Official Report of the Committee on the Deer (Amendment) (Scotland) Bill [H.L.]

HL Deb 06 March 1996 vol 570 cc55-106GC

Wednesday, 6th March 1996.

The Committee met in the Moses Room

at half past three of the clock.

[The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]

Clause 4 [Marauding deer]:

Lady Saltoun of Abernethy moved Amendment No. 33: Page 3, line 33, after ("authorisation") insert (", and after making all reasonable efforts to consult the landowner and occupier of the land in question or their agents or servants,")

The noble Lady said: In moving this amendment I wish to speak also to Amendments Nos. 52, 54 to 56, 60 to 63, 67, 68, 72 and 74. When the Select Committee met in Edinburgh I asked the chairman of the Red Deer Commission why only the occupier was to be notified or authorised and not the owner. He replied that one of the big problems was that owners lived in the south of England. They were on their deer forests for only three weeks of the year and were very hard to reach in an emergency. Their factors often lived a long way from the scene of action.

That is very often the case, but by no means always. I can think of many large deer forests where the factor lives and works on the estate. Everyone knows who he is and his telephone number. I can even think of some where the owner lives on the estate. However, there is someone who is always on the estate except when he is away on his annual holiday, and that is the stalker. He is probably the best qualified person to do any shooting required, with the minimum of suffering to the beasts involved, especially if it is at night.

The amendments are not designed to prevent the commission acting unless it has the consent of the owner. They are merely designed to ensure that some attempt is made to consult the owner, factor or stalker about the problem and to give them the chance to do the job themselves. Probably only a telephone call followed by a fax would be necessary. There can be few, if any, stalkers nowadays who do not have a telephone and most factors have faxes as well. Scarcely any delay need be involved, except of course at the weekend. I do not believe that the deer commission works at weekends any more than anyone else.

In the case of Clause 4 I think and hope that the amendment is unnecessary because the clause only replaces subsection (1) of Section 6 of the 1959 Act. Subsections (2) to (8) still stand and I believe that subsections (2) and (3) cover the point. Clause 7 is a completely different matter. It is a new clause and has no mitigating subsections of the 1959 Act. I beg to move.

The Earl of Mar and Kellie

If the Minister is considering taking Amendment No. 33 on board, I am very worried about the wording and the use of the word "servants". It gave me an apoplectic moment when I first saw the word. However, when I looked through the 1959 Act, I found that I was due another apoplectic moment on discovering that even the Red Deer Commission has servants. It reminds me of the trial of Lady Chatterley's Lover where the QC said that it was not a suitable book for anyone, let alone his servant, to read. Even in 1962 that terminology was past its sell-by date. We have enough problems getting incoming landowners to recognise and accept the conventions of landowning in Scotland without continuing to use the word "servant". Surely "staff" would be the most appropriate broad term. It has two merits: it is better for the image of landowning in Scotland, and it has a less detrimental effect on the recruitment of estate staff. Few of them can enjoy living with the charade of subservience. Will the noble Earl assure us that when the Act comes up for consolidation such terminology will be altered?

Lady Saltoun of Abernethy

I have to tell my noble kinsman that the word was only put in because it mirrors the wording in the 1959 Act. Whether it will be possible to put in something that the noble Earl will find slightly less offensive, I do not know; I am not very good at legal terminology. Although it slightly worried me at the time we put it in, I do not think that prospective stalkers read the Act before considering whether to apply for a job.

The Earl of Mar and Kellie

May I reply to my noble kinsman - if that is the correct terminology? While enjoying my second apoplectic moment, I noted that the 1959 Act was full of references to staff as "servants", so I began to understand why the amendment was written in the way that it was.

Lord Pearson of Rannoch

Whatever terminology is eventually chosen for these amendments, I support them. I would have thought it crazy for any future commission to try to carry out some of the activities that are envisaged by these clauses without consulting the stalker. I can think of no better way of infuriating the stalker and many of his friends locally than for this kind of activity to be envisaged without involving him fully. Once again, I would not want to be part of the raiding party if the local stalker had not been fully advised. Therefore, I support the amendments.

Lord Glenarthur

I, too, wish briefly to support the amendments. The important words are "reasonable efforts". I quite understand that it will not be possible in every case, but those concerned should certainly make their very best efforts to consult. I very much endorse the amendments.

Lord Mackie of Benshie

I am a little doubtful about this, quite apart from the wording which is a nice touch. I should have thought that "agent" was enough to discuss. It is all very well to put in a word like "servants" that goes right down the scale, but elsewhere in the Bill there is considerable provision for consultation with the owner. We are talking about an emergency situation as such, and obviously the commission would try to get hold of the factor, but how far down the scale should one go? Obviously the stalker knows, but it is not his responsibility. If one cannot get hold of the factor or agent—call him what you will—one should proceed. The term is too wide, and if we stick it in all over the Bill it will give a wrong impression.

Baroness Carnegy of Lour

I would like to support my noble neighbour, Lord Mackie of Benshie. It is not very difficult to imagine how awkward it could be if the commission were to go to an employee and say something different from that which has been said to the factor. It is the factor's job, surely, to acquaint the employees with what is intended and discuss it with them if the agent is there? The important thing is to know how my noble friend the Minister intends to answer the point and whether he will make it quite plain, if he does not like the amendment, how this consultation will be done, because obviously the consultation is absolutely critical.

The Parliamentary Under-Secretary of State, Scottish Office (The Earl of Lindsay)

Let me right away prevent the noble Earl, Lord Mar and Kellie, from having apoplexy. We are looking at the use of the term "servants" which sterns from the 1959 Act and therefore there was good precedent for using that term in the amendment. But as part of the consolidation process we will be seeking to modernise such terms which need modernising, and it may well be that that will be one of the words which will be modernised.

I will speak to the whole group of amendments because that is how the noble Lady, Lady Saltoun, introduced Amendment No. 33, and I hope that I can bring substantial reassurance to all noble Lords who have spoken. As regards Amendment No. 33, the remainder of Section 6 of the 1959 Act, which of course will continue to be valid, will I hope bring comfort. Under Section 6(2), for instance: "where the Commission are satisfied that the deer causing damage as aforesaid come from particular land the commission shall in the first instance approach any person having the right to kill deer on that land and request that they take action against the deer. In practice the first point of contact therefore will be the owner of the land from which the deer are coming.

Under subsection (3), only if that person is: unable or unwilling to comply with the terms of the request can the commission then issue an authorisation under Section 6, and where circumstances allow under the provisions as they stand at present, therefore, an opportunity will be afforded to the neighbouring land holders to take action themselves. This is an important safeguard, and it guarantees that the owners and other neighbours who have a right to take or kill deer are notified in advance of a marauding deer power being enacted.

In addition, subsection (6) sets out that the commission has a duty: to give the owner of any land which is to be mentioned in an authorisation under this section such notice of their intention to issue that authorisation as may be practicable This is in addition to the other safeguards that I have already mentioned.

Subsection (5) also places the commission under a duty to give warning as soon as practicable to any person likely to be on the land in question, to prevent danger.

My final point as regards Amendment No. 33 is that government Amendment No. 30 will ensure that the commission will only be embarking on this route, first, if it is a genuine emergency, and, secondly, if there are no other powers available to the commission with which to meet that emergency. In other words, it is not only action that is taken in an emergency, it is also a last resort option, and those other powers, as we have discussed in Committee, include the promotion of control agreements, the granting of authorisations and the making of control schemes.

I now turn to Amendments Nos. 52 and 60. As a matter of courtesy, one would of course expect the owner of land, or his agents, to be notified of the fact that night shooting of deer, or the moving of deer by vehicles, was about to be authorised. However, I am not sure that that should fall to the commission to administer. The noble Lady, Lady Saltoun, suggested that it may be that even the deer commission shuts down at weekends. I am given to understand that some members of the deer commission work a seven-day week. They do much of their visiting of deer management groups at weekends, so they are a hard-pressed organisation in terms of the workload they seek to achieve. What would probably be better is that the person who is given the authorisation is the person in charge of making sure that the owner is alerted. Therefore, my worry about the amendments as they stand is the danger of a disproportionate workload falling onto the commission. However, as I have said, I hope that there are other ways of approaching that and I will come on to that in a second.

I would also point out that, in any case, if the commission was granting authorisation for night shooting, they would have to take the balancing duty—in other words, the interests of the owner of that land—into account in granting that permission. Also, it is worth drawing noble Lords' attention to the two critical circumstances which must be met before an authorisation for night shooting can be granted. The first is that the shooting is necessary to prevent serious damage. In other words, it is necessary to do it at night-time; it cannot be done during the day-time to prevent that serious damage. Secondly, that there is no other method of control which might reasonably be adopted that would be adequate in the circumstances.

It may be of interest if I just point out that the new Section 33B, introduced by paragraph 28 of Schedule 1, obliges the occupier to supply the owner with information on the number of deer shot by virtue of Section 33(3) or the new Section 33A(2) or As I said, I believe it is the normal courtesy that the occupier of land should notify the owner of such authorisations in the same way that he is encouraged to notify the owner of any beasts taken.

In agreeing to extend the power of authorisation to cover all night shooting, it was made clear that the requirement to seek authorisation would not impose an unnecessary burden on those with a legitimate case to shoot deer at night. At the same time, I understand the points made by Members of the Committee, and I shall therefore look again at the procedures adopted by the commission to see if they can stress to those receiving authorisations that those with the right to kill deer on that land—that is, the owners—should be informed of action taken under those authorisations. I hope that with that reassurance the noble Lady will feel able to withdraw Amendments Nos. 52 and 60.

In this grouping, and I believe therefore the focus of the Committee, were Amendments Nos. 54, 55, 56, 61, 62, 63, 67, 68, 72 and 74, and unless the Committee have another view, I will speak to them right now.

Under proposed Section 33A, the commission will be able to issue authorisations to the occupier, or any person nominated in writing by the occupier, to carry out night shooting or to use vehicles to drive deer, or to shoot out of season to protect from serious damage unenclosed woodland or the natural heritage, or in the interests of public safety. The amendments propose that the commission should also be able to authorise the owner or his agents or servants.

I would point out one fact that has survived since the 1959 Act. If the owner or his agents have the permission of the occupier, it is then possible for them to carry out the work as the occupier's nominee. However, on night shooting there is clearly a question of safety that we seek to address. We continue to consider it appropriate that shooting should be in the control of the occupier. I hope that the reassurance I gave on earlier amendments that the owner should be notified in some way may be of comfort. We are worried that if there are different authorisations for night shooting on the same ground safety is compromised. Also, damage to the occupier's interests must be addressed which again dictates that he must be in control of the measures to make sure that they have the desired effect in terms of protecting his interests.

The provision for the moving of deer by vehicles is a more general provision. In some circumstances it is likely that owners would want, and indeed would be in a position, to undertake this kind of work. The owner, of course, can do it with the occupier's consent, but the purpose of the amendment is one that we wish to examine. Amendments Nos. 61, 62 and 63 are ones I should like to consider.

I should also like to consider Amendments Nos. 67 and 68. They deal with shooting out of season in unenclosed woodlands which again raises questions of safety and the legitimate interests of an owner. I make the same comment about the natural heritage.

Given the reassurances on Section 6 of the 1959 Act and the provisions that will run through, and what I have said about the amendments I want to consider, I hope that noble Lords will feel content.

Lord Pearson of Rannoch

There is one other point my noble friend may wish to consider when he comes to clarify the matter. Section 6(2) of the 1959 Act states: Where the Commission are satisfied that the deer which appear to be causing damage as aforesaid come from particular land, and that any person having the right to kill deer thereon will forthwith undertake the killing of the deer first-mentioned". In other words, the 1959 Act seems to say that permission will be given to people to kill deer thereon, which is where they came from underlining the marauding nature of the deer in question.

The Bill we are asked to sanction says that they may, follow and kill on any land mentioned in the authorisation in other words, where they may still be, and therefore they might not be marauding deer at all. I only mention this because it underlines the necessity to know what we mean by the word "marauding", which at the moment we do not.

The Earl of Lindsay

The repeated definition that we are able to give of "marauding" is that it refers to those deer which are not being controlled effectively, and which are not normally resident where they are causing the damage. My noble friend knows that we are interested in a legally watertight definition of marauding deer, if that is possible, and it is something we will continue to look at. I also remind my noble friend that Section 6(6) of the 1959 Act ensures that anyone whose land is noted in an authorisation will be contacted. The last point is that my Amendments Nos. 23 and 34—Amendment No. 23 having already been accepted—seek to bring some clarification to the area that my noble friend has mentioned. I shall, if necessary, photocopy the relevant part of Hansard for him later on today, rather than perhaps go through the same explanation a second time.

Lord Mackie of Benshie

It is not a question of common sense but a question of marauding. I know we need a definition of some sort but deer come and eat my turnips—and my turnips are good turnips—and you can bet your boots that those deer will come back for more. Therefore, if you have to pursue them onto other land in order to kill them, moving them will not do any good; they will come back. I should have thought that a certain amount of common sense with the broad definition would work. The commission will be composed of sensible people, whichever Secretary of State appoints them, and we can make do much of the definition.

Lord Pearson of Rannoch

We all hope that the commission will be composed of sensible people but at the moment, as the Bill is drafted, we have no guarantee of that matter. I agree with the noble Lord, Lord Mackie, that the definition of marauding should be very simple. The dictionary simply describes it as wandering or raiding in search of plunder. In the case mentioned by the noble Lord, that plunder consists of his turnips, which I am sure are excellent and which I am sure the deer will return to eat. The point I am making is that in the original Act those deer had to be followed and killed where they came from. It did not necessarily permit them to be shot when they were actually enjoying the noble Lord's turnips. In the Bill that we are considering, they could be shot in the act, if you like, of eating the noble Lord's turnips.

I merely point out that difference between the two pieces of legislation and use it to underline the necessity of reaching a commonsense understanding of the meaning of the word "maraud" when the powers of Clause 4 come into action and the powers of Clause 5 do not have time to operate. We have no difficulty with Clause 5 but we still have considerable difficulty with exactly what circumstances could trigger the powers of Clause 4 as drafted.

The Earl of Lindsay

I would just add one more point at this stage; otherwise Clause 4 will detain us for days. If the deer can be shot where they are marauding, then a marauding deer power cannot be authorised, because in fact there is another option available, which prevents those deer needing to be followed and managed somewhere else. The vital parts of a Section 6 authorisation, as it would be amended, are that there must be serious damage, it must be an emergency and no other option can be available to the commission with which to try and manage those deer. I stress that if those deer can be managed on the site where they are actually marauding, then there is no need to trigger a Section 6 power.

