Grand Committee Report of 4 March 1996

Official Report of the Committee on the Deer (Amendment) (Scotland) Bill [H.L.]
Monday, 4th March 1996.
The Committee met in the Moses Room at half past three of the clock.
[The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]
The Deputy Chairman of Committees (Lord Ampthill): Before I put the Question that the Title be postponed, it may be helpful to remind your Lordships of the procedure for today's Committee. Except in one important respect, our proceedings will be exactly as in a normal Committee of the Whole House. We shall go through the Bill clause by clause; noble Lords will speak standing; all noble Lords are free to attend and participate; and the proceedings will be recorded in Hansard. But the House has agreed there shall be no Divisions in this Committee. Any issue on which agreement cannot be reached should be considered again at the Report stage when, if necessary, a Division may be called. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.
I should also explain what will happen if there is a Division in the Chamber while we are sitting. This Committee will adjourn as soon as the Division bells are rung and will resume after 10 minutes.
On Question, Title postponed.
Clause 1 [Constitution, functions and membership of Deer Commission for Scotland]:
Lord Pearson of Rannoch Lord Pearson of Rannoch moved Amendment No. 1:
Page 1, line 15, at end insert ("welfare,").
The noble Lord said: I shall start by declaring the two interests which I declared at Second Reading and in the Select Committee in Edinburgh in that I own a deer forest and that I sit on the Stalking Committee of the British Field Sports Society. Amendment No. 1 is grouped with Amendments Nos. 19 and 85, to which I shall also speak. Amendment No. 1 would require the new deer commission to further the welfare of deer, as well as their conservation, control and sustainable management, which are already mentioned in Clause 1 as being statutory functions of the new commission. So it would add the deer's welfare to the commission's responsibilities.
I shall not weary the Committee with a repetition of my Second Reading speech, but nearly all of the 50 or so amendments to which I and some other noble Lords have put our names have been tabled with the welfare of deer in mind. I mention this because there is the outside chance that there may be some people outside this House, and perhaps even one or two Members of the Committee, who might make the mistake of thinking that some of our amendments have been tabled more with the welfare of deer forest owners in mind than that of the deer, or indeed of the natural heritage.
To put this fear into perspective let me say at once, as I indicated at Second Reading, that there are certainly a number of deer forests which have not shot enough deer in the past, and some which are not doing so today. This Bill comes at a time when that situation has been improving rapidly in recent years, thanks largely to the setting up of our deer management groups guided by the Association of Deer Management Groups which now speaks for over 90 per cent. of the Highland land mass, and thanks also to the new collaboration which exists between the groups and the Red Deer Commission. That collaboration is underlined and supported by the new harmony which has broken out with Scottish Natural Heritage—it is a harmony which owes not a little to the amendments passed in this House in 1991 when SNH was set up.
I would just remind any Members of the Committee who might think that some of our amendments are slanted too much in favour of land owners that that was precisely the charge made against our amendments in 1991, and yet those amendments are now generally regarded as having proved beneficial to the natural heritage, the land owner, and the wider interests alike. I trust that they may serve as something of a track record for the work which lies ahead of us on this Bill.
I regret that our new Select Committee procedure in Scotland did not include making perhaps the briefest of reports about those matters on which the committee was in broad agreement. That would have been helpful to this stage, and to subsequent stages, of the Bill. Be that as it may, if there was one matter about which there was such broad agreement, I should have thought it would be that the new commission should have the duty of looking after the welfare of deer. As I recall it, all our witnesses agreed with that. Indeed, even my noble friend the Minister said that the Government:
"see the welfare of deer as being unavoidably central to their control, their conservation and their sustainable management."
I am sure that we all agree with that, but it leads many of us to go on and say that the word "welfare" should therefore be on the face of the Bill.
In Amendment No. 85 I have attempted a definition of the word "welfare" in that context, and I should like to quote it for the record:
""welfare" includes the concept that deer are living within the capacity of their normal range,"
at the time of year in question,
"which should support them in a healthy condition and that management to achieve this requires the removal, by taking or killing, of old and unhealthy animals or for the purposes of reducing the herd to a number which does not exceed the capacity of their normal range, by means which do not cause unnecessary suffering."
When the amendment suggests that deer should be living
"within the capacity of their normal range",
that implies that they should not be so numerous as to be damaging the natural heritage interest. The definition may not be ideal—I suspect it is not—and no doubt it can be changed, but I trust that your Lordships can see that it is put forward in good faith.
I have to confess that I was a little worried when my noble friend the Minister implied that it is not necessary to have the word "welfare" itself on the face of the Bill,

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but that it is somehow presumed to be included in the words, "conservation" or "control" or "sustainable management". It is not. Each one of those expressions could disguise considerable unnecessary cruelty to our wild deer, and that is what this amendment is aimed at preventing.
Finally, there are a few dark—if rather silly—rumours being put about by those who do not wish to see the word "welfare" on the face of the Bill. On the one hand, those of us who represent the sporting interest in deer are being told that having "welfare" on the face of the Bill might come to mean that we could not shoot them. We are told that that may be especially true when contraceptive schemes have reached a stage of perfection, which is well over the distant horizon at the moment. On the other hand, it is being suggested that the welfare of deer is incompatible with the drastic reduction in numbers which is sought in certain quarters.
Both those suggestions seem irrelevant to me, especially when set against what is to me an imperative with this Bill; that is, that whatever carrying capacity may eventually be decided for our deer range, our largest wild mammal should not be subjected to unnecessary suffering when its numbers are reduced. I therefore commend the amendment to the Committee. I beg to move.
