we shall take them.

§ Mr. Denis Howell
Having had that assurance, I beg to ask leave to withdraw the amendment.

§ Mr. Denis Howell
I beg to move amendment No. 291, in page 18, line 7, leave out 'from time to time' and insert 'regularly'.
I hope that these matters can be dealt with regularly, and not from time to time, and that the Government will accept this small amendment.

§ Mr. Monro
There may be an interesting distinction between "from time to time" and "regularly", just as there is between "may" and "shall". However, the advice that I have is that there would be no point in making the change. It is entirely a matter of opinion whether "from time to time" is more frequent than "regularly". It probably is. "Regularly" may mean once every five years, and I do not believe that that is what the right hon. Gentleman has in mind. "From time to time" may mean more frequent than "regularly", so I shall leave it at that.

§ Mr. Howell
If I had time, I should pursue the matter—regularly. However, as I do not, I shall come back to it at another time.
Having said that, to allow further time for consideration, I beg to ask leave to withdraw the amendment.