Lady Saltoun of Abernethy

I shall, of course, be withdrawing the amendment, because I cannot do anything else here. However, I shall read very carefully what the noble Earl has said. I am very glad that he will be looking at some of the later amendments. I should like to make three points. The owners or their representatives should be notified before the killing or the driving is done, not afterwards when it has been done. Also I think it should not be left just to good manners and good practice. It should be on the face of the Bill.

If the deer commission works at weekends, then it is all the more important that the stalker should be included among the people with whom it can get in touch, because the stalker almost certainly will be available at the weekend, whereas the factor and the owner may not be. Two telephone calls, in my opinion, will not add a great deal to the workload of the commission.

Finally, I am not at all sure that occupiers are always the most suitable persons to do the job. They may not be good shots and they may not possess a rifle, whereas the stalker is almost certainly a very good shot and has the estate rifle at his disposal. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

TheEarl of Lindsay moved Amendment No. 34:

Page 3, line 34, leave out ("any land") and insert ("such land as may be").

The noble Earl said: I spoke to Amendment No. 34 when moving Amendment No. 23.

On Question, amendment agreed to.

4 p.m.

The Earl of Lindsay moved Amendment No. 35: Page 3, line 42, at end insert— ("( ) After subsection (8) there shall be inserted the following subsection— (9) Where the Commission have authorised the killing of any deer under this section they shall have power to dispose by sale or otherwise of the carcase of any deer so killed.".").

The noble Earl said: In moving this amendment I shall speak also to Amendments Nos. 48 and 91 which are my own amendments.

The government amendments would clarify the circumstances under which the commission would have the power to dispose of carcasses. Section 13 of the 1959 Act gave the commission the power to dispose of the carcasses of all deer killed "under their authority". Under the proposed new Section 33A, the range of circumstances under which the commission will authorise action against deer is wider than at present and it is not intended that the commission should have the power to dispose of carcasses in such wide circumstances. It is proposed to restrict the commission's powers to dispose of carcasses to those situations where it has been involved in the taking or killing of deer either directly or through contractors.

The practice of the commission is to exercise the right to dispose of carcasses only when it needs to recover the expenses of its own stalkers or contractors authorised by the commission to do the job. The circumstances are reasonably rare when this has to be activated. I beg to move.

Lord Pearson of Rannoch

My Amendment No. 92 is grouped with these amendments, and goes in precisely the opposite direction. It seems to me that with the doubt surrounding the way Clause 4 can be used we could have a situation where large numbers of deer could be driven by helicopters into corrals and massacred by the deer commission or its agents.

At the moment, as I understand it, my noble friend the Minister is resisting the idea that the owner, his agent or his servants would even be informed of this exercise. It therefore seems to me completely inequitable that the commission should be able to add insult to that injury by sending the bill for the exercise to the hapless owner, who may not even have known that the action was going to take place. I refer to the use to which Clause 4 could technically be put as we stand here today.

The dimension of these expenses, with the use of helicopters, goes up enormously. It is not impossible for the commission to decide, as I understand it—we may come to it later today—that quite a large area of ground and open hill should be cleared of deer. It might decide that it takes three helicopters two days to do the job, each helicopter costing about £;l500 an hour. They might make a mess of it the first day; the deer might decide they did not want to be driven into that corral; they might go back to where they came from, marauding or otherwise damaging the natural heritage, whatever that may eventually turn out to be. To send the bill for many thousands of pounds to the owner for this exercise seems to me to fly further in the face of natural justice than I would have thought tolerable, even by the authors of this Bill. I therefore propose Amendment No. 92, which would make it clear that any expenses incurred by the commission in the performance of its duties should be the debt of the commission.

I would also add that normally when the deer are killed they belong to the person on whose land they fall. At that point they do become a legal possession of the hapless owner. I therefore propose Amendment No. 92 and would be very interested to hear from my noble friend whether he has thought of the expenses that could be involved in this act of legalised confiscation and piracy.

Lord Mackie of Benshie

I think the noble Lord Pearson of Rannoch ought to go in for writing novels of a very exciting character, because the thought that there will be helicopters rounding up the deer and driving them into corrals and then slaughtering them with sub-machine guns is the sort of picture he is painting. I understand these amendments, but perhaps the Minister will put me right. It foxed me a little that in some cases an amendment was down to sell the deer and in other cases it was down that you could not sell the deer. I assume that if, after consultation with the owner and his agent, his stalker and his butler, he still refuses to do anything about it and the commission has to spend money in culling out the deer, then the commission will be quite legitimately entitled to sell the deer and retrieve some of the expense, but if he co-operates and kills the deer then he can keep the deer. It seems to me a perfectly simple solution. I should be glad if the Minister could tell me whether I am right in this.

Lord Glenarthur

I listened carefully to what the noble Lord, Lord Mackie of Benshie, said. It is important in all circumstances to understand two things, so far as I can tell from the Bill. Notwithstanding the fact that extravagant language is never very helpful, the fact is that the possibility of driving deer in the way that my noble friend has described is very real. We are dealing with a Bill which will open up all kinds of doors unless the precise terms are properly described, and that is what my noble friend is seeking to do, and to ensure that that point is well understood.

I do not think it is fair to challenge my noble friend in quite the way that the noble Lord, Lord Mackie of Benshie, has done. Having said that, if I understood my noble friend Lord Lindsay correctly, he is saying, as regards these amendments relating to the sale of deer, that, under Section 6 of the substantive Act—and I may have misunderstood him—it may be necessary to sell the carcasses in order to recoup the cost of dealing with the deer in the way that is necessary, but that under various other sections of the existing Act, that authority would no longer stand. In short, I believe he is saying that he is tightening up the existing Act to some extent. Am I right?

The Earl of Lindsay

I am grateful to my noble friend Lord Glenarthur and to the noble Lord, Lord Mackie of Benshie, for returning some sanity to the discussion, because my noble friend Lord Pearson really had departed well beyond what I have said to date, and indeed what is said either in the Bill or the Act. The point of my amendments was to exclude some of the additional areas in which the commission could authorise action—for instance the new authorisations under new Section 33A—from the commission's right to recoup costs through the disposal of carcasses.

The only people the commission could authorise to use a helicopter or other vehicle to move deer for management reasons would be the occupier or his nominee; i.e. not the commission itself. In fact, the only area where we are talking about the commission needing to recoup costs where it, itself, has perhaps employed its own stalkers or contractors would be, as my noble friend Lord Glenarthur has just said, either in Section 6 or Section 7 schemes. The general principle of the commission being able to recoup costs in those circumstances has been established since 1959, but the controversy that they may have caused has been remarkably insubstantial and insignificant. We just want to ensure that the practice of carcass disposal by the commission is retained in the form envisaged under the 1959 Act and is not suddenly broadened in the proposals before us in the new Section 33A. That is the purpose of the government amendments, but it should also bring considerable reassurance to my noble friend Lord Pearson.

Lord Pearson of Rannoch

I am grateful for that explanation if my noble friend is saying that, under the provisions of Clause 4 as it will stand, helicopters cannot be used to drive deer. That had not been my understanding to date. It may be that in jogging backwards and forwards between the various Acts I have misunderstood the powers which it is proposed to grant to the commission or anyone appointed by the commission. As I see it, under the authorisation of certain Acts, it may be that that applies only to night shooting and nothing else—I do not know. If I have misunderstood the drafting of the Bill, then of course I apologise to the Committee. The simplest way to do that would be to ask my noble friend the Minister to assure me that Clause 4 of the Bill, as it will emerge, can in no way be used to authorise the use of helicopters to drive deer into corrals.

I would say to the noble Lord, Lord Mackie of Benshie, that the picture I have given to the Committee is not entirely fanciful. It has actually happened in New Zealand where 3 million deer were shot in two years by the use of helicopters. I admit that, in New Zealand, they were actually shot from the helicopters. They were driven up the hill so that they stood exhausted on the top. In that way 10 times the Scottish wild deer population was obliterated in New Zealand in two years. I see no reason to imagine that what I have depicted to the Committee will be the subject of a future best seller. What I have depicted is perfectly possible and my understanding is that that is what the Bill authorises. If it does not, I withdraw the amendment with relief. Otherwise, I am simply making that point that the ability to charge the hapless owner for the destruction of his property is going too far.

The Earl of Lindsay

The owner would be asked to allow his carcasses to be sold by the commission only after the commission had employed its own stalkers or contractors to carry out the work where that owner or occupier had in the first place failed to carry out the action that had been required.

Lord Pearson of Rannoch

Perhaps I may interrupt my noble friend in order to pursue the point of Clause 4. Could that happen under Clause 4, because under Clause 4 we may not even have found the owner? In view of my noble friend's reply to the previous amendments this afternoon, we may not be about to find the owner or the stalker. It therefore seems a little unfair for this to happen and then for him to be charged for the expenses which could arise with the use of helicopters which are a new facet of this Bill. Helicopters were not available for this kind of operation before, and it seems perfectly reasonable to point out that the expenses would be very much larger.

The Earl of Lindsay

I think it best if I offer my noble friend a meeting because his understanding both of what I have already said today about the rights of owners and the extent to which they will be contacted, and his understanding in particular of Clause 4 which deals with the marauding powers, is so wide of some of the other assertions he has been making and the references to New Zealand and so forth that, rather than waste the Committee's time, it would be better if we sat round a table and sorted this out.

Lord Pearson of Rannoch

I am grateful to my noble friend for any offer of a meeting. I hope he will be able to convince me at that meeting that I misunderstood the Bill as drafted.

On Question, amendment agreed to.

4.15 p.m.

Lord Pearson of Rannoch moved Amendment No. 36: Page 3, line 42, at end insert— ("( ) This section may not be used by the Commission in any attempt to enhance the natural heritage'"').

The noble Lord said: This amendment is grouped with Amendment No. 47. Once again it is an attempt to understand how the new powers which are proposed in this Bill, particularly those in Clause 4, will be used. Those who support the amendment say that these powers should not be used to enhance or improve the natural heritage. We understand that they may be used to prevent further damage, but not to repair habitat which some may judge has been damaged in the past. Under Clause 4, as drafted, there is not a clear understanding of how the natural heritage interest will be affected. Indeed, the definition of "woodland" in Clause 4 seems extremely wide. We do not know where we stand with this intention.

I should remind the Committee that Scottish Natural Heritage, in a recent position paper entitled, Red Deer and the Natural Heritage, said in broad terms, and I quote: The restoration of the native woodland eco-system is at the very heart of our vision for the uplands.

What these amendments are designed to do (obviously they are probing amendments at this stage) is to get my noble friend to be very precise as to what extent these amendments can be used to improve the natural heritage. I understand that he said they can only be used when there is serious damage or even damage, but as I said at our last Committee proceedings, damage and serious damage are matters which are in the eye of the beholder. Bearing in mind that the value of a deer forest can be very considerable to the owner—and no doubt my noble friend will put me straight when we have our meeting—as far as I can see, Clause 4 could be used to reduce that value very considerably. We need to be clearer, certainly clearer than I am at the moment, as to how these new powers will be used. I beg to move.

Lord Carmichael of Kelvingrove

I also feel that the term "natural heritage" is rather wide and needs definition. I have been given some notes on this which I had not expected to receive at this point, but I am concerned about the term "natural heritage". I suspect at this stage that the question of "natural" may be interpreted to mean grouse moors which are arguably anything but natural heritage. Most grouse moors are the product of the clearances of the old Caledonian Forest. In fact, some of the early Scottish history books refer to the ruthless clearing of the old Caledonian Forest in the last century for the production of sheep and for grouse shooting. I would certainly oppose the disruption of deer merely to enhance the dubious moral activity of shooting birds for sport. I wonder therefore what is meant by "natural heritage". Does one start in 1850 or now?. Can the Minister help with this?

Lord Mackie of Benshie

I have not hit a grouse for a very long time! However, I do know that to put a phrase like this into a Bill is political madness. This section may not be used by the Commission in any attempt to enhance the natural heritage". That is surely a very foolish thing to put into any Bill. The natural heritage is a question of definition. It may be defined as grouse moors, which is against the present thinking. But if the people of this country feel that the hills of Scotland should go back to an area of natural regeneration and into a different form from what they are today, the owners of the land have no right to stop them. It is perfectly reasonable to say that if the Bill can be useful in restoring or enhancing the natural heritage in any form, it should be done. But to include a clause saying that it shall not be used to enhance the natural heritage is, in my humble view, political foolishness.

Lord Glenarthur

My noble friend was, I believe, trying to tease out from my noble friend Lord Lindsay exactly what are the parameters of the various clauses referred to, particularly those connected with Amendment No. 36, in order to establish just how wide the powers are to override all the other interests involved. The noble Lord, Lord Mackie, will know that a substantial part of the economy of Scotland where deer are to be found concerns stalking and such other things, and they could be seriously damaged by any attempt to override that interest by dealing purely with the natural heritage. It is, therefore, as unreasonable as all that. On the contrary; it would be helpful to the Committee to have an early indication from my noble friend the Minister of just how wide these powers are likely to be and how they are likely to be used in practice.

The Earl of Lindsay

I have made it abundantly clear—indeed, the draftsman makes it abundantly clear—that the Clause 4 powers amending Section 6 of the 1959 Act and the amendments to the Section 7 control orders in Clause 5 can be employed only to protect the natural heritage against serious damage. They cannot be employed to protect the natural heritage against damage that is less than serious; they cannot be employed for any form of enhancement. There are other avenues and opportunities available for the enhancement of the natural heritage and it may be that a control agreement, as part of its agenda, can have some sort of enhancement as one of its objectives. Most owners and occupiers of a deer range, in seeking to enhance the natural heritage or where others are seeking to persuade them that they should do so, may well be looking to the Forestry Commission or to SNH for the sort of programme to follow, but the application of the powers outlined in Clause 4, marauding deer powers, or in Clause 5, control schemes, are only able to be used where they will prevent serious damage. I made that abundantly clear, and the Bill makes that abundantly clear. If in a flash of inspiration any of the advisors working with me on the Bill can find a legally safe way of making it even clearer to noble Lords, I myself will bring the amendment forward, but I am not wracked with worry if a legally watertight definition of the word "enhancement", which does not prevent protection against serious damage, can be found, vis-à-vis the clarity which we have got into the Bill in confining those powers to the prevention of serious damage.