Viscount Astor: I wish to support the amendment moved by my noble friend, but before I do so perhaps I can make two points. The first is to declare an interest. I am the tenant of a deer forest in Scotland on the Isle of Jura. The second point I should like to make is that I spent many hours reading the evidence of the Scottish Select Committee, which showed what a good job the committee did. However, one point about the committee rather alarmed me; that is, that it consisted only of Scottish Peers.
It may be said that that is a thoroughly sensible thing to do, but it rather concerns me. It seems to me that we are rather different from another place. We are not like the Commons in that we do not represent any area or constituency. Our writ of summons does not say that we come from a certain county that we must necessarily represent. We represent the whole of this country and therefore, in spite of the fact that, as a so-called English Peer, I am a member of the Scottish Peers' Association, because I was not a Scottish Peer as such, I was excluded from being on that Select Committee. There were probably other very good reasons for excluding me, but I hope it was not because I am English.
The point I should like to make is that we must not fall into the trap of having only Scottish Peers on Scottish Bills, any more than we should have only Welsh Peers on Welsh Bills or indeed English Peers on English Bills. It would be a great pity if all Scottish Peers were excluded from sitting on English Select Committees. Having made that plea to those who are in charge of those matters, perhaps I can come back to the amendment before us.
I believe that the word "welfare" is very important. It sums up everything on which those of us who care about deer in Scotland want to concentrate; that is, the welfare
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of deer. When the SNH was set up by an Act a few years ago, it made it entirely clear that its remit was to look after the heritage—the flora, the fauna and such things. We should be clear that the deer commission is there to look after the welfare of deer. It follows that the welfare of deer includes their management and everything that falls under that heading. It is a good word on which to hang all that we care about whether it is shooting, conservation or marauding. Welfare must be paramount in our minds. That is why I support the amendment.
Lord Glenarthur: I very much support the amendment. The term "conservation" which appears in the Bill in subsection (1)(a) occurs also, of course, in the Natural Heritage (Scotland) Act 1991. However, it does not go far enough in trying to indicate how deer are to be protected as well as dealt with in ways that the Bill describes in the light of the changes introduced by that Act. It seems to me that a real weakness exists here. The welfare of deer, however the term is used, is extremely important. I had thought that the husbandry of deer would be appropriate, but that is difficult to imagine with what is not a domestic animal. I support very much the tenor of the amendment. It would give a great deal of confidence to all concerned if somehow the concept of welfare could be brought into the Bill.
The Earl of Mar and Kellie: I start by declaring an interest. I am the owner of an estate in Scotland and I believe that there are 12 roe deer on it. I have not seen them but my forester tells me they are there. I support the inclusion of the word "welfare" on the face of the Bill.
I come back to the challenge over whether this is an issue for Scots Peers or anyone else. I was very heartened by the remarks of the noble Earl, Lord Lindsay, at col. 828 on Second Reading when he said:
"I am sure that noble Lords understand that the specific nature of deer issues affecting us in Scotland differ sometimes considerably from those elsewhere in the United Kingdom and that therefore a specific Scottish approach to deer is required".
I liked that very much, and I am very pleased to read it.
In Scotland, we are a fairly dour bunch on occasion, not saying too much when we do not need to do so. However, I believe that the addition of a meaningful word such as "welfare" would be very useful and would clarify the issue for all time. I hope that the Minister will agree not to leave it implicit.
Lady Saltoun of Abernethy: I should declare an interest. A family trust owns a deer forest, but I do not have a beneficial interest in the trust. The real point is that although it has been suggested that sustainable management includes welfare some of us are not entirely convinced.
Lord Carmichael of Kelvingrove: It is difficult to oppose the idea proposed by the amendment if one is concerned about the welfare of deer. But there is a problem. The noble Lord, Lord Pearson of Rannoch, put me in a dilemma when he talked about the capacity of the environment. Who decides what the capacity of the environment is? The shooters may have quite a different

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idea from those who are rearing deer for slaughter for venison. It is a very difficult issue. The other point concerned the question of whether husbandry is perhaps a better word, but, again, you enter into a difficulty. The whole question of deer capacity and why certain deer are encouraged for their big antlers or for good venison meat is a closed circle. This is a very difficult one.
On the other hand, I understand that the Wild Mammals (Protection) Bill either has had or is about to have Royal Assent and since we are concerned to some extent with the whole question of animal welfare—at least I hope we are—it would be very difficult not to accept the amendment, although we have a great deal more work to do in deciding what capacity a deer forest or a deer area can hold. I do believe it means different things to different people. However, by and large I will give my support to the inclusion of welfare.
Baroness Robson of Kiddington: I would very much like to support this amendment and while doing it, I would like to point out that the noble Viscount, Lord Astor, said that it should not only be Scottish Peers who take part in this Bill. He said he was not a Scottish Peer! I am neither Scottish, Welsh nor English because I was not born in this country, so I am a British Peer, and I would like to take part on that basis.
At Second Reading I spent some time on the importance of introducing the word "welfare" and although I am a British Life Peer I do have an estate in Scotland and I do have a deer forest. It is at the heart of every person who is involved in Scotland to have a feeling for the welfare of the deer on their land. I would therefore very much like to support the amendment.
Viscount Astor: Perhaps I may briefly advise the noble Baroness since she was kind enough to mention that she is a British Peer—indeed so are we all. The point I was making was that it was not this Committee, because this is a Committee of the Whole House, but the Scottish Select Committee which sat in Scotland.
Baroness Robson of Kiddington: I was not part of that.