The concept of natural heritage is a broad one, especially in a country like Scotland which has such an extraordinarily diverse topography, and therefore for the noble Lord, Lord Carmichael, to seek to exclude grouse moors or to have some moral uncertainties about deer and how they are managed traditionally, I find somewhat strange. The well-managed grouse moors provide an essential part of Scotland's natural heritage, and the red grouse itself is one of Scotland's unique contributions to global biodiversity. The contribution that grouse moor management can make to Scotland's landscapes and to its habitats is crucial.

I also would be somewhat cautious about mocking or undermining the sporting methods used in traditional deer management, in that they provide vital income to many remote areas. If you are supporting an extra family in the area, from the sporting income which is available, you are also supporting the garage where the family buys its car, the school where the children go to school, the shop where the family buys milk and so forth. Therefore, I think that that dimension of deer management should be encouraged.

I would say to my noble friend Lord Pearson that the definitions of natural heritage extend from woodland to the habitat within woodland, and indeed to the habitat that we find outside woodland. At the same time, I hope he will take some comfort from the fact that long-term damage cannot be tackled through Clause 4 powers. For instance, you cannot say that you have an emergency situation where no other options are available to you and you are preventing the serious damage which has occurred unexpectedly, when deer have been in that area and behaving in that way for many years. Therefore, we are looking in terms of emergency protection of the natural heritage against serious damage, for instance, in circumstances where deer come unexpectedly on to ground where they are not usually resident and where the natural heritage of that ground, which is notable, is suddenly subject to serious damage. Then, if there are no other powers available to the commission—and there are considerable other powers available to the commission—and one is at the last resort option, only then can the Section 6 marauding powers be activated as amended by Clause 4 of the Bill.

Lord Pearson of Rannoch

I am most grateful to all noble Lords who have spoken and especially for the somewhat unexpected support of the noble Lord, Lord Carmichael of Kelvingrove. I should just say that the forests—that is, the trees—have been on the retreat probably since the Bronze Age and certainly since Roman times. They were in fact destroyed not by grouse moor owners but by the requirements of the charcoal burners and the Navy over many centuries. Then, of course, 150 years ago, we had the infamous Highland clearances which brought sheep, not deer, to the Highlands and it was the sheep that then paved the way for what became the grouse moors and then the deer forests.

If the Committee will forgive that historical comparison, I agree with the noble Lord that a more precise definition of "natural heritage" would be very convenient.

The noble Lord, Lord Mackie of Benshie, asks, if the people of this country decide that they want the whole place to be covered in trees and returned to the Roman period or whatever period it may be, who are the landowners to stand in their way? I would have to reply—I believe my noble friend the Minister indicated this—that if that is the way the country wants to go, then it should be by negotiated management through Clause 5 of the Bill, unless the noble Lord, Lord Mackie, is recommending straight confiscation without appeal from the landowners in question on the value of their deer forests, and I cannot believe that he is advocating that. However, it is the powers within Clause 4 which worry me particularly in that regard.

I was most grateful to hear what my noble friend Lord Lindsay said towards the end of his remarks. When he began his comments he said that it must be absolutely clear that the Clause 4 powers can only he used to prevent serious damage and to protect against serious damage. My point to him on that is that the people who wish to see the natural forest (as they call it) regenerate without deer fencing by drastically reducing the numbers of deer and therefore destroying the value of the deer forests, say that that is taking place at the moment. They say that the deer forests, and possibly the grouse moors, are themselves the victims of serious damage already. It is that situation which these amendments are designed to stand up against. I was therefore encouraged to hear my noble friend say that long-term damage cannot be tackled under Clause 4; that where deer have been behaving in that way for many years, Clause 4 cannot apply. The time when deer suddenly come on to that ground is the time when the provisions of Clause 4 come into action.

I am encouraged to hear my noble friend say that. However, as we read it, that is not on the face of the Bill in front of us today. We have no definition of "maraud" and we have a very wide definition of "woodland" which, as far as I can see, would include large areas of deer forest and grouse moor where small trees, shrubs, rowan and birch two or three inches high are in among the heather. They are grazed principally by sheep, which unfortunately are not the object of this Bill, but also by deer. Within the definition of this Bill, as it stands, that would be woodland. Even if we do not get as far as the difficulties and ambiguity of the meaning of the words "natural heritage", we still have the problem with "woodland".

As I say—I do not want to take more of the Committee's time—the people who wish to have vast reductions in the numbers of deer without deer fencing already say that serious damage is occurring. Therefore, if we can find some way of putting into the Bill what my noble friend the Minister has said as to the fact that the powers of Clause 4 cannot be used against the existing situation and that it would then be for Clause 5 management agreements, negotiation and some form of compensation perhaps for the wretched landowner, who would not therefore have his property confiscated, I feel we would have done something very useful.

4.30 p.m.

Lord Mackie of Benshie

I do not want to take up the time of the Committee, but I must defend myself against the charge that I was advocating wholesale confiscation. I was merely saying it is a very foolish clause to put in the Bill and, as usual, the noble Lord, Lord Pearson, is way ahead. The next thing he will be saying is that I am advocating that the tumbrels should roll in the highlands and that the landlords should be executed! I like the highland landlords a lot and we are looking for a sensible way to enhance the natural heritage in all sorts of ways. Grouse occasionally can be very profitable and can maintain a lot of people. Therefore, I resent or reject the charge that I want wholesale confiscation.

Lord Pearson of Rannoch

I exonerate the noble Lord, Lord Mackie, of any charge I may have misunderstood him to make. I also apologise for the wording of the amendment, which I appreciate is not perfect, but it was simply designed to encourage the debate which we have now had and I look forward to my noble friend the Minister's reply.

The Earl of Lindsay

I am sure I am going over the same ground over and over again, but I will happily do so. The one new point which I have not articulated properly before is that the trees that are there simply because they are there, be they browsed at knee-height or not, will not qualify as woodland unless they are trees that have been deliberately grown; that is, there is an active method and deliberate management of those trees. If one is pursuing a regeneration project, unenclosed within a normal deer range, that cannot be the target of Clause 4 powers. One could not claim that the deer had arrived there unexpectedly. One could not claim that there were no other options available to the commission in pursuit of the prevention of serious damage. After all, the Clause 5 amendments to the Section 7 powers—the control agreements and the control schemes—are designed to deal with the longer-term problems. Clause 4 is designed to deal with the emergencies where there are no other options available and one needs a last resort, an ultimate lifeboat, as it were, to rescue a situation from serious damage.

I hope that the assurances that I have given both specifically as regards this clause, and also in the general conversation that we have had about other parts of Clause 4, will bring some comfort to my noble friend. I refer principally to the continued assurance which I give to the Committee, and will give to the House at later stages, that enhancement cannot be the excuse for either Clause 4 powers or indeed the control schemes under Clause 5.

Lord Pearson of Rannoch

I am enormously grateful for what my noble friend the Minister said, and it does give one much comfort. I am, however, still left with the fervent desire to see what my noble friend has put into the Bill more precisely than it is at the moment and perhaps we can consider that between now and the next stage. For instance, my noble friend said that the deer arrive unexpectedly, that they cause surprise by their arrival. There must be a way in which we could have on the face of the Bill something nearer the assurances which my noble friend the Minister gave than are to be found there at the moment. With that hope, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4, as amended, agreed to.

Lord Carmichael of Kelvingrove moved Amendment No. 37: After Clause 4, insert the following new clause—

EXCLUSION OF DEER FROM THEIR NATURAL HABITAT

(" . Where there is exclusion of deer from their natural habitat due to enclosure of land previously unenclosed, the owner or occupier of that land shall take action to reduce the deer population accordingly.").

The noble Lord said: This is an amendment to add a new clause. The Minister may already have said much that I will be suggesting. The wording comes from the crofters' commission and reads: Where there is exclusion of deer from their natural habitat due to enclosure of land previously unenclosed, the owner or occupier of that land shall take action to reduce the deer population accordingly".

The purpose of the amendment is to tackle the problem of excluding deer from newly-enclosed land rather than simply creating a problem elsewhere and perhaps increasing unnaturally the deer population in another part of the area. In the Highlands and Islands I understand that the natural regeneration of woodlands and other types of forestry is proving increasingly attractive, and under one of those schemes it is necessary to enclose previously unenclosed land to the possible exclusion of deer from land they were already using. When deer are so excluded they will move to other areas with the potential of increasing the local deer population and perhaps damaging beyond repair the old natural territory that the land had adopted over the past half century. Agricultural land and so forth could also be badly affected.

It would, in the opinion of some of those trying to enclose the land, be profitable to cull the deer that fall within a new enclosure of land, thus avoiding the problem of them migrating to other areas and perhaps starving because of over-population in those areas. That seems to me to be a logical way out of what could be a problem if certain types of forestry are to be used for the creation of crofting areas. I hope that the Minister will give consideration to this matter. I beg to move.

The Earl of Mar and Kellie

I support the amendment moved by the noble Lord, Lord Carmichael of Kelvingrove. This is an eminently sensible matter which we should be considering, and in particular it will be an interesting planning consideration. Certainly if land is to be enclosed for forestry that has to go through a planning process. I therefore draw your Lordships' attention to the fact that members of the planning committee should consider the issue of the deer when they consider the issue of the enclosure of land for forestry. For some it will mean the destruction of what they regard as a nuisance and for others it will mean the execution of Bambi.

Lord Pearson of Rannoch

I support the amendment, or at least the spirit of it. The noble Lord, Lord Carmichael, may be aware that the most likely way in which his amendment would apply at the moment is with the new native pinewood schemes, which are proving quite a success. A number of landowners are using them to regenerate the ancient Caledonian Forest within fenced areas. They can be quite large. In fact, if one does not do a native pinewood scheme of upwards of 300 acres it probably is not beneficial to the estate in financial terms. One is beginning to see several schemes of 500 acres and more. Certainly, the deer have to be fenced out completely and so, too, sheep. Hares can still be a problem, but that is perhaps another matter.

I think the noble Lord will find that when permission is given for these schemes by the Forestry Commission it leans very heavily on the advice of Scottish Natural Heritage which would be unlikely to give consent unless suitable culling was to take place. I do not know whether the amendment is ideal in putting the onus on to the owner but if possible that should certainly happen. No schemes should be allowed in areas which are heavily used by deer without reducing the numbers of deer which are thus squeezed out to do damage elsewhere.

Lord Mackie of Benshie

I am very glad to hear the noble Lord supporting the amendment. If a great area of land is closed off and the deer move, the crofters find that the grazing for their sheep is reduced. I know that some people do not like sheep, but to the crofter they are very important. Therefore, it is a sensible amendment. I hope that the Minister has an answer in the Bill already and that he will take a sympathetic view. Sheep are a source of income for people in the Highlands. If you take away the grazing, you give those people less income.

The Earl of Lindsay

I can assure the noble Lord, Lord Mackie, that I am sympathetic to all amendments and especially this one. The noble Lord, Lord Carmichael, explained clearly the intention and the objective of the amendment. As we understand it, it would ensure that where deer are excluded from a piece of land—possibly hill land, possibly not—and their winter range is correspondingly reduced, action is taken to reduce the numbers to match the available habitat. Such exclusions could be the result of woodland grant schemes or, more rarely, of agricultural improvement.

In all these cases, whether through the Forestry Commission, SNH, or for some other reason, the Red Deer Commission advises the appropriate authority on the steps that should be taken by the land manager and that advice is passed to the land manager. I understand that, in general, the advice is followed. However, I understand that there could be circumstances where the advice is not followed and where public funding has been used to support an investment in forestry or in a natural heritage project. The consequences for the deer because of the advice not being followed may therefore be regrettable. One thinks immediately of welfare.

I want to consider the amendment as the noble Lord has drafted it. We want to think very carefully about the fact that we could already have around 600,000 deer in Scotland and that figure is rising. They range from roe deer in the southern and eastern half of Scotland to the sika and red deer. We have a huge amount of forestry. There are quite a few marginal adjustments to the deer range, be it roe or red. Therefore, we shall want to look at the amendment with great care.

Parts of that consideration will be looking at what powers are already available to the commission which might, with some adjustment, be suitable to achieve exactly what the amendment seeks to achieve. I acknowledge the point raised by the noble Lord and we shall look very carefully at it.

Lord Pearson of Rannoch

Before the noble Earl sits down, one message he might care to look at is that most of these schemes attract grant which is not paid all in one lump. It might be possible to tie, perhaps not the first payment of the grant, but subsequent payments of grant, to the completion of the reduction in deer which would have been stipulated at the start of the scheme. I am of course talking more about the Highland range and red deer and not, as my noble friend the Minister mentioned, roe deer. This is a thoroughly sensible amendment in spirit.

Lord Carmichael of Kelvingrove

I am most grateful. I have very little experience in getting grants. I have not been able to find a way of getting a grant on anything‡ I am grateful for the support I have already received and also for the sympathetic reply of the Minister. We shall obviously look at it carefully and come back on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Control agreements and control schemes]:

4.45 p.m.

The Earl of Lindsay moved Amendments Nos. 38 and 39: Page 4, line 8, leave out ("farm animals") and insert ("livestock"). Page 4, line 10, leave out ("those animals") and insert ("any such livestock").

The noble Earl said: I spoke to Amendments Nos. 38 and 39 when moving Amendment No. 21. I beg to move.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendment No. 40: Page 4, line 17, leave out ("or exterminated").

The noble Earl said: In moving this amendment I shall speak also to Amendments Nos. 41, 42 and 46. I have brought them forward in response to suggestions made at Second Reading and during the evidence taken at sessions in Edinburgh. Amendment No. 4 removes the words "or exterminated" from Section 7 of the 1959 Act, which stipulates the measures the commission can promote to control deer in particular areas. I know that was a concern of the noble Lady, Lady Saltoun. It is accepted that the term "extermination" is archaic and has unfortunate connotations in implying large scale killing of deer.

It is, however, necessary to include the option of total exclusion of deer from a particular area, which may not be allowed if we merely remove the words "or exterminated" without allowing specifically for exclusion. Exclusion may be effected by shooting but it could also be effected by driving deer out of the area or by live capture. I beg to move.

Lord Pearson of Rannoch

I welcome the Government's agreement to remove the expressions "exterminate" and "extermination" from the face of the Bill. I believe that we are also debating Amendment No. 42, in which case I would have to ask my noble friend whether he has any idea of the size of area that could have all its deer excluded. I fear that the noble Lord, Lord Mackie of Benshie, will accuse me again of taking a flight of fancy, but there are those engaged in the Scottish uplands debate who believe that all the deer east of the A.9 should be removed. That is about the largest area over which I have heard that they should be exterminated.

I am not sure whether there is any indication given in the Bill, or whether my noble friend can give us any assurance, that one is talking about pinpointing problem areas such as new plantations. Once again, I am only dealing with the words on the face of the Bill and on the face of the amendment. At the moment it seems that they could apply to an area east of the A.9, but I am sure that they are not meant to do so.

The Earl of Lindsay

I do not think I can possibly predict the sorts of circumstances that might trigger this consideration by the commission. I have already said what a diverse place Scotland is. We must remember that we are talking about red deer, roe, fallow and sika. One hopes that we will not have too many muntjac in Scotland, but from the way they are invading the southern part of the UK their numbers may well be on the way up as well.

There could be circumstances in the context of control agreements and control schemes where there is a need to try to exclude deer from a small area or less than a small area. The ability with which one could hope to exclude deer, say, east of the A.9 or remove all sika from Scotland is such as to be improbable; it is unlikely that one could ever achieve such an objective, so there will be obvious limitations on the extent to which the commission can suggest total exclusion, given that it is too large an area. It would pose an impossible problem to achieve that. But the discretion of the commission would be driven by the circumstances in which this is applied.

Lord Pearson of Rannoch

I am grateful to my noble friend for that explanation. I agree that it might be difficult, indeed impossible, to exclude all deer, say, east of the A.9. I agree that that is an almost absurd project. Nevertheless, I think that we should apply our minds to clarifying the areas in question a little more precisely. I am quite happy to leave it now, but it seems to me that very large areas could be concerned. A whole deer management group in the area between the A.82 and Loch Laggan and Loch Ericht could be chosen, and it would be perfectly possible to exterminate all the deer in that area, given the powers that exist in the Bill.

The Earl of Lindsay

May I point out to my noble friend that this is within the context of Clause 5: we are dealing with control agreements and control schemes. Control agreements are driven by voluntary participation. Although a control scheme has never been used or put in place since 1959, in the event that one might be there are significant safeguards for owners and occupiers. Indeed, a public inquiry can be insisted upon if an owner is unhappy with the terms of the control scheme. To hope to prescribe the sort of area over which exclusion might be sought is difficult but there are very good safeguards for owners and occupiers throughout.

Lord Pearson of Rannoch

That does give some comfort. I will now read carefully in Hansard what my noble friend said and do not propose to pursue the matter further at the moment.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 41 and 42: Page 4, line 20, leave out from ("number") to ("; and,") in line 21. Page 4, line 22, at end insert— ("(1A) Where it appears to the Commission that the circumstances obtaining in a particular area require the complete exclusion of all deer, or of all deer of any species, from that area, they may form the view that any deer within that area should be taken, removed or killed.").

The noble Earl said: With the leave of the Committee I shall move Amendments Nos. 41 and 42 en bloc. I beg to move.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendments Nos. 43, 44 and 45: Page 5, line 24, leave out ("farm animals") and insert ("livestock"). Page 5, line 16, leave out ("that"). Page 4, line 45, leave out ("animals") and insert ("deer").

The noble Earl said: I spoke to Amendments Nos. 43 to 45 when speaking to Amendment No. 21. They are clarifying amendments and part of the consolidation process. I beg to move.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendment No. 46: Page 5, line 31, leave out from ("the") to ("above") in line 32 and insert ("purposes of subsection (1) or (1A)").

The noble Lord said: I spoke to Amendment No. 46 when moving Amendment No. 40. I beg to move.

On Question, amendment agreed to.

[Amendment No. 47 not moved.]

Clause 5, as amended, agreed to.

The Earl of Lindsay moved Amendment No. 48: After Clause 5, insert the following new clause—

DEER KILLED UNDER AUTHORITY OF COMMISSION

(". For section 13 of the principal Act (power of Commission to dispose of carcases) there shall be substituted the following section—

"Deer killed under authority of Commission.

13. Without prejudice to sections 6, 10, 11 and 12 of this Act, the Commission shall have no power to dispose of the carcases of deer killed under their authority.".").

The noble Earl said: I spoke to Amendment No. 48 when moving Amendment No. 35 on the disposal of carcasses. I beg to move.

On Question, amendment agreed to.

Clause 6 [Close seasons]:

The Earl of Lindsay moved Amendment No. 49: Page 5, line 42, leave out from ("State") to end of line 46 and insert ("—

1. (a) shall, in relation to the female of every species of deer; and
2. (b) may, in relation to the male of any species of deer,

by order fix a period in each year during which no person shall take or wilfully kill or injure any deer of the sex and species named in the order; and different periods may be so fixed in relation to different species and in relation to the male and female of any species.").

The noble Earl said: My Lords, Amendment No. 49 is designed to make the setting of close seasons for adult female deer compulsory, but to leave the question of whether close seasons are set for adult male deer a matter for the Secretary of State's discretion, subject to the negative resolution procedure. I hope the amendment meets some of the concerns expressed specifically during the evidence-taking session in Edinburgh.

The wording of the clause in the introduction print of the Bill (which is designed to extend the existing system of setting close seasons by order for all species except red deer, to include red deer as well) followed the empowering provision in Section 21(2) of the 1959 Act.

Much of this amendment is driven by welfare considerations. It is important to have close seasons for adult female deer in any event and it is especially important when they have dependent calves which either may not be seen or may not be visible to the stalker should stalking be allowed during that part of their lifecycle. I have therefore concluded that it would be sensible to ensure that there are always close seasons in place for female deer.

As far as male deer are concerned, we have no intention at present of changing the existing system of setting close seasons for .all species of deer. For the present we envisage that any problems relating to overpopulation can be handled through the new control agreement powers in Clause 5 which can allow exemptions from the close seasons for specific purposes in specific areas of Scotland.

Amendment No. 83 is designed to take account of hybrids, especially for the purposes of close seasons. The term "species" will include any hybrid of different species of deer. I beg to move.

Lord Pearson of Rannoch

May I just say how grateful I am, as I am sure are the other members of the Committee, to my noble friend for accepting so much of the thrust of what was said in Edinburgh in this regard. This will give comfort to a lot of people on all sides of the deer debate. Would it be appropriate if I were also to remind my noble friend of the suggestion made in the committee in Edinburgh, I believe by the noble Lord, Lord Ewing, that perhaps it might be simpler if the deer commission fixed the new seasons, as he put it, "subject to an appeal to the Secretary of State"? I seem to remember that the deer commission itself would not have any difficulty with that, and it might obviate the need for orders and further parliamentary consideration and matters of that kind. I certainly welcome the amendment and merely leave the thought with my noble friend, that perhaps he may wish to come back to it before the next stage.

The Earl of Lindsay

The one distinct factor on which I would respond to my noble friend is that close seasons affect the criminal law across Scotland, and therefore consideration perhaps beyond the deer commission itself would be vital. But the more obvious factor is that the Red Deer Commission is the statutory adviser to the Secretary of State on deer matters, and it is inconceivable that the Secretary of State would seek to set a close season against the advice of the same deer commission.

Lady Saltoun of Abernethy

What I think the noble Lord, Lord Ewing, had in mind was that if the deer commission decided on close seasons then there would not have to be a parliamentary order and it would save parliamentary time.

The Earl of Lindsay

I am advised that it is the implications for the criminal law that necessitate the parliamentary procedure here.

On Question, amendment agreed to.

5 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 50: After Clause 6, insert the following new clause—

EXEMPTION FOR CERTAIN ACTS

(".—(1) Section 33(3) of the principal Act shall be amended as follows—

1. (a) after "grounds", the first time it appears, "or" shall be omitted;
2. (b) after "permanent grass" there shall be inserted "or common grazing"; and
3. (c) after "unenclosed land" there shall be inserted "outwith of crofting tenure)".".)

The noble Lord said: This amendment really must be taken in conjunction with Amendments Nos. 81 and 82 which I will move when the time comes. This amendment provides the opportunity for the occupier to take action against marauding deer on common grazing, but the Act apparently allows an occupier to take action against marauding deer on enclosed land. This is insufficient in the crofting counties, as deer can simply jump the fence on to the common grazing to avoid action. Thus it is very difficult for the crofter to take effective action to protect his or her land, and given the small-scale nature of crofting damaged by marauding deer, it would have a very dramatic and impoverishing effect.

However the individual crofting tenant has no remit to take independent action on the common grazing. It is the grazing committee of the council that is responsible for the management of the common grazing. This amendment expands the type of land over which crofters or grazing committees can take action to control marauding deer, and thus protect their inbye land more effectively. Yet it does not allow crofting tenants or grazing committees to take any action over land that is not under the crofting tenure, thus protecting the open expanses of deer forests in the Highlands and Islands. Furthermore, by allowing pre-emptive action in the common grazing it will be possible to overcome many of the difficulties surrounding public safety. In crofting townships, the scale of agricultural operations is small and concentrated around the townships. Thus it is clear that a danger to public safety can arise on such enclosed land, particularly if the shooting is done at night. By allowing pre-emptive action by grazing committees in the common grazing, which is normally distant from the township, the dangers to public safety are much diminished or actually removed. Thus it is felt that if such a provision is put in place on common grazing, it would largely eliminate the need for the introduction of Clause 7 with respect to the crofting counties requiring authorisation for night shooting. To avoid needing to take action to control marauding deer on the common grazing, it is essential to expand the definition of "occupier" to include the grazing committee or a grazing constable. I hope that the Minister will be able to give sympathetic consideration to this proposal and if necessary come back with wording that is more suitable. I beg to move.

The Earl of Lindsay

I am grateful to the noble Lord, Lord Carmichael, for explaining Amendments Nos. 81 and 82. Indeed the issues he raises are issues which we have thought very carefully about, as did the Red Deer Commission, in the consultation process prior to the Bill. We hope that in the balance we sought behind the Bill we took due account of these considerations. I understand that the amendments would introduce the concept of common grazing as a type of agriculture on which occupiers, or others, will be able to shoot out of season to prevent serious damage to crops, pasture or foodstuffs without the need for commission authorisation.

Perhaps it is appropriate for me to take this opportunity to explain what the Bill presently proposes. Our governing principle is that occupiers of agricultural land must be able to take steps to protect their agricultural investment. To that end, the Bill proposes that the set of descriptions of the type of land over which occupiers or others can take or kill out of season—that is deer—without requiring authorisation from the commission be amended. At present the expression: Land laid down in permanent grass (other than moorland or unenclosed land) allows farmers and crofters to take action on the inbye land of their farms or crofts. Our proposed revision extends this right to allow farmers and crofters to take action to protect any land in which they have made a significant investment towards the productivity of the holding. I am content that the Bill as drafted allows sufficient protection for the investment of farmers and crofters to be safeguarded where serious damage is occurring and that as a consequence this group of amendments is not appropriate.

In addition, if the land over which, for instance, a crofting community are concerned about deer damage occurring falls outside the new definition which we are proposing, I would remind the noble Lord that the Section 7 powers, as being amended by our Clause 5, could well be a useful avenue to managing those deer numbers. In addition, if there is a deer management group locally, it is another source of a possible solution to an over-population of deer in a particular locality. I hope that that will reassure the noble Lord.

Lord Mackie of Benshie

Can the Minister define more precisely the position of improved land? For example, if some common grazing improved the land through a natural process of cattle and other methods about which the Minister knows, and the deer come into the proper inbye land, can "hot pursuit" continue on to the common grazing to ensure that the deer are killed? If deer have been marauding in the inbye land in the permanent grass, eating the turnips—as I said before—and from there proceed on to the common grazing, which may be unimproved, can the deer be killed there?

The Earl of Lindsay

If I may start at the beginning, the definition of "improved land" requires a significant investment to have been made. A significant application of lime and fertiliser or significant efforts to regenerate through re-seeding would qualify that land as improved land. The ability to use the marauding deer power if they are on the inbye land—we are now back to the common grazing—would be subject to the entire framework of Clause 4. So there would be safeguards afforded to those who have a right to kill where the deer have come from. The person with a right to kill on the common grazing would be the first person to be asked by the commission to take action against deer that were marauding. I reiterate the formula, which must be becoming well known to noble Lords, that the marauding powers still would be unavailable if the damage was less than serious and if there were other options available for managing the deer. In most cases there are other options available for managing such deer. I hope that I have answered the points raised.

Lord Carmichael of Kelvingrove

I am grateful to the Minister again for his long explanation. He will appreciate that it was largely an interpretation. It is not the interpretation I received from some people who wrote to me less than two weeks ago. Although the Minister's interpretation is probably correct, I shall perhaps come back to the issue on Report when I have more information. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [Authorisation by Commission of certain acts.]:

The Earl of Lindsay moved Amendment No. 51: Page 6, line 32, at beginning insert ("Notwithstanding anything in any agreement between an occupier of agricultural land or of woodland and the owner thereof, but").

The noble Earl said: In moving Amendment No. 51, I shall speak also to Amendments Nos. 53, 59 and 66. The amendments all arise from the consolidation process and are necessary to clarify that action authorised by the commission should take precedence over any agreement between the owner and an occupier of land. It was the clear intention of the 1959 Act that action declared lawful by Section 33(3) and (4) should take precedence. By analogy the same principle should apply to action authorised by the commission.

Such action can only be taken in the case of serious damage and that does not constitute a legal right to take deer in all circumstances. It has been a working assumption of those in the field that the commission's existing authorisation powers take precedence over private agreements. The commission will still be subject to the balancing duty to take account as relevant of owners' interests in exercising its authorisation functions and should not exercise those powers in an unreasonable manner. I beg to move.

On Question, amendment agreed to.

[Amendment No. 52 not moved.]

The Deputy Chairman of Committees (Lord Strabolgi)

I have to inform the Committee that if Amendment No. 53 is agreed to, I cannot call Amendment No. 54.

The Earl of Lindsay moved Amendment No. 53: Page 6, line 33, leave out from ("authorise") to second ("or") in line 34 and insert ("such an occupier").

The noble Earl said: I spoke to Amendment No. 53 when moving Amendment No. 51. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 54 to 56 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 57: Page 6, line 37, at end insert— ("( ) there is a danger to public safety; or").

The noble Lord said: This is a probing amendment to ascertain the Minister's views on what constitutes "serious damage".

Clause 7 refers to the circumstances under which the commission can authorise the shooting or the taking of deer outwith the limits normally prescribed by legislation. In that regard, the purpose of crofting in the context of deer control in areas such as the Western Isles should not be forgotten. Although the problem of deer in such areas is often localised, where it does occur there can be considerable damage to a croft and gardens. That should be borne in mind when the definition of "serious damage" is being considered in relation to marauding deer and the authorising of the necessary action by the commission.