The Parliamentary Under-Secretary of State, Scottish Office (The Earl of Lindsay): Very little separates us here. Everything that those who have spoken want, I also want. The difference between us, which I hope is a very small one, is how we go about achieving that and how we do so without risking other consequences. I would just say to my noble friend Lord Astor that the membership of the committee was agreed by the House on a Motion from the Committee of Selection. The best thing I can do is to pass on to that committee what my noble friend has said so that it can bear in mind the points made. In fact, I entirely agree with him. The whole strength of the House is in the fact that we have a very wide range of wisdom and expertise. My noble friend's expertise in Scottish deer is well known. I will make sure that the message gets through.
The original proposals from the Red Deer Commission contained the suggestion that its general functions should be widened to include "welfare" as well as "sustainable management". However, in drawing
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up the Bill we had it clearly in mind that, though the Red Deer Commission takes an interest in aspects of deer welfare, we do not wish to impose a primary duty on the commission to further the welfare of deer, which are, after all, wild animals. That might in certain circumstances conflict with legitimate pursuits concerned with the control of deer numbers, such as the sporting interest in deer.
In fact, welfare is acknowledged in certain provisions in the 1959 Act; for instance, in the close season and anti-poaching provisions and restrictions on the methods of killing deer, including the commission's published code on night shooting. Welfare is also an integral part of sustainable management. The concept that deer should live in balance with their habitats needs to be pursued as much for the long-term welfare of the deer themselves as for environmental considerations. Under the Act as it stands, therefore, the commission takes account of the welfare of the deer in exercising its specific functions.
I return to the assertion that I made both at Second Reading and in Edinburgh that welfare is implicit both within the 1959 Act and the Bill, and that the welfare considerations in the Bill have been strengthened in comparison with the 1959 Act. For instance, we are taking action on night shooting, which strengthens the welfare provisions which attach to deer in that respect.
I also disagree with my noble friend Lord Pearson of Rannoch that sustainable management, and indeed conservation, must include an element of welfare. There is no way that cruel practices could fall within the definition of sustainable management or of conservation.
The question of whether welfare should appear on the face of the Bill in a more general way was raised at various stages. As a result, I asked my officials to look at that question again to see if it is possible to incorporate the term in a general way in the Bill. However, I am advised, principally on legal grounds, not to include the term in that way, given that the Act already makes sufficient provision, wherever appropriate, for deer welfare.
The legislation is based on the proposition that deer, as wild animals, may live where and as they please, except where they are in conflict with other legitimate land uses. Where action has to be taken against deer, the legislation ensures that such action will be humane. The welfare content of the legislation is therefore already implicit and appropriate for the purpose for which the legislation was intended.
There are quite powerful legal arguments against the inclusion of the term: first, both Parliament and the courts would expect that changes to the wording of the Act signal a material change to the way things are done. It should not therefore be done for purely presentational reasons. Secondly, the inclusion of deer welfare as a general function of the commission under the revised Section 1(1) of the 1959 Act, as set out in Amendment No. 1, could be interpreted as imposing a primary duty of care on the commission to promote the welfare of deer. That may all too easily conflict with the legitimate

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pursuit of control of deer numbers for whatever reason and, as I said, it could also conflict with sporting practices.
Thirdly, if welfare were introduced into the commission's balancing duty (under the proposed Section 1(1A)), it could signal an intended shift in the balance between "human interests" and those of the deer. Finally, we have to be sure that the term "welfare" could not be interpreted so as to prevent the commission properly carrying out its statutory functions in relation to control of deer which are threatening the land use and other interests which the legislation aims to protect.
While I sympathise with the wishes of those who asked that deer welfare be included on the face of the Bill, and I will give the matter further consideration, I must at the moment caution against such an approach because of the warnings I received from parliamentary draftsmen and other legal experts. I believe that there may well be other methods of control that, within a period of eight to 10 years, could become realistic and practical. I have been looking recently into the different methods of control which should become possible for grey squirrels, for instance, and for grey seals. In both those areas of work, it is felt that contraceptive control may be only eight years away. It may not be unrealistic, therefore, to assume that alternative approaches to rifle shooting will be available for controlling deer within 10 years. If welfare is in any way interpreted as the avoidance of pain, there might be an insistence that rifle shooting is replaced by other methods of control.
I should like to add one brief comment on the definition of welfare suggested by the noble Lord in Clause 85, where he suggests that it would involve the taking or killing of old or unhealthy animals. I am well aware that on many stalking estates a high priority is also placed on taking animals which may be young and healthy but which may be called "switches" as I know them—they have single spiked antlers which can cause considerable damage during the rut. Any attempt to define welfare could lead to problems at a later stage. I am also aware that some environmental and animal conservation groups are not convinced that, if you are properly managing any number of animals, you should necessarily only take the old and the unhealthy. It may be necessary to take a wide spectrum across a certain colony of animals for very sound conservation reasons.
I am determined that welfare is essential to the Bill. I am determined that the way in which we handle Clause 1 and the duties imposed in terms of conservation, control and sustainable management and the way we handle other areas of the Bill such as night shooting have welfare at their heart. I am determined that we deliver what all noble Lords who have spoken to this amendment want. At the moment, while officials continue to look at the request that we try to put welfare as a general provision on to the face of the Bill, I counsel caution. There are too many dangers if we draft welfare incorrectly. It is a high risk strategy. Much is to be gained by ensuring that the detail of the Bill implies or denotes welfare, but we can lose a great deal if we get the general definition wrong.
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One of the primary definitions of welfare which may come to the fore in later years could be the right to life. That could have unfortunate consequences on traditional methods of deer control. The central point, however, is that I want the Bill to achieve everything that those who support the amendment want the Bill to achieve, but my concern is how we achieve it on the face of the Bill. I do not want the Bill to become bad legislation through bad drafting.