The scale of damage to crofts in such cases may not necessarily indicate the severe implications to such a fragile economy. What might be small-scale damage in an agricultural sense may be serious in a crofting sense where units are very much smaller. The Minister may help me and perhaps the Committee if he will go into some detail and explain what constitutes "serious damage". I beg to move.

The Earl of Lindsay

I am grateful to the noble Lord, Lord Carmichael, for explaining Amendments Nos. 57 and 58. My understanding of Amendment No. 57 is that it seeks to introduce a danger to public safety as an additional reason for authorising night shooting as a last measure. The problem that we have with that is the danger to public safety that night shooting presents anyway and therefore it is something about which we are not enthusiastic. We fear that in trying to sort out one public safety problem, we are simply creating a second public safety problem.

In response to the noble Lord's Amendment No. 57, we have thought long and hard about the circumstances where this might be needed and we are not convinced that there is a sufficient case for what would be a power that in itself would be something of a danger.

I completely agree with the assertions made in support of Amendment No. 58 in that the word "serious" is not something which can be applied glibly across different circumstances. The noble Lord described how the damage caused by deer could have a larger impact on a small area of inbye land compared to the same number of deer on a large agricultural unit in a different part of Scotland.

We deliberately are not seeking to prescribe too closely how serious damage is defined in such circumstances precisely because of the need to take into account the details of any particular case. We should be relying on the commission to judge the seriousness of damage in any particular event.

Lord Carmichael of Kelvingrove

I thank the Minister for his reply. I can understand the problem of making decisions on what is serious, but it cannot be very reassuring to crofters to know that the commission may make a decision. Will there be any right of appeal if the crofter feels that he has been badly dealt with? It is a matter of opinion and it is always difficult to put opinion into an Act of Parliament with people perhaps trying to guess. The commissioner may have spent the whole week looking at serious damage in other areas and he then comes to see a small garden or a small croft that may have been very badly damaged, but relative to what he has seen, the damage is very little. It is always difficult to put on the face of a Bill an open word like "serious", and I wonder whether there is any way out of it. Perhaps the Minister would like to think about it and return to the matter.

5.15 p.m.

The Earl of Lindsay

I have thought about it. I think that in the case where the commission can be shown to have come to a decision unreasonably, it will be subject to judicial review and that, of course, can be activated very quickly.

I point out to the noble Lord, Lord Carmichael, that the commission, through its composition, arrives at more than just an opinion. We always hope that it will arrive at a considered and respectable opinion. Indeed, the last 39 years of the deer commission's opinions have gone down very well, broadly speaking, in Scotland and it is remarkable what it has managed to achieve through its liaison with local interest, local initiatives and local deer management groups in the decision making process. Anyone who disagrees with an opinion of the deer commission is able to continue a dialogue with that commission explaining why he disagrees. The whole culture of the deer commission has been one of openness and dialogue and getting on with people at ground level.

Also, recently we have been instituting deer liaison officers so that there is access to the deer commission process beyond simply the headquarters. We would always hope that people with a deer problem, who are not initially satisfied with the deer commission's opinion, would feel able to continue discussions up to the point where they feel they should ask for a judicial review.

Lord Mackie of Benshie

The task is perfectly simple in that there are agricultural valuators who know the form. If they were called in and said the damage was serious, the commission would then listen.

The Earl of Lindsay

The valuators of Scotland will be delighted to hear that suggestion, and to know that there is yet more business coming their way. The track record to date is encouraging. We would expect the common sense and the credibility that has built up now to be a continuing hallmark of their action. It is rare that the deer commission has been accused of being unsympathetic to particular circumstances. It has also deployed its considerable influence in being able to promote both more formal and less formal solutions. We look forward to that continuing.

Lord Pearson of Rannoch

I have been growing increasingly uneasy during this debate, because it refers back to earlier points which I made about the difficulty of deciding, first, what damage is, and, secondly, what serious damage is. The difference between serious damage and damage must be in the eye of the beholder. I am not a lawyer and I am not sure that reference to judicial review would help the matter. The person undertaking the judicial review might find himself in the same difficulty. I do not know whether it is a concept which the noble Earl the Minister might like to think of over the next few days before we come to Report stage.

I am reminded of the difficulty we had over the Natural Heritage (Scotland) Bill when what had been the Nature Conservancy for Scotland had been deciding that an area of Scotland should be a site of special scientific interest on scientific grounds; and that was that—it became a site of special scientific interest, often to the detriment of the owner or the occupier of the land in question. It seems to me that we could be moving into similar waters with this Bill when we consider the difficulties of Clause 4 and the definition of natural heritage, to which we shall return.

I wonder whether we might consider some very simple and cheap mechanism, as was eventually agreed for Scottish Natural Heritage and which has proved such a success in that a small scientific advisory committee was set up under Scottish Natural Heritage which took a second guess as to whether a particular site was worthy of special interest protection or not. If there is disagreement between the occupier or the owner, from which ever direction they come, as to whether the damage is serious of not I wonder whether there should not be some second guessing mechanism which might make everyone behave more sensibly.

When we introduced the amendments to the Natural Heritage (Scotland) Bill we were accused of being wicked landlords and attempting to foul up the functions of SNH in future. But in fact I gather there have only been two appeals to the advisory committee in the past five years, both of which have been adjudicated in favour of SNH. I am beginning to think that our difficulty is with Clause 4 and that the definitions with which we are struggling may be such that some very small form of second-guessing mechanism might be to the advantage of all sides.

The Earl of Lindsay

The definitions were not creating too many problems for the Committee, but my noble friend and I hope to meet to discuss some of the finer details in Clause 4. The extraordinary diversity of habitat throughout Scotland and the extraordinary diversity of deer throughout Scotland, mean that any statutory definition of the word "serious" would serve no-one. I have roe deer at home and not red deer, but I would be very worried if I thought that there was some glib formula set down on this matter.

The interpretation of the word "serious" in specific circumstances merely being in the eye of the beholder I regard as being as inaccurate as the noble Lord, Lord Carmichael, suggesting that it would be merely an opinion of the commission. The eye of the beholder in this case would be between nine and 12 commissioners appointed because of their knowledge and expertise in certain disciplines which are relevant to deer management, and there will be a balance of interests among those deer commissioners. The deer commission itself will also be seeking advice from the professionals whom they regard as being appropriate to a decision they have to make. It could be SNH; it could be my own agricultural department; it could be the Forestry Commission. Therefore they will have access to advice.

If the word "serious" is seen by an owner or occupier to have been misinterpreted under, for instance, a Clause 5 control scheme, he simply has to object. There has never been a control scheme in 36 years, but if there were to be one to which someone objected the Secretary of State would have to hold a public inquiry to clarify the nature of the objection. In Clause 4, once again, the safeguards which surround that process—the fact that it must be an emergency and there must be circumstances in which there are no other options, procedures or paths available to the commission to prevent serious damage—build in constraints preventing that party's interests from being abused.

I will gladly talk to my noble friend about the word "serious", but I would encourage him to read in Hansard what I have just said as to why we feel it is such a safe use of the word.

Lord Carmichael of Kelvingrove

It has been a worthwhile debate, as indicated by the fact that the Minister had to speak so long in giving justification for the wording. I was slightly surprised, and perhaps not a little horrified, that he said we can always go to court. I would not advise any crofter to take anybody to court; it could do terrible damage before he could repay his court fees and seriously affect his circumstances.

I am grateful to the noble Lord who referred to the natural heritage Bill, and perhaps the Minister will have a look at all this and realise that this is a subject that could arise quite soon, or it may be a long time off. While I have every confidence in the commission, we may not get another Act for another 20 or 30 years and this could be a lot of water under the bridge. So I hope the Minister will look at it and perhaps tell us whether there is another way or a reference in another Act that will allow us to solve this problem. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 58 not moved.]

The Earl of Lindsay moved Amendment No. 59: Page 6, line 44, at beginning insert ("Notwithstanding anything in any agreement between an occupier of land and the owner thereof, but").

The noble Earl said: I spoke to this amendment when moving Amendment No. 51. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 60 to 63 not moved.]

Lord Pearson of Rannoch moved Amendment No. 64: Page 6, line 47, after second ("to") insert ("move, or").

The noble Lord said: This is a very simple little amendment, which is proposed at the bottom of page 6 of the Bill, subsection (3) of the proposed new Section 33A, where authorisation has been given to an occupier, or possibly also to an occupier, the owner or his agents, where deer are to be driven by vehicles in order to take or kill them for the purposes of deer management. It is made absolutely clear that the purposes of deer management are in no way sporting, so once again we are dealing with probable destruction. The purpose of the amendment is simply to suggest that it might be helpful to have in there the word "move", so that one could use any vehicle to drive deer in order to move, take or kill them for the purposes of deer management, rather than simply to leave the undertaker the option only of taking or killing them. The amendment has in mind the situation where possibly an area of ground has been fenced for regeneration, for a native pinewood scheme or something of that kind. When the deer thus driven out have also been removed from the area locally and more deer break in, it would seem sensible to have the option of moving them out, rather than to be stuck with the necessity of having to take or kill them. I beg to move.

Lord Mackie of Benshie

I would simply say I cannot find anything sinister in this amendment, try as I do.

The Earl of Lindsay

I congratulate the noble Lord, Lord Mackie, whose eagle eye usually spots anything sinister, if it is there. I am grateful to my noble friend Lord Pearson of Rannoch for moving three amendments—Amendments Nos. 64, 65 and 84; or is he just seeking to speak to Amendment No. 64?

Lord Pearson of Rannoch

I am not going to move Amendment No. 65. I am only moving Amendment No. 64, unless we have a different grouping list.

The Earl of Lindsay

My noble friend dealt with Amendment No. 84 on Monday and we were unclear as to why Amendment No. 65 was there. Perhaps I may speak to Amendment No. 64. It is very important to keep in mind, when considering the question of deer and vehicles, that deer at present can be moved using vehicles. It is quite legal. I hope that answers one of the principal points raised by my noble friend. If you are not moving deer in order to cull them, then it is legal to use vehicles to move those deer. Therefore such lawful movement would not need authorisation.

It is only an offence, as I said, to use vehicles to move deer if the operation is carried out on unenclosed land with the intention to take, kill or injure them.

It is our intention to allow the use of vehicles for essential management reasons, but it would require authorisation by the commission and, in addition, any such operation will be subject to the code of practice which the commission is preparing in consultation with deer management and welfare interests.

My noble friend made a very good point, and we thoroughly agree with him, that the main aim of driving deer could well be simply to move them from one part of their range—it may well be a newly—established part of their range which is particularly vulnerable-onto a more normal part of their range. That could be done legally at present on unenclosed land if the objective is only to move them. With specific authorisation, it will then be possible to pursue management practices such as culling.

My noble friend used the word "destruction", i.e. moving them simply to destroy them. The fact is that management may involve some management of their numbers, but one may be talking about a normal culling percentage which can be between 10 and 12 per cent. or 15 per cent. Therefore I suggest that words like "destruction", when one is talking about that kind of standard deer management, is somewhat misleading.

I hope that I have reassured my noble friend by saying that moving deer for no other purpose than moving deer is already legal.

5.30 p.m.

Lord Pearson of Rannoch

I am reassured on that and I am grateful for my noble friend's explanation on Amendment No. 64. Since, however, he went on to say that my use of the expression "destruction" was excessive, I may wish to move Amendment No. 65.

The Deputy Chairman of Committees (Lord Strabolgi)

Does the noble Lord wish to withdraw Amendment No. 64 first?

Lord Pearson of Rannoch

Yes, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Pearson of Rannoch moved Amendment No. 65: Page 6, line 48, leave out from ("management") to end of line 2 on page 7.

The noble Lord said: I have suggested that the words for the purposes of this section 'deer management' does not include driving deer in the course of any sporting activity should be removed from the Bill for the very reason that they indicate the destruction to which I have just referred. In the course of any normal sporting activity, the kinds of level of cull to which my noble friend has referred, 10 or 12 per cent. or even higher, are normal. Therefore, I tabled this amendment precisely so that my noble friend the Minister could say what the purposes of this section were if they were not sporting activity. I had assumed that they were the substantial reduction of deer numbers. In those circumstances, the word "destruction" is not necessarily too emotive a word. I would be very interested to hear what my noble friend has to say.

The Earl of Lindsay

As my noble friend well knows, deer numbers in Scotland are 600,000 or so, rising fast, and the deer range is reducing. Deer management is needed, and it may be that where emergency circumstances justify it, moving deer with the use of vehicles for management purposes could be justified. It would be subject to the various codes of practice.

The effect of Amendment No. 65 would be to allow the movement of deer with the use of vehicles simply for sporting purposes. The Government do not believe that vehicles should be used to move deer for sporting purposes. That would be the effect of Amendment No. 65 and that is why we oppose it.

Viscount Astor

I wish to ask my noble friend the Minister a question. I realise that we have had a debate on the fact that "vehicle" includes helicopters and hovercraft, but my experience is that the one thing you cannot use to move deer in is a vehicle—they take absolutely no notice at all. Is it not more valid to say that we are talking about moving them by some form of aerial means< My noble friend refers to "vehicle" but I have yet to see a vehicle which can successfully move deer. We must not become distracted by this, otherwise it may become misleading. Can my noble friend confirm that he is talking about using things which fly around in the air?

The Earl of Lindsay

I am talking about vehicles as defined in the Deer Act 1991, as has been understood in much other legislation. In many circumstances, it can be sensible to move deer by using vehicles. Noble Lords should not simply think about the red deer range—about large hostile terrains—as one might be thinking about other types of deer in other parts of Scotland where helicopters and other airborne vehicles are totally inappropriate. The point made by my noble friend does not therefore stand up. I am literally talking about all parts of a normal definition.

I hope my noble friend Lord pearson of Rannoch accepts that we do not want to see deer moved by vehicles for sporting purposes, response to Amendment No. 65.

Lord Pearson of Rannoch

I am grateful to my noble friend. I am aware that some of our far eastern land owners in Scotland do use helicopters at present for driving deer for what they describe as sporting purposes. I am told it is very efficient and beastly.

I would take issue with what my noble friend said about deer numbers rising fast in Scotland. That may be true of roe deer—I am not an expert on roe deer—but my understanding is that the recent collaboration between the Association of Deer Management Groups and the Red Deer Commission has stabilised the deer population in recent years. There is every sign that the red deer population is declining. If I have misunderstood that, I apologise, but that is what I have been told by the Red Deer Commission.

I do not well know, as my noble friend suggests, that this is a problem which requires the deer to be treated in a way which, as far as I can see according to this clause, can only be described as destructive. I am sure we have had sufficient discussion on it and, if it is my amendment, I beg leave to withdraw it.

Amendment, by leave, withdrawn:

The Earl of Lindsay moved Amendment No. 66: Page 7, line 7, after ("Act") insert (", notwithstanding anything in any agreement between an occupier of land and the owner thereof").

The noble Earl said: I spoke to this amendment when moving Amendment No. 51. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 67, to 69 not moved.]

Lord Pearson of Rannoch moved Amendment No. 70: Page 7, line 17, after ("woodland") insert ("or agricultural land").

The noble Lord said: This, I hope, is another fairly simple amendment in that, on page 7 of the Bill in Clause 7, the words "agricultural land" are not included. The paragraph reads: to prevent serious damage to any unenclosed woodland which forms part of that land, or serious damage, whether direct or indirect, to the natural heritage generally".

I wondered why "agricultural land" was not included within that particular clause. I beg to move.

The Earl of Lindsay

I hope that I can help my noble friend Lord Pearson with Amendment No. 70. I made clear when I spoke to Amendment No. 50 that Section 33(3) of the 1959 Act already sets out the types of agricultural land where out-of-season action can be taken without the need for authorisation from the commission. I would therefore hope that Amendment No. 70 is not necessary.

Lord Pearson of Rannoch

I thank my noble friend and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos 71 and 72 not moved.]

The Deputy Chairman of Committees

If Amendment No.73 is agreed to, I cannot call Amendment No. 73 is agreed to, I cannot call Amendment No.74.

The Earl of Lindsay moved Amendment No. 73: Page 7, line 31, leave out ("occupier or person nominated by him") and insert ("person concerned").

The noble Earl said: This amendment clarifies other amendments which are required for consolidation purposes. The present version of proposed new Section 33A, subsection (7) does not, as drafted, take account of the fact that the commission may authorise a person to take or kill deer out of season for scientific purposes. This minor amendment is by way of correction. I beg to move.

On Question, amendment agreed to.

[Amendment No. 74 not moved.]

Clause 7, as amended, agreed to.

Lord Pearson of Rannoch moved Amendment No. 75: After Clause 7, insert the following new clause—

CARCASS TAGGING

(" . After section 25F of the principal Act, there shall he inserted the following section—

"Carcass tagging.

25G.— (l) For the purpose of monitoring the quality and source of venison sold in Scotland the Secretary of State may by regulation introduce a scheme to make provision for the identification of all deer carcasses sold within Scotland ("the scheme").

(2) The scheme shall require any venison sold to bear a tag in a form approved and issued by the Commission and bearing an individual mark or number for each carcass, identifying the producer, the year of issue and the carcass number.

(3) It shall be a requirement of the scheme that any person requiring to sell a venison carcass shall obtain in advance from the Commission the relevant tags and shall affix them to any carcass sold in such manner as may be specified.

(4) At the expiry of the year to which any unused tag relates, the producer or dealer to whom it was issued shall return the same to the Commission.

(5) It shall be an offence for any person to sell, offer or expose for sale or to receive or to have in his possession, transport or cause to be transported for the purpose of sale on any premises any venison not bearing a tag in such form as may be specified by the scheme.

(6) A person who is guilty of an offence under subsection (5) above shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale." ").

The noble Lord said: This amendment proposes to introduce a compulsory system of carcass tagging into the sale of venison. I should apologise to the Committee that in subsection (1) of the amendment the Marshalled List reads, For the purpose of nominating the quality and source of venison sold in Scotland".

The amendment should read, For the purpose of monitoring the quality and source of venison sold in Scotland".

I apologise to the Committee for the mistake which was only picked up this morning. I acknowledge that the suggestion in the amendment emerged relatively recently. It arises from the Red Deer Commission's working group on carcass tagging which was set up in 1995 and which reported to the commission in December last year. It is unfortunate, therefore, that at this late juncture there has not been much opportunity for consultation with all interested parties or indeed for a cost compliance assessment.

Nevertheless, the proposed introduction of a compulsory carcass tagging system has the support of the Red Deer Commission, the Scottish Landowners' Federation and Scottish Enterprise. I am not aware of opposition from any interested parties and the response from the principal game dealers in particular has been favourable. Furthermore, the proposal for compulsory tagging received overwhelming support from the members of the Association of Deer Management Groups at its annual general meeting on 22 February.

Carcass tagging is also an integral part of the recommendations contained in the venison marketing feasibility study undertaken on behalf of the association by SAOS Limited in 1995. The recommendations include the establishment of a Scotland-wide venison marketing group, and the Association of Deer Management Groups has the backing of its member groups to pursue this.

I wish to outline the case for carcass tagging in more detail. A stable venison market is of great importance in underpinning the employment of professional stalkers and maintaining an adequate level of deer management throughout Scotland. This employment also has implications for rural communities and for management of the natural habitat.

Important developments have taken place in the Scottish venison industry over the last four years. In particular, the proportion of venison sold in the United Kingdom has increased from less than 10 per cent to around 30 per cent of total production since 1992 and that proportion continues to increase annually. That is important. It reduces our dependence on traditional European markets, which are notoriously susceptible to currency fluctuations, and competition from other world sources, particularly New Zealand and eastern Europe.

Under the 1995 game meat regulation there is rigorous control of food hygiene standards in respect of all venison intended for export. However, this is not the case for venison for United Kingdom consumption. Yet our customers, in particular the retail multiples with whom we are making a good deal of progress, are increasingly demanding that game meat products should meet the standards of traceability required of other meat products notwithstanding the unusual circumstances in which they are produced.

The venison industry is characterised at producer level by a fragmented approach which reflects the relatively small size of the average producer business and its remoteness from the market and also a lack of co-ordination with neighbours.

As to our customers, the game dealers and processors, the larger companies have responded to the needs of the consumer by introducing partial tagging systems of their own. However, at this point in the supply chain there is again a lack of co-ordination which can only be addressed by a central system. The measures recommended in the Association of Deer Management Group's consultancy study are all intended to rationalise and co-ordinate the industry and to shorten the supply chain. The introduction of a universal system of traceability is a vital element.

I suppose that it could be claimed that our desire for the introduction of a carcass tagging system is slightly at odds with the deregulation philosophy of the Government. Also, if the case for tagging is based only on its importance for the industry, the industry could introduce it on a voluntary basis. However, the Red Deer Commission working group has concluded that a voluntary system would not be workable.

Agricultural occupiers and foresters are entitled to shoot deer to protect their interests either under authorisations from the Red Deer Commission in terms of the Deer (Scotland) Act 1959 or under agricultural holdings legislation where an authorisation is required. Those who fall into this category and shoot deer only on an irregular opportunistic basis do not have a primary interest in venison production and have little incentive to bow to the improving industry standards at which the ADM Groups is aiming.

Thus a significant quantity of venison is produced in Scotland which, in terms of the 1995 game meat regulations, can be legally disposed of in the United Kingdom without veterinary inspection, and without conforming to any accepted standards of handling or lardering. This significant proportion of total Scottish production has consistently been the source of the substandard product which undermines the efforts of the industry to improve the consumer image of venison.

A further aspect of the unregulated element of the venison trade is that lack of traceability creates a situation where no deer management group or indeed the Red Deer Commission can accurately assess the total cull that has been taken from the deer herd. Thus, the establishment of agreed culling strategies by deer management groups is undermined by uncertainty. The fact is that we just do not know how many we are shooting.

A related negative effect is that deer management plans, which have been developed by a joint working group of the ADMG, the Red Deer Commission, SNH and Forest Enterprise at present, will be unlikely to be taken up in all deer management group areas owing to the indeterminable "black loss", which makes the development of reliable population models difficult. A compulsory tagging system would result in a closer record of the annual cull in Scotland with reduced opportunity for abuse and illegal disposal.

There is a potential research benefit from a tagging system, if modelled on the successful Forest Enterprise system which comprises three tags, one of which is placed in the jaw, one inside the animal—the pluck as it is known, the liver and heart—and the third in the jawbone. The jawbone is used for ageing and can be retained for examination and through the tag can be linked back to the carcass information which will be recorded on the standard larder sheet which is to be introduced by the Red Deer Commission in 1996. This would provide a comprehensive data set in respect of each deer culled which will be a potentially valuable research resource, particularly relevant to cohort analysis and population modelling. We are making much progress towards accurate counting of the deer. I repeat: at the moment we just do not know how many are being shot.

The Red Deer Commission working group has concluded that a compulsory scheme would address all the points noted above and that it could be implemented without difficulty and at modest cost and without imposing a significant additional administrative burden on the commission itself, as follows. Tags would be purchased from the commission by all producers; the cost of a set of tags together with the associated administration, is estimated to be less than £1 per deer carcass. There I might add that deer forests have received a very substantial benefit in recent years in that the sporting rates, which we used to pay, are no longer payable. That has saved the industry roughly £1 million per year. The deer forests certainly have the money to set up this system themselves if they want it.

The tags would be indestructible and incapable of re-use. A simple system could be introduced whereby all those who shoot deer, either in the course of normal deer management or under authorisation or exemptions, would be required to obtain the requisite number of tags from the Deer Commission, submit a statutory return of deer killed, showing the tag number, and to return surplus tags at the end of the year. The commission already has the power to examine game dealers' records and, if these are amended to include the tag number for each carcass, a further check will be available as to the disposal of each carcass which can be cross-checked against its source. Thus all tags will be fully accountable, preventing abuse or the development of a black market in tags. I suppose it is possible that a small black market in tags will develop. However, I regard that as a very slight evil compared to the benefit which the scheme would bestow on the industry.

In summary, the Association of Deer Management Groups believes that the introduction of a compulsory tagging scheme will yield multiple benefits in terms of improved product quality, increased traceability, reduced potential for abuse and more accurate cull data, all of which would apply throughout the industry. I am advised that no existing legislation or regulation provides a basis for the introduction of such a scheme, and do not therefore wish to miss the opportunity presented by this legislation to press for the amendment to be included. I believe the amendment is widely supported by interests on all sides, and it would also be consistent with the recognised need to move to a more sophisticated system of integrated and sustainable deer management, based on a more rigorous and uniform approach. I beg to move.

Lord Glenarthur

I have a very great deal of sympathy with this amendment. During the passage of the 1982 Bill, there was quite a lot of discussion both on the Floor of the House and in the margins of the work being taken forward to develop that Bill and the sort of proposal which my noble friend has described. One of the purposes of the 1982 Bill and the way it amended the 1959 Act was to make a serious attempt to diminish the effects of poaching. The trade in carcasses which resulted from poaching is just one of the elements which my noble friend has described. To that extent, it very much ties in with his concept of maintaining the quality of carcasses that reach the marketplace.

I well remember my noble friend Lord Mansfield, when he was in the position in which my noble friend Lord Lindsay now finds himself, and the late Lord Dulverton and indeed myself discussing at some length the three elements which seemed to be against the concept of tags: the development of a black market in tags, which my noble friend has described; the question of cost; and the question of administrative and bureaucratic effort, which might be needed to make the system work perfectly.

There was one other idea, which I believe I floated myself, which was connected with the question of records. The records which are described in Section 25B of the 1959 Act seemed to me to present something of an opportunity if at every stage in the handling of a carcass, from the moment that it reaches the larder to the time that it goes onto the dealer and subsequently to whatever the next stage in its processing, it had a record of some sort such as a multicoloured element attached to it—a different colour for each stage—which could be exactly the same as the venison dealer's record. I was not aware of the background to this, but if some sort of common form were to be introduced by the deer commission, that might make it easier.

I have to say that I find my noble friend's arguments about a tag, rather than the documentation which I have just described, much more appealing now than I might have done 14 years ago, not least because technology has moved on at a certain pace and it may well be possible to combine modern technology, machine-readable tags and so on in a way which would make this much simpler.

One other point is important. The opportunity to legislate on deer comes around only every fourteen or fifteen years. During the passage of the 1982 Bill, people said it would not happen for another 25 years. It has come forward rather more rapidly than that, but it would be a great mistake not to explore this very thoroughly. The opportunity must be taken to look at it carefully now. To miss the opportunity to do so when further technology might make it more possible would be a great shame. I look forward to hearing what my noble friend has to say.

The Earl of Buchan

I have no idea what the noble Earl the Minister thinks about having this sprung on him at the eleventh hour, but I can guess. I am a little surprised that the noble Lord, Lord Pearson of Rannoch, has brought it up for this reason. I have sat in Edinburgh and here and have learnt a great deal about deer, red deer and other deer. I would therefore be most unhappy about taking this on board now without a great deal more discussion. I am not at all happy about tags, or about poachers, or about efficient policing. I cannot support the amendment of the Lord Pearson of Rannoch and I look forward with great interest to hearing what the noble Earl the Minister has to say.

Viscount Astor

I am rather surprised at what the noble Earl said. The purpose of the Committee stage is for amendments to be tabled and for the Government to consider them. That is the way legislation works. It can work quite quickly. That is the way Bills progress.

To come back to my noble friend's amendment, it has certain advantages because the success of Highland estates is very much dependent on the successful marketing of their products. That means the price of venison being a decent price, and that depends on consumer confidence. We all know what happens when consumer confidence fails. We have seen it in cattle prices. I am sure that there are always arguments that this might be costly and it might be bureaucratic, but of course the cost fundamentally falls on the producers. In terms of bureaucracy, it is work for the producers to do, but we are not asking for anything more than what happens when selling beef cattle. Under the BSE rules, one has to have an extremely complicated passport in order to breed a cow to produce something to sell. That is there to give the consumer and the industry confidence. It has been very successful. I am sure your Lordships know that the price of beef has now risen to the levels it was before the previous scares. Anything we can do to enhance consumer confidence in the product, improve the quality of the product and benefit the venison producers in Scotland must be good for the whole process and must be ultimately good for the management of the deer.

Lady Saltoun of Abernethy

Speaking as a cook, if I am going to buy venison I want to know that it has been produced under decent conditions and that it has been properly hung. That is what a tagging system would tell me. As the wife of an ex-deer forest owner, who, some years ago, went to a great deal of expense to modernise the larder so that his venison was produced under decent conditions, I would certainly reckon that any deer forest owner who did that would welcome the possibility of getting a better price.