Lord Pearson of Rannoch: I am grateful to all noble Lords who have spoken, every one of whom has supported the amendment with the unfortunate exception of my noble friend the Minister. The noble Lord, Lord Carmichael, asked about the definition of the carrying capacity of a deer range as regards the national heritage or whatever other management objective there might be. He asked who decides—and that is a very good question. The intention of the Bill is that it should be predominantly the new deer commission which would decide that, no doubt taking advice from Scottish Natural Heritage and in collaboration with the deer forest or the deer management group concerned. It is absolutely clear that the new commission will be the lead body. It may be that in a certain part of Scotland there will be a requirement to regenerate a lot of trees and everyone will agree with that and it will happen, and in another part of Scotland it may be different. I agree that I cannot answer the question and I agree that the amendment is not perfectly worded. That goes some way towards answering the noble Lord's question.
When we come to the comments of my noble friend the Minister—and I am grateful for the ray of pallid light that he threw out that he might be able to look at this matter again—I cannot accept that "welfare" is necessarily part of sustainable management or "conservation". I would have to point out that the definition of those two expressions is not to be found in Clause 9 of the Bill. Perhaps it would be helpful if we could make sure that the expression "conservation" were to be found in Clause 9 and that it included the concept of welfare. I feel that the word "conservation" is likely to lend itself to welfare more than "sustainable management", which may mean an awful lot of different things to different people. Whatever else one can say about the red deer in the Highlands of Scotland at the moment, they are certainly sustainable—perhaps too sustainable.
My noble friend says that welfare aspects have been strengthened in the Bill. We will come to some of those later. I am grateful to notice that the Government have tabled an amendment insisting that there will at least be a close season for female deer. My noble friend says that the commission will take account of this matter. If that is so, why should it not be on the face of the Bill? My noble friend also says that the legislation ensures—or will ensure; I am not quite sure what he said—that heavy culling, were it to be necessary, would be humane.
I have to point out to my noble friend, as we discussed in Edinburgh, that even the guidelines of the Red Deer Commission allow for animals to be shot at considerable distance, sometimes moving, and there is

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quite a paragraph in there about polishing off orphaned calves. This is not a scenario that encourages one to think that we are necessarily looking at the humane killing of wild animals, so I have to put a straight question to my noble friend. Even including the sporting interest in deer, can he envisage deer management including the use of helicopters to drive wild deer into corrals, of whatever size, for effective slaughter? If he can then I personally object to it, and I would not find that a practice which goes with the welfare of deer.
As to contraception—this eventually leading to shooting being banned—that seems to me such a long way off that if it does happen I have no doubt that shooting may be banned anyway. We need not look so far into the future with this Bill that we have to go down paths of that kind.
My noble friend then went on to mention herd management, saying that the amendment talks of the removing of old and unhealthy animals. I am happy to say that it also says,
"for the purposes of reducing the herd to a number which does not exceed the capacity of their normal range".
I would agree with my noble friend when he mentions a "switch", a switch being a stag which has no points on its horns. If you have a number of switches it is a sure sign that there are too many deer for the carrying capacity in question.
For the purposes of reducing the deer herd, which we all accept, I cannot see why this word should not be on the face of the Bill. The contraceptive argument is a red herring and I suspect that if welfare does come to mean the right to life and shooting is banned, it will do very much more harm to the deer than the good which it may be intended to do.
4 p.m.
Lord Glenarthur: Before my noble friend, if he is going to do so, withdraws the amendment, I wonder if I may press my noble friend Lord Lindsay a little further. He seemed to indicate that, while he accepted the concept, there were serious difficulties about the legal position. He also said that the Deer Commission for Scotland will take account of it anyway, and that it could conflict with the control of deer numbers. He also indicated that he would try to find a form of words which would somehow match the concerns which have been expressed. Can he elaborate a little more and give some indication—because presumably it has been thought about—of what terms it might be possible to develop?
Lord Pearson of Rannoch: Before my noble friend replies, will he also address the question I put to him? Does he envisage that the Bill as drafted would allow the use of helicopters to drive wild deer into corrals for effective slaughter? I know we come to it in later amendments regarding vehicles but we ought to start talking about this issue under the heading of welfare.
The Earl of Lindsay: Regarding the point raised by my noble friend Lord Glenarthur, I can say that I have instructed officials to find a form of words which reflects the wishes of many Members at Second
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Reading, the evidence taken at the Select Committee and what is said in the Committee today. When we were preparing for today, there was no form of words which parliamentary draftsmen felt were safe to put forward. But the instruction to his officials from the Minister, who wants to achieve what everyone here wants to achieve, is that we should try to find that form of words. However, I must warn Members of the Committee that the form of words may carry some degree of risk. I hope that brings some reassurance to my noble friend Lord Glenarthur.
My noble friend Lord Pearson of Rannoch asked about helicopters. Helicopters could be used only with the specific authorisation of the deer commission and in compliance with the code of practice which will be drawn up by the deer commission. Welfare will be a central plank of that code of practice. So welfare could not be excluded or ignored in the use of helicopters.
I would just add for the enlightenment of the Committee that the Deer (Scotland) Act 1959 already provides a higher degree of protection for the welfare of deer than the new Wild Mammals (Protection) Act, which has just come into law. I am drawing a comparison here between the 1959 Act and the latest 1996 Act. When the new Bill hopefully passes into legislation, with its increased welfare elements, it will draw yet further ahead of the Wild Mammals (Protection) Act in terms of the welfare it affords wild deer.
Lord Pearson of Rannoch: I am grateful to my noble friend for that explanation, which will bear some examination over the next week or so. I am not sure I was listening as closely as I should have been to what the Lord Chairman said at the start of the proceedings. I believe it is in order for me to withdraw the amendment unless I am confident that there is unanimity in its favour. I do not think I can rely on that unanimity at the moment from my noble friend the Minister. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Pearson of Rannoch Lord Pearson of Rannoch moved Amendment No. 2:
Page 1, line 22, leave out from ("to") to end of line 23 and insert ("have regard to").
The noble Lord said: This is grouped with Amendment No.3 to which I shall also speak. The purpose of Amendment No.2 is simply to ask my noble friend the Minister to give us some explanation as to the meaning of the expression:
"to take such account as may be appropriate in the circumstances"
when it is the duty of the commission to consider the three categories of interest which come within this clause: the size and density of the deer population and its impact on the natural heritage; the needs of agriculture and forestry; and the interests of owners and occupiers of land.
I have been advised that legally the expression
"to take such account as may be appropriate in the circumstances"

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is just about as weak as you can get and I tabled the amendment, which is of a probing nature, to suggest that instead of those words, the words "have regard to" might have more force on the face of the Bill.
Amendment No.3 suggests reversing the batting order of the three interests. I notice that under the Bill as drafted, the new boy of the Bill—if I may put it that way—namely:
"the size and density of the deer population and its impact on the natural heritage"
has been elevated to the No. 1 slot. The needs of agriculture and forestry remain in the middle and
"the interests of owners and occupiers of land"
go down to the bottom. I wanted to ask my noble friend if there was any legal significance in that. I feel that the needs of agriculture and forestry should come first, as they have done for many years now; then the interests of owners and occupiers of land, who have to make this thing work, if it is to work without all the ghastly threats that hide in the background of this Bill, and I should have thought that the new interest could come at the end. But they are both probing amendments to elicit some comment from my noble friend.
The Earl of Lindsay: These proposed amendments have no significant effect on the working of the legislation and the second amendment is purely presentational. The ordering of the items has no significance in legal terms in respect of their importance.
Substituting "have regard to" in Amendment No. 2 for the current form of words is a slightly stronger version, but it does not bind the commission to do more than consider the fact as mentioned. The terminology in the Bill more accurately reflects the fact that not all factors will be relevant in every case.
Viscount Astor: Before my noble friend replies, perhaps I could ask my noble friend the Minister a question.
I believe that in framing legislation we are trying in this Committee, which is a revising chamber, to make legislation as simple as possible, and to use as few words as possible in a Bill, so that there is less to argue about.
One of the difficulties with the Bill as it stands is that we have this rather bizarre wording:
"take such account as may be appropriate"
I put it to my noble friend that this is really what one might call departmental drafting gone haywire. It is using a complicated set of words when a simple one would do. I beg my noble friend, if he could, to look at it again and see if a simple form of words would have a much better effect so that we can all understand it.
Lord Forbes: May I make a general observation which applies to many of the amendments to Clause 1. I believe it is essential that the commission should have flexibility to carry out its task.
When speaking for the Government on the Deer (Scotland) Bill on 18 November 1958 I said that,
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"it is essential that we should not attempt to lay down detailed rules or formulae. Rather, it is surely best to confer general powers on a body so constituted as to command the confidence of all the interests concerned".—[Official Report, 18/11/58; col. 562.]
That is equally important today as it was 38 years ago.
The Earl of Lindsay: I am grateful to my noble friend Lord Forbes for his experience and wisdom on these matters, and we shall, of course, examine the point made by my noble friend Lord Astor. We always seek to keep legislation as minimally worded as possible. There is some merit in having the phrase
"to take such account as may be appropriate in the circumstances of",
rather than "have regard to", because it may be impossible to have regard to the needs of forestry, to take one of the items, where there are no trees anywhere within the area being focused on. The phraseology that we have reflects the fact that not all factors will be relevant in every case. Quite simply, there is very little legal significance to the two formulae being studied.
Lord Pearson of Rannoch: I am grateful to the Minister for his explanation which puts my mind at rest. There is no significance in the order of the three interests covered by the clause. I say to my noble friend, Lord Forbes, that one can leave things as wide as one likes. However, the composition of the commission which will be carrying out the powers will have to be examined with much greater attention. I am grateful to the Minister for his explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3 not moved.]
Lady Saltoun of Abernethy Lady Saltoun of Abernethy moved Amendment No. 4:
Page 2, line 5, leave out ("not exceeding") and insert ("being not less than nine nor more than").
The noble Lady said: At Second Reading and in the hearings before the Scottish Select Committee, a number of persons commented that there should be a minimum number of members of the commission so that it is able to represent effectively the range of interests in deer. Indeed, in answer to a question, the chairman of the Red Deer Commission indicated that at present he did not think that less than 12 members would be appropriate. This amendment is designed to ensure that future commissions have sufficient members to represent the key interests in deer and their management as stipulated in the proposed new subsection (3A) of the 1959 Act.
While it is desirable that future Secretaries of State should have flexibility to appoint a commission of fewer than 12 members if the situation warrants it, it does not seem sensible to allow the appointment of a small commission which could have the effect of unduly restricting representation of key interests. Setting a minimum size of nine for the commission will allow both flexibility of numbers and at the same time the key affected parties can be confident that their interests will be properly served on the commission.
The kind of situation which might arise is that there could be somebody whom the deer commission keenly wanted but who would not be free to join the

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commission for another year. In such circumstances it would not have to fill his place—it could keep it open. The figure of nine, if chosen, will enable the Secretary of State if he so chooses, to select three from the deer management category as proposed in the parallel government amendment, and sufficient representation from the other categories. In practice, he may well decide that a larger number is needed, but we need a guarantee that, at the very least, nine members will be appointed. I beg to move.