The Earl of Lindsay

I shall deal with Amendment No. 75 of my noble friend Lord Pearson of Rannoch in some detail. It raises many issues which are crucial to deer management. There are two visions in my mind, reinforced by the discussion in the Committee. One is of the real benefit of having tags, flagged up by various Members for various reasons. I shall come onto the question of how strong the argument is for mandatory tagging. Clearly, tags serve various purposes. These include the preference of the noble Lady, Lady Saltoun, for well-hung meat, with which I agree, to a wide range of other reasons. My noble friend Lord Astor mentioned BSE.

The other vision which springs to mind is the thought that the cull at the moment in Scotland is about 80,000 deer a year. We are talking about tagging every single bit of venison from Scotland. If we are going to be shooting more roe; if, for some reason—although red deer numbers have stabilised—we decided that the red deer population needed to be reduced by a certain percentage; and if we catch up with some of the black market, we could be talking about 100,000 beasts a year needing to be tagged. If we are talking about three tags per beast, that could mean about 250,000 tags a year floating around Scotland. Therefore, this is an area which requires a great deal of thought. There are benefits to tagging but to go through with mandatory tagging is an immense project. The noble Earl, Lord Buchan, was absolutely right. It requires quite a lot of discussion.

My noble friend Lord Glenarthur pointed out that when he was dealing with what became the Deer (Amendment) (Scotland) Act of 1982, some of the disadvantages were identified; namely the black market element, the cost element and the administrative and bureaucratic element. Those are still issues which we would want to look at very carefully. While we acknowledge the benefits, we want to make very sure that in a deregulatory government we regulate in such a way that the benefits justify the effort. I need hardly point out that as a Scottish Office Minister, if I am to gain permission across the Government to pursue this, the benefits must clearly and significantly outweigh the cost disadvantage and the administrative disadvantage.

We are aware that this is an issue that has motivated discussion. There is some irony in that, as agriculture Minister in Scotland, I receive a good deal of flack from farmers about the cattle passports. We have just introduced the new sheep and goat identification directive—I forget the exact terminology. My noble friend Lord Astor prayed in aid the fact that farmers are used to having documents for cattle, but in fact we fight very fiercely to minimise them when we are negotiating in Europe, and then we do our utmost to persuade farmers that, because of animal health—and we are talking about the ill health of animals rather than the quality of meat—and because of subsidy, we have to put up with these systems. There are many beef and sheep farmers, and indeed goat farmers, who are not very keen about the way in which mandatory tagging and passporting is imposed on animals.

We are well aware of the discussion, both the recent discussion under Stephen Gibbs, and indeed the discussion which has gone back some decades. I would point out that no formal recommendations have been put to me or to the Scottish Office by the Red Deer Commission. We are aware that the working group came up with its recommendations, and I am aware that the Chairman of the Red Deer Commission in evidence in Edinburgh said that his personal opinion was that it probably should be voluntary and not mandatory. Despite all the consultation with the commission and with other bodies prior to this Bill and during the drafting of this Bill, this was not a formal part of the agenda. We are at a stage where for a Government Minister to be convinced that he should make a departure in this direction, he must be fairly certain that there is a real consensus behind it.

We in the Scottish Office were not consulted. I know my noble friend knows that no one came out against it. There are reservations in some quarters, and I know there are many people who think this is a good idea, but we would expect to be part of the consultation process if you were seeking a Scotland-wide view.

It is most important that the costs and the burdens imposed must be more than compensated for by the benefits which arise. That is vital to understanding this.

I fully understand the key benefit of traceability, and that guarantees of traceability within the food chain are increasingly important. This, in itself, may bring some benefits to some people, but I am not sure that there is a major difficulty on hygiene and food safety grounds on this point at present with venison.

On the key point of carcass identification and linking offal to carcasses, my veterinary advisors are confident that the existing systems of identification, run by dealers and suppliers, are working in a satisfactory manner. Beyond that, hygiene requirements are met by an emphasis on control of processes and procedures with a key element being inspection of carcasses at arrival in the slaughterhouse. I understand that the Red Deer Commission working group has met officials concerned with meat hygiene, and these views have been relayed to them.

If a carcass tagging system implies something more than a tag showing origin, such as certain guarantees of handling procedures following killing, then I can well see that customers such as the retail trade could see benefits and would wish to encourage suppliers to adopt such a system. This, however, would imply the equal possibility of a voluntary scheme in which participants in a certain scheme could seek competitive advantage over other competing venison producers who are not prepared to make that effort for competitive advantage. I question whether it needs to be mandatory for that reason. Furthermore ,it occurs to me that a mandatory carcass tagging system would presumably be based around the lowest acceptable common denominator, which falls within health and hygiene thresholds under law, whereas a voluntary tagging system can set what standards that group of people want and could therefore achieve a much higher quality quite deliberately.

In conversation with some of the people behind this system I was given to understand that three out of four of the largest venison wholesale buyers had already embarked on tagging systems with their producers and that the Forestry Commission as we know has its tagging system. So there is precedent for voluntary initiatives in this area.

We certainly welcome any steps taken by the food production industry to improve its marketing position, and my noble friend Lord Pearson of Rannoch has mentioned just how important it is to sell venison out of our remote and rural areas. It produces jobs and maintains livelihoods in those areas. We work through the Marketing Development Scheme to help the Association of Deer Management Groups and others in this field.

The imposition of a mandatory scheme requiring the act of tagging may not deliver the quality assurance which we say the multiple retailer is looking for where every single carcass in Scotland at any one time, from Wigtown to Caithness, is sitting with an identical tag.

In a sense there is no distinction between the better-produced and the less-well-produced. There is also a danger that all the tag ultimately will mean to a purchaser is that the beast was possibly or probably legally killed and that the person who took that beast had the right to take that beast. This assumes no black market in tags. Given the aspirations now of the multiple retailer and its consumer, whether you can say more about how the beast lived and thrived and ate prior to death and how it was hung, for how long it was hung, how it was slaughtered and so on just on that one tag, I am uncertain.

As far as records of deer kills are concerned, there are other provisions in place for monitoring the killing of deer whose effectiveness has to be considered before weighing up the additional benefits on this point that the additional burden of the tagging system would bring. My noble friend Lord Glenarthur is well aware of the arrangements that he himself was involved in putting in place through the 1982 Act. The current system, where the deer commission checks through the venison dealers' licensing system, is possibly not absolutely perfect. It may be that it cannot claim to be 100 per cent. confident about the venison in Scotland, but I would suggest it may not be as inadequate as those promoting this amendment for mandatory tagging suggest. It may be that the deer commission gets sufficient idea of numbers and a very good idea of trends. Whether the 100,000 or 80,000 pieces of venison that are produced annually through the killing of deer in Scotland would not produce such a welter of information that it would take the deer commission much longer to sort out what was going on, I am not sure.

It is an important point that we are not just talking about red deer in this amendment. We are talking about very much larger numbers. We are also talking about an undefined group of people who can shoot. There are so many people in Scotland who have a right to kill and none of them has a statutory quota or limit within which he must remain. All of those many people, therefore, can shoot as many deer as circumstances allow.

The control of poaching may conceivably be enhanced by tagging. Once again, I pose the same question: would the additional burden of tagging justify the additional deterrent that tags might bring? We have various police powers from the 1959 Act, and we have in the 1982 Act further provisions, all of which can act as deterrents, but whether the complications and expense of the tagging system are more than compensated for by the increased control of poaching, I leave that as a question. It is something that we shall be wanting to look at as well.

Tagging works well in other countries, but that tends to be where individuals with a right to shoot deer are issued with legally binding limits. No one could possibly propose that that course of action should be followed in Scotland.

It is also important to recognise that, if carcass tagging is made mandatory, there will have to be a sanction for failure to attach a tag or for doing so illegally. Such a sanction could affect many people in the venison chain. At the very least, the full consequences of creating a new offence of this sort should be fully examined before any steps are taken down the road. We all know and stay with people in Scotland and roe may be served as part of the hospitality—a roe which may have been shot on that farm or estate. In theory, that roe sitting in the deep freeze belonging to the owner of that land should also have a tag, or presumably he too is breaking the law. It might even be some other form of deer apart from roe or red.

It has been suggested that the Bill could merely contain an enabling provision to allow the Secretary of State to introduce a carcass-tagging system if he considered it appropriate to do so. I know that this House has views about enabling legislation, but I know also that this House has enough common sense to know that if benefits outweighed the constitutional doubts, it would be prepared to go ahead and do it. However, if, after scrutiny and the consultation that this subject deserves, we find that the mandatory tagging system is not the right way to go forward, I suggest that we do not want to put an enabling power into the Bill for something that turned out to be ill-advised.

Because I agree with almost all the benefits that will arise from tagging that have been pointed out by noble Lords, I shall continue to support very enthusiastically the moves already made by the industry to introduce it. In fact, so significant are some of the benefits that I question whether the industry does not have sufficient incentive already to pursue voluntary tagging, whether it be marketing-oriented, hygiene-oriented, information-oriented or whatever, without having to resort to a compulsory system. The precedent for that is well established with the Forestry Commission and some deer groups.

I hope that I have acknowledged the real benefits that tags can bring. I hope also that I have described the real doubts that we have and the clarification that we think we need before we can give this a more enthusiastic response.

6.15 p.m.

Lady Saltoun of Abernethy

If this clause consisted only of subsection (1) without the last two words "the scheme", it would merely be an enabling clause that would enable the Secretary of State to introduce a scheme if he thought fit without needing further primary legislation. Would the noble Earl care to comment on that?

Viscount Astor

Perhaps I may follow the suggestion made by my noble friend Lady Saltoun because my noble friend has put the case very fairly. There are two very distinct sides to this argument. He said quite rightly that many farmers do not like filling in forms and, indeed, that the passports are terrible. They certainly are. They are impossible to fill in. One of the advantages of them is that they have given the consumer confidence, and most people, while complaining of having to do it, are grateful that there is a market for the produce.

Deer Bills are very few and far between. They come between 14 and 23-year gaps. I do not think there is an area that has such few bills. Therefore, it is very difficult to get any legislation in the middle. I think that there should be consultation. I suspect that consultation will take quite a long time, probably rather longer than the passage of this Bill. I would, therefore, ask my noble friend the Minister whether he would consider—as suggested by the noble Lady, Lady Saltoun—a very simple enabling clause that would give the Secretary of State power by an affirmative resolution perhaps to introduce a scheme if he considered it necessary.

I do not think that would add very burdensome words to the Bill or add many unnecessary words to the legislation. I know I accused my noble friend the other day of adding on unnecessary words and no doubt he will very fairly accuse me of doing exactly the same thing. But in this case I hope he might consider that a very simple clause would not be unnecessary and would be there as a safeguard, because that is what we are talking about. If we do not have another Deer Bill for another 40 years, at least there is the opportunity to introduce something if the consultation proves that everybody is keen on the idea. I am sure that my noble friend has shown very clearly the best way forward for all of those concerns.

The Earl of Lindsay

I can confirm to the noble Lady, Lady Saltoun, that primary legislation would not be needed in the scenario that she envisaged—the removal of the last two words of the first subsection of the clause and the removal of all other subsections in the amendment. I am glad that my noble friend Lord Astor came up with an unprompted confession about the mixed merits of wording which may not be strictly necessary after he chided me the other day. This Bill was five or six years in the making. The Chairman of the Red Deer Commission will know better than I how many days, weeks, months and years were involved in this. The consultation might, therefore, take longer than this Bill will take during Parliament—but I hope not as long as the whole preparation of the Bill.

I do not disagree with my noble friend. Let us look at this properly. If in the parliamentary time available to the Bill it makes sense, because of the likelihood that there is real merit in having this, let us consider how this might be possible. If at our end we continue to entertain doubts in principle about whether it is 300,000 tags, how large the black market will be and whether this is something which can be done with a voluntary scheme, then we may have to communicate those doubts. But I am genuinely open-minded as to the real benefits that the tags can bring.

The last point is, if I had a deer forest adjacent to my noble friend Lord Astor and we were both selling our beasts onto the mainland and down into the markets, I would ring up the best buyers and I would say, "I will tag mine to confirm that they have been killed in a certain way; that they have eaten the very finest of grasses on the island; that they have been hung properly; that they have been butchered properly. You will know my beasts as they have tags, whereas my noble friend next door is really not to be trusted; he treats his venison atrociously". I would seek competitive advantage by voluntarily taking on a tagging system in that way.

Viscount Astor

Perhaps I may quickly answer my noble friend. He will be glad to hear that all the deer that leave the Isle of Jura, whoever they may have been shot with, are all tagged with a special Jura number to encourage people to eat the very fine venison that comes from the island, particularly when the deer have had such good things to eat as seaweed in addition to all the grass. We do that collectively under the deer management group.

Lord Pearson of Rannoch

I am sure the produce of my noble friend Lord Astor is not in doubt. However, what is in doubt is the amount of attention that the noble Earl, Lord Buchan, was paying to our procedures in Edinburgh, because I must take issue with him when he suggests that I have sprung this one on the Committee. Not only have we heard from my noble friend Lord Glenarthur, but it is a chestnut that has been around for a number of years.

In our proceedings in Edinburgh, I was most careful to raise the issue of tagging with as many of our witnesses as I thought appropriate. Perhaps I could refer the noble Earl, Lord Buchan, to page 46 of the voluminous minutes which we took in Edinburgh, Question 76, when I put the question of tagging to Mr. Hugh Rose of the British Deer Society and he was in favour of the scheme. I am afraid that I have not been able to go through this voluminous set of evidence to find all the other occasions when I raised the subject.

I agree with the noble Earl that the matter was not fully debated in Edinburgh, but the noble Earl will remember that that was because Mr. Stephen Gibbs, the chairman of the Association of Deer Management Groups and the chairman of the joint committee between the Red Deer Commission and the Association of Deer Management Groups was unable to reach us in Edinburgh as he was stuck in the train in the snow in Carlisle.

Mr. Stephen Gibbs was to have been the first witness after lunch on the second day, and therefore the noble Earl can be forgiven for not remembering the issue perhaps with the enthusiasm that it deserves. I would, however, point out to him that if he were to go as far as page 129 of our voluminous minutes, that we did have a more serious discussion with Dr. Bill Mutch, who is one of the great experts on deer in Scotland. Towards the bottom of the right-hand column on that page, Question 241—I will not bore the Committee with reading it out—Dr. Mutch came out very strongly in favour of a system of tagging for many of the reasons which I repeated to noble Lords this afternoon. Therefore I forgive the noble Earl, Lord Buchan, though I would not want him to think that I tried to pull a fast one in any way.