Lord Pearson of Rannoch: I believe this amendment is associated with Amendment No. 5, to which my name has been attached. I would just mention the matter of a quorum. It seems that the Bill, as drafted, does not require a quorum, which might mean that the chairman of the commission could sit alone and dispose of the very considerable powers that it is proposed that we grant the commission. Something along the lines of Amendment No.5 might be useful to ensure that there would not be fewer than nine members of the commission of whom six shall form a quorum, or of whom not fewer than five might form a quorum, which is what the situation may be at present. I shall be most interested to hear the Minister's views on this.
The Earl of Lindsay: I am grateful both to the noble Lady, Lady Saltoun, and to my noble friend Lord Pearson for these two amendments. I agree entirely with everything that the noble Lady said in moving Amendment No. 4 and would wish to accept that amendment without repeating the reason that she put forward. She said everything that we feel about this improvement.
With regard to Amendment No. 5, the quorum, the 1959 Act already provides that the commission should have a quorum of five or such larger number as the commission may from time to time determine and I now see no reason to change that. Consequently I am planning to delete the proposal to give the commission discretion over its quorum in Schedule 1. The response to my noble friend, Lord Pearson, is that we will consider the way he has drafted this suggestion and address the issue at Report stage.
Lady Saltoun of Abernethy: All I can do is thank the noble Earl very much for accepting my amendment.
On Question, amendment agreed to.
[Amendment No. 5 not moved.]
4.15 p.m.
Lord Pearson of Rannoch Lord Pearson of Rannoch moved Amendment No. 6:
Page 2, line 6, leave out ("as") and insert ("the majority of whom shall be persons who appear to the Secretary of State to have knowledge and experience of deer management and including persons whom").
The noble Lord said: We come now to the composition of the commission. Some of us are interested in ensuring that a larger proportion of the commission than is suggested on the face of the Bill has both knowledge and experience of deer management.
It would be helpful if the groupings list were to be altered and Amendment No. 11 in the name of my noble
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friend the Minister were taken with this amendment. In Amendment No. 11 the Government helpfully suggest that,
"at least one third [of the new commission] shall be persons having knowledge or experience of deer management".
The difference between the two amendments is that our Amendment No. 6 suggests that,
"the majority [of the Commission] shall be persons who appear to the Secretary of State to have knowledge and experience of deer management and including persons whom",
and so forth.
My noble friend's amendment goes some way to meeting our concern that those with a sporting and economic interest in the management of deer must be adequately represented in any future commission. After all, it is those people in the main who will have to make the Act work. The Bill is really about the management of deer, and it seems to me that the membership of the commission is inadequate as it stands. Even with my noble friend's suggested amendment, I fear that the clause as presently framed remains ambiguous. It is possible that as few as one of the members of the commission could represent the sporting interests in relation to deer, and if that were so I consider that it might not be enough.
This may be an unlikely scenario, but to illustrate that from current circumstances as we read the Bill, it is not inconceivable that the four persons representing deer management—under my noble friend's amendment that would be one third of the commission—could include one representing the sporting interest, with the remaining three being drawn from bodies with an interest in the management of red deer which is secondary to other objectives; for instance, natural heritage or forestry objectives. The National Trust for Scotland, the Royal Society for the Protection of Birds or Forest Enterprise may meet that description at present, all three having an interest in a relatively low deer population consistent with other prime objectives, but not sufficient for a viable sporting enterprise. That type of representation of deer management could be in addition to pure natural heritage and forestry representations under categories (iv) and (iii) as represented on the face of the Bill respectively.
It is therefore to clarify that important matter that we suggest the wording tabled by myself and other noble Lords, and I shall be grateful to hear how my noble friend the Minister's mind is moving on that point. I beg to move.
Lord Forbes: I agree that Amendment No. 11, as a composition of the commission, is an improvement. I must point out that in dealing with deer and their effect on our natural heritage, the most important consideration is to obtain the correct balance. To achieve that the Secretary of State must have sufficient discretion and flexibility to find the best people—people of considerable ability and wisdom—to become members of the commission. The commission need not be composed of experts, can always call on scientific or technical advice from specialist bodies as and when it wants to. In furthering the conservation and control of deer, which was the aim of the 1959 Act, the

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commission is bound to have, from time to time, difficulty in maintaining the right balance when carrying out its duties as laid down in Clause 1(lA)(a) bottom of page 1. Great wisdom and sound judgment by members of the commission will be vital if the objectives of the Bill are to be achieved. I hope my noble friend the Minister can give an assurance that consideration will always be given to the need to appoint people of the highest qualities and greatest wisdom to the commission as the overriding consideration.
The Earl of Lindsay: I am grateful to my noble friend Lord Pearson of Rannoch for raising this important issue, and I must express my gratitude to my noble friend Lord Forbes, who, in both his interventions to date, has stressed the importance of having the best accumulation of wisdom and the best width of experience on the deer commission however it should be composed.
I start by speaking to Amendment No. 11, which sets out what the Government have in mind. This amendment is designed to ensure that the composition of future commissions contains a significant proportion of members with knowledge or experience of deer management. Clause 1 of the Bill, as originally drafted, required the Secretary of State to appoint such numbers of members as he considers appropriate to represent the interests of persons or organisations concerned with each of the following key interests in deer; namely, deer management; agriculture (including crofting); forestry and woodland management and the natural heritage. It is essential that all of these interests have appropriate levels of representation on the commission.
I have listened carefully to suggestions that a significant level of representation of knowledge or experience of deer management is necessary on the commission to enable it to do its job properly, since the exercise of its functions, I admit, will continue to rely to a significant degree on the relationship of trust and respect it will maintain with those who manage deer on their land. At the same time, it is essential that the commission is a balanced body whose composition and mode of operation reflects all of the key interests in deer.
The various issues raised by deer in land management generally in Scotland and the conflicts that can arise because of them require the commission to have a range of knowledge and expertise in issues outwith the field of deer management alone. I consequently propose that a specific minimum proportion of persons with knowledge or experience of deer management be set, at the level of one third, which I regard as the appropriate level to ensure significant representation of deer managers, while maintaining an effective balance with other interests. We have just passed the amendment dealing with the minimum number of commissioners being nine, therefore if the Commission was as small as nine, that would mean there would be three drawn from those with direct experience and knowledge of deer management. If the commission just went up one to 10, then of course at least one third becomes four, so that is how the mathematics would work out.
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The amendment moved by my noble friend Lord Pearson of Rannoch, Amendment No. 6, would have the effect of stipulating that a majority of commissioners should have knowledge or experience of deer management. It is quite true that members of the commission need to have between them knowledge and experience of all issues relating to deer. It is true also that a significant proportion of the members need to have knowledge or experience of deer management per se, since much of its work will relate to deer management at ground level and to deer management groups.
It is, however, essential that the commission has balanced representation of all the relevant interests which are likely to arise in the pursuit of deer management, since the effectiveness of its operation as a commission will depend upon the relationship which it develops with all bodies with an interest in deer and in deer ranges. It is for that reason that Clause 1 stipulates the key areas of expertise that the commission will need among its ranks to do its job properly. I sympathise with the suspicions of my noble friend Lord Pearson of Rannoch and therefore the line which he has taken with this amendment. But I stress that the one-third minimum proportion of deer managers, or those with experience in that field, is a significant proportion. It is especially significant given the extraordinarily wide range of interests which deer management now provokes, from farming, forestry and crofting to all the different parts of the natural environment. If the balance of interests on the deer commission is reduced or in any way skewed so that it is less of a level balance across the different interests, the commission would be in danger of losing some of its credibility and legitimacy in the wider community in Scotland.
It is terribly important that the commission commands status and respect among all those who are likely to have an interest in the way in which deer are managed, and is not simply seen as the supporter of one specific interest group. The fear is that if the deer commission was to lose credibility and respect, the ability with which it could promote voluntary action involving different parties would be more difficult, and therefore the likelihood of the Clause 5 compulsory control schemes being invoked would become more likely. It is thus very important that the deer commission commands that wide respect across the community.
4.30 p.m.
Baroness Carnegy of Lour: Before my noble friend replies, perhaps I may say that, having spent a lot of my life on quangos and commissions of this sort, if such a body is carefully balanced and that balanced commission can come to a conclusion and then discuss it and sell it throughout Scotland, it is far more likely to command respect. If it is carefully balanced the discussion is much more constructive.
Let us suppose that the commission consists of the minimum number of nine, which is implied by the acceptance of the amendment of the noble Lady, Lady Saltoun, five of whom are landowners and four simply representing the other interests. If that number were all

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present or if somebody was missing from the four, it would not make for an easy or balanced discussion. Good sense comes out of a body which is balanced in the sort of way which my noble friend is suggesting. One should not be fearful, if one were a deer manager or a landowner with interest in deer, that the interest would go by default because the number of land owners or deer managers was slightly smaller. It is quite an important point and the kind of number which is being suggested is a good one.
Lord Glenarthur: I very much understand the points that my noble friend Lord Lindsay is making about flexibility and the credibility of the commission. It is important that it is not too constrained and that, at the same time, those areas which should be covered are covered adequately by the interest groups which are represented. To that extent, although I understand the point made by my noble friend Lord Pearson of Rannoch, I also share the views expressed by my noble friend Lady Carnegy. My noble friend Lord Lindsay has put down Amendment No. 11 which I find appealing. It goes a long way towards the case which my noble friend Lord Pearson has made but without over-egging it and removing some of that flexibility which might otherwise accrue or be available to the commission. I support that amendment, but not the other one.
Lord Pearson of Rannoch: I thank my noble friend the Minister and my noble friend Lady Carnegy for their interventions. I say to my noble friend Lady Carnegy that Amendment No. 6, which I am proposing, does not indicate a majority of land owners but it indicates a majority of people who appear to the Secretary of State to have knowledge and experience of deer management.
I absolutely accept the point made by my noble friend the Minister that the commission must command the widest possible respect. But I submit that there is no more important category of people whose respect it must command than those who actually manage the deer. I would say to my noble friend the Minister that under the 1959 Act as it stands the commission, which has roughly the same number of people on it, has to have two nominees of such organisations as appear to the Secretary of State to represent the sporting interests in deer. I would therefore ask my noble friend the Minister when he comes to reply whether my analysis of the amendment that he has tabled—Amendment No. 11—is correct, that it would allow there to be only one representative of the sporting interests in deer in future, and whether he feels it will be sufficient to command the respect of the people who will have to carry out this Act.
The Earl of Lindsay: I am grateful for the useful contributions that have been made by noble friends Lady Carnegy, Lord Glenarthur and Lord Pearson. I can reassure my noble friend that we have seen a very sensible way to meet the body of this concern, but perhaps not going quite to the degree he would like us to have gone to. We think that a solid and balancing proportion of those representing experience and knowledge of deer management should be there. I am advised by those who know deer management much
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better than I that there are more issues which involved deer management now than just sporting interests. The marketing of venison is an increasing interest and priority for deer management groups because that is part of the viability of the sporting tradition—the ability to sell the product and cover some of the costs in that way. We would expect the minimum of one-third on the new commission who represent primarily deer management and knowledge and experience of that skill to have sufficient knowledge of the sporting side of deer to articulate that issue well, but at the same time we would expect the other side of deer management also to be available to that minimum one-third.