I am most grateful to my noble friend the Minister for at least leaving the matter open for further discussion. I have to confess that I have been looking at this scheme as something more for red deer in the Highlands of Scotland. I see that it could become rather more complicated for roe deer in the Borders, in gardens and all the rest of it. It would be of benefit if all of us who are interested in this subject were to study what my noble friend has said in Hansard. I repeat that this is only an enabling clause and possibly my noble friend Lady Saltoun's suggestion would be adequate. In those circumstances, I trust we can continue with the discussion of the subject. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

Clause 9 [Interpretation of the principal Act]:

The Earl of Lindsay moved Amendment No. 76: Page 8, line 43, at end insert— (""deer management" includes the management of deer for sporting purposes;"").

The noble Earl said: I spoke to Amendment No. 76 when we dealt with Amendment No. 15 on appointments. I beg to move.

On Question, amendment agreed to.

Lady Saltoun of Abernethy moved Amendment No. 77: Page 9, line 6, leave out ("stock-proof') and insert ("deer-proof").

The noble Lady said: I wonder whether the Minister would look again at the definition of "enclosed". Surely in the context of this Bill, the definition must be "deer-proof", not just "stock-proof", which seems irrelevant in the context of the Deer Bill. I know it is the same as the 1959 Act, but again, as before, I wonder whether it was right then. I beg to move.

The Earl of Lindsay

Of course I will look again at this, if the noble Lady would like me to do so. It is something which we have revisited since Second Reading and the Edinburgh evidence-taking.

Under the 1959 Act, occupiers of enclosed woodland can shoot out of season to prevent serious damage without requiring authorisation by the commission. The Bill does not change this right in any way. In order to allow for a clear distinction to be made between this right and the commission's proposed power to authorise out of season shooting to protect unenclosed woodlands from serious damage, we feel a clear definition of "enclosed" is required. On the advice of the Forestry Commission, the definition we have adopted reflects standard practice across most of Scotland, especially in the south of Scotland, where stock-proof fences are the norm.

I fear that it may be seen to be unreasonable to restrict or remove the existing rights of some woodland owners who regard a woodland surrounded by a stock-proof fence as being an enclosed woodland. If one sought to introduce a geographic distinction into the amendment to say that certain areas of an enclosed woodland had to have a deer-proof fence whereas in other areas, perhaps in the Borders, one did not have to have such a substantial fence, I understand that various difficulties would be raised in terms of the legal distinction between the red deer range and the non-red deer range.

I am worried that we have a Bill that involves the whole of Scotland, that we have different sizes of deer in different parts of Scotland and that we have the deer range moving anyway as people are enclosing or planting more land. The one comfort I can bring is that the stock fence must be effective. Therefore, if a fence is not effectively a stock fence—in other words, if it is down in one part—then it no longer qualifies as a stock fence and that woodland no longer qualifies as being enclosed woodland. The noble Lady has asked me to take another look at this, and of course I shall.

Lady Saltoun of Abernethy

I am grateful to the noble Earl for that. Of course, a fence which is down is no use at all—I entirely agree with him. I beg to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 78 and 79 not moved.]

Lord Pearson of Rannoch moved Amendment No. 80: Page 9, line 18, leave out from ("features") to end of line 19.

The noble Lord said: Amendment No. 80 would seek to remove the words, and the natural beauty and amenity of the countryside", from the definition of natural heritage which is to be found in Clause 9 of the Bill. The definition at the moment reads: 'natural heritage' includes flora and fauna, geological and physiographical features and the natural beauty and amenity of the countryside".

It is those last words which this amendment would remove.

I have tabled this amendment to try to find out from my noble friend the Minister exactly why these words have been included in this part of the definition. We can all understand that natural heritage does include the flora and fauna and the geological and physiographical features, and of course the natural beauty is also quite obvious. But what does the "amenity of the countryside" mean in this respect? When one talks of the natural beauty, is it not as though some people would find the Highlands of Scotland extremely beautiful as they are now—more or less denuded of trees—while others might not find them beautiful unless the forest or scrub had been returned to it. That is why these words, and whether or not they are included in the definition of natural heritage, are quite important to our understanding of where the natural heritage interest may take us in this Bill, especially in view of all the conversations we have had about including natural heritage or not in Clause 4 of the Bill.

It is a very simple amendment. I should like my noble friend the Minister to explain why particularly the words the "amenity of the countryside" are included under the natural heritage. I beg to move.

6.30 p.m.

The Earl of Lindsay

I am grateful to my noble friend Lord Pearson of Rannoch for explaining Amendment No. 80. The interpretation of natural heritage is based on an Act which he knows well—the Natural Heritage (Scotland) Act 1991. Broadly, we see the same definition as used in that Act as being the most useful definition to have in this Bill. We therefore saw no deliberate reason to start amending that definition which has become well known and respected.

For the most part, the Red Deer Commission's interest in the natural heritage will be concerned with the flora, the habitat and the fauna that rely on that flora and habitat. Therefore, in terms of the serious damage which is mentioned in Clause 4 and Clause 5, the deer commission will tend to look at serious damage to habitat and to flora. However, it is not impossible that other parts of the definition used in the Natural Heritage (Scotland) Act 1991 could in extreme circumstances be useful for the purposes of the deer commission; it could be that the natural beauty of an area is so damaged by deer that the deer commission feels it ought to promote some of its powers within the Bill.

It could be that the geology, or conceivably some other aspect of that definition, is for some reason compromised by the unusual damage done by deer. We see that as unlikely but we have to acknowledge that it is not impossible. Because of the acceptability, as it were, of that definition in 1991 and its broad suitability to this Bill, we have decided that this is the best definition.

Lord Pearson of Rannoch

Can I press my noble friend on the word "amenity"?

The Earl of Lindsay

Yes. Once again we are talking about some unusual circumstances, but it could be that access to the countryside enjoyed in a certain place is for some reason subject to serious damage by the deer in that place. We could be talking about the way footpaths are, or are not, maintained because of the damage that deer are doing. It is because of the importance of the amenity and access side of the Scottish countryside that we do not want specifically to exclude them from the definition of natural heritage in the Bill.

Lord Pearson of Rannoch

I am grateful to my noble friend. I recognise the description of the natural heritage from the 1991 SNH Act. I think there was general agreement at the time that no one understood it then; I am not sure that I am any nearer to understanding it now. It is true that the natural beauty and amenity of the countryside are expressions which one would expect to find in the phrase "natural heritage" when debating a Bill or drawing up an Act to bring Scottish Natural Heritage into being. Those aspects were, and are, very much part of its remit. I am a little bemused to see them in this Bill, and I cannot say that I am immensely informed by what my noble friend said. However, I thank him for his courtesy and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 81 and 82 not moved.]

The Earl of Lindsay moved Amendment No. 83: Page 9, line 30, at end insert— (""species" includes any hybrid of different species of deer;").

The noble Earl said: I spoke to Amendment No. 83 when moving Amendment No. 49 on close seasons. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 84 and 85 not moved.]

Lady Saltoun of Abernethy moved Amendment No. 86: Page 9, line 32, leave out ("are grown") and insert ("have been planted").

The noble Lady said: With regard to the definition of woodland, the phrase "trees are grown" seems to me a little ambiguous. It suggests that the trees have been planted, but it does not seem to me very clear. If it is intended to refer to self-seeded trees perhaps the phrase should be "trees have grown" or "trees are growing". We would prefer the definition "have been planted". The substitution of mature woodlands or groups of mature trees", is intended to make it clear that it is not just young plantations that are referred to. I beg to move.

The Earl of Lindsay

I am grateful to the noble Lady for moving Amendments Nos. 86 to 88 and explaining them. It has been suggested that the definition of "woodland" in Clause 9 needs amending to ensure that the definition focuses on mature woodland and that areas of moorland where vestigial trees are present are excluded. In practice, this is what the definition implies. The phrase "trees are grown" implies a deliberate act of growing trees rather than simply the presence of trees or seeds. It would not be right to limit the definition to places where trees have been planted or mature woods exist, as has been suggested, since the modern concept of forestry as applied by the Forestry Commission includes woods that are regenerating as well as planted and which may be beside mature woodlands as well as a part of them. Although the regeneration of natural woodland is increasingly popular, it still comprises a fairly small part of our overall woodland policy. Nevertheless, it is a very important part. Therefore, we must recognise that regeneration is a legitimate woodland and forestry activity as much as planted trees in the orthodox sense.

Lord Pearson of Rannoch

Before my noble friend sits down, I referred earlier to land where trees clearly exist although they are very small, perhaps very young, often only two or three inches high. Particularly rowan trees and silver birch survive very well in those circumstances. But at a casual glance one would take the land to be moorland, and it is only when looks at it closely that one sees that there are trees there. If that land is then fenced off the trees begin to grow because the sheep and perhaps the deer are no longer grazing the ground in question. Can my noble friend give an assurance that the land to which I have just referred is not covered by this definition and therefore does not need to cause me worry under Clause 4 of the Bill?

The Earl of Lindsay

The definition is driven by the deliberate act of growing, Therefore if there are trees a few inches high or even higher that are not deliberately being grown, they fall outside this definition. Therefore, on a grouse moor on Rannoch Moor or wherever, trees that are simply surviving just under browsing height, but are not the subject of deliberate husbandry, will not be part of this definition. If my noble friend puts a fence up around that area to exclude grazing, both by sheep and deer, and pursues policies which promote the growth of those trees, those trees are being grown, although my noble friend has not actually planted them.

Lord Pearson of Rannoch

I am most grateful to my noble friend for that explanation, which clarifies what is on the face of the Bill. Does my noble friend wish to withdraw?

Lady Saltoun of Abernethy

I am most grateful to the noble Earl for his explanation and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 88 not moved.]

Clause 9, as amended, agreed to.

Clauses 10 and 11 agreed to.

Schedule 1 [Minor and consequential amendments]:

The Earl of Lindsay moved Amendments Nos. 89 to 91: Page 11, line 5, at end insert— ("( ) In section 2 (appointment of panels), subsections (3) and (4) shall cease to have effect."). Page 11, line 30, leave out ("animals") and insert ("deer"). Page 11, line 37, at end insert— ("( ) In section 10 (enforcement of control schemes), at the end there shall be inserted the following words "; and where the carrying out of such a requirement involves the killing of deer the Commission shall have power to dispose by sale or otherwise of the carcase of any deer so killed.".").

The noble Earl said: I spoke to Amendment No. 89 when moving Amendment No. 23. I spoke to Amendment No. 90 when moving Amendment No. 21 and I spoke to Amendment No. 91 when moving Amendment No. 35. I beg to move.

On Question, amendments agreed to.

[Amendment No. 92 not moved.]

The Earl of Lindsay moved Amendment No. 93: Page 12, line 12, at end insert ("and the words "the provisions of this Part of "").

The noble Earl said: This is a small technical amendment to which I spoke when moving Amendment No. 21. I beg to move.

On Question, amendment agreed to.

Lady Saltoun of Abernethy moved Amendment No. 94: Page 12, line 32, after ("subsection (2A)") insert ("— ( ) in paragraph (a), for the word "aircraft" there shall be substituted the words "moving vehicle"; and ( ) in paragraph (b),").

The noble Lady said: Since the introduction of the Deer (Amendment) (Scotland) Bill a number of interested people, including the Chairman of the Red Deer Commission, have called for the shooting of deer from all moving vehicles to be made an offence. I have raised this with a number of people since Second Reading and many said that there is no need for an amendment, because it is already in legislation. I searched through the legislation to find it, but I could not find it anywhere, and nobody could tell me where it was. That is why I am moving this amendment, which is designed to ensure that shooting deer from any moving vehicle is made an offence.

Shooting deer from a moving vehicle can lead to badly aimed shots, and it also goes firmly against the stalking tradition. In this context, a vehicle would include aircraft and boats, as well as land vehicles. In 1982, Parliament made shooting from an aircraft an offence for those very reasons, and this amendment will ensure that this practice is made an offence for all moving vehicles. The amendment will also have the effect of helping to ensure that the use of vehicles for driving deer, if authorised by the commission as proposed in Clause 7 of the Bill, is not abused in any way. I beg to move.

The Earl of Lindsay

I am glad to accept this amendment made by the noble Lady, Lady Saltoun. There are very strong welfare reasons for the amendment. She is quite right—there was some doubt as to just where, in other legislation, this was properly prohibited. We are happy to accept the amendment.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 95 to 99: Page 13, line 29, at end insert— ("( ) In section 27(1) (powers of search and seizure) the words "firearm or ammunition, vehicle or boat" shall cease to have effect."). Page 13, line 32, at end insert— ("( ) Section 31(2) shall cease to have effect."). Page 13, line 35, at beginning insert— ("( ) in subsection (1), after the word "deprived" there shall be inserted the words ", or about to be deprived,";"). Page 14, line 16, after ("2A") insert ("— (1)"). Page 14, line 17, at end insert ("and (ii) for sub-paragraph (a) there shall be substituted the following sub-paragraph— (a) has had his estate sequestrated, has been adjudged bankrupt, has made an arrangement with his creditors, or has granted a trust deed for his creditors or made a composition contract;";").

The noble Earl said: I spoke to Amendments Nos. 95 to 99 when moving Amendment No. 21. I beg to move.

On Question, amendments agreed to.

Schedule 1, as amended, agreed to.

Schedule 2 [Repeals]:

The Earl of Lindsay moved Amendment No. 100: Page 15, line 6, column 3, at end insert— ("In section 2, subsections (3) and (4).").

The noble Earl said: I spoke to Amendment No. 100 when moving Amendment No. 23. I beg to move.

On Question, amendment agreed to.

[Amendment No. 101 not moved.]

The Earl of Lindsay moved Amendments Nos. 102 to 104: Page 15, line 20, column 3, at end insert ("and the words "the provisions of this Part of "."). Page 15, line 27, column 3, at end insert— ("In section 27, in subsection (1), the words "firearm or ammunition, vehicle or boat"."). Page 15, line 27, column 3, at end insert— ("In section 31, subsection (2).").

The noble Earl said: I spoke to Amendments Nos. 102 to 104 when speaking to Amendment No. 21. I beg to move.

On Question, amendments agreed to.

Schedule 2, as amended, agreed to.

Bill to be reported with amendments.

Committee adjourned at thirteen minutes before seven o'clock.