Let me also point out to my noble friend that wherever you sit on that commission, whatever label it is that has justified your appointment in terms of the knowledge and experience that you bring to that commission, there is still the balancing duty imposed upon you in the commission's deliberations. Not only must the commission demonstrate that it has reached a reasonable decision on an issue, but it must also take into account the balancing duty which, for instance, would include the interests of owners and occupiers of land. Therefore, inherent in one of the balancing duties there is a very strong sporting interest as an undercurrent.
I hope that Amendment No. 11 provides the reassurance without upsetting the balance of the commission. Many of us agree that the balance is vital for the credibility and that the credibility is vital for the voluntary principle and if we start rocking the balance we will lose a lot of the very good work that has been achieved to date. In the 1959 Act, of the 12 members, two were able to represent the sporting interest; eight represented agriculture and forestry of one sort or another and two represented environmental matters. Despite what nowadays seems a very unbalanced commission, it has achieved an extraordinarily good track record of balanced decision-making. I hope that the new proposal that we have lodged today as an amendment certainly produces a more visible balance than the 1959 Act seems to enable. Therefore, given how successfully the 1959 constitution has operated, I hope that the Committee accept Amendment No. 11 and that we will have very fine prospects from the new constitution.
Viscount Astor: Before my noble friend sits down, would he not accept, and I am sure he would, that one of the reasons why the Red Deer Commission has operated so well in the past is that it has been a broad church and it has represented the interests of all those involved? All of us who have had dealings with the Red Deer Commission know what a good job it has done. One of the reasons it has done such a good job is that there has been, and I quote from the Act:
"two from nominees… to represent the sporting interest in deer;"
but there has also been
"three from nominees… to represent the interests of farmers and croftersֵ"
and,
"two from nominees … to represent the interests of hill sheep farmers."

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Therefore the Act very clearly said where these representations could come from.
I think the 1959 Act got it right and it has worked very well. The problem I have with the Minister's amendment is that it says that one-third of the persons shall have
"knowledge and experience of deer management,"
but what is knowledge and experience? We can all have either a very limited knowledge and a lot of experience, or limited experience and a lot of knowledge. That is open to interpretation and is a very difficult way to take this forward. We will have huge arguments on who represents who. Are you representing one organisation or another? The great advantage of the 1959 Act is that it brought into the Red Deer Commission all those people who represented the organisations that mattered so that when they considered problems with deer, whether it be from the crofters' or farmers' point of view, or the forestry point of view, everybody was able to represent their own interest as well as taking a general view about everything.
I put it to my noble friend that his amendment weakens this very strong aspect of the working of the Red Deer Commission. I plead with him to look at the matter again between now and the next stage of the Bill.
The Earl of Buchan: I support the Minister on Amendment No. 11. It seems to me that the discussion is becoming almost metaphysical in its detail. I believe that the success of the Red Deer Commission over the years owes a great deal to the gentleman with the long, complicated name, Gordon-Duff-Pennington. The exact number of people who represent this, that or the other probably does not matter a great deal. I support the Minister's amendment.
The Earl of Lindsay: I should like to add to the welcome contribution of the noble Earl, Lord Buchan, by saying that the new constitution of the deer commission picks up the strengths of the 1959 system but sheds some of the weaknesses and constraints to which that system led. For instance, in identifying agriculture (including crofting) we fully intend that appointments should be made from people who have knowledge or experience of hill farming. It is clearly central to achieving a successful deer commission. We therefore have the four categories identified from which appointments will be made. We hope to specify that at least one-third will come from those who have primary knowledge or experience of deer management. We are certain that the strengths, so abundant to date under the fine chairmanship of Patrick Gordon-Duff-Pennington, will continue. But the constraints which have arisen will be removed.
Lord Pearson of Rannoch: I am grateful to all who have spoken. My noble friend the Minister has not confirmed my analysis, which I put to him as a question, that under Amendment No. 11 it would be possible to have only one representative of the sporting interest in deer whereas before there were at least two. Of course, I agree with all noble Lords that the balance of the
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commission and the respect with which it is viewed will be absolutely crucial to its future activity. But I should have to point out that we are coming to Amendment No. 76 which is the Government's definition of the words "deer management" and I believe that in that amendment, which we come to next but one, the definition of "deer management" includes the management of deer for sporting purposes.
Therefore, as far as I can see, the new commission could only have one representative of that category and I am afraid that I do not think that is enough. I agree with everything that has been said about the balance needing to be right and the respect in which the new commission needs to be held. I do not believe we have it right if we only have one of those.
The Earl of Lindsay: Before my noble friend sits down, I make one more point to the Committee and that is that the vast majority of deer managers in Scotland are involved in the sporting side of deer management. We have amended the definition of "deer management" in the Bill so that it quite specifically includes the sporting element of deer management. Therefore, we are fully confident that the three or four members of the deer commission that must represent knowledge and experience of deer management will substantially articulate the needs of the sporting aspects of deer management. At the same time, if, for instance, deer marketing becomes increasingly important—and we have good reason to believe that it will be—we also would hope that the deer management category on the commission will be fully conversant on that side of deer management as well. We therefore do not necessarily want to exclude or include specific aspects of the deer management experience.
Lord Pearson of Rannoch: Under Amendment No. 6, we would not have to. We would only have to have more than half the commission:
"who appear to the Secretary of State to have knowledge and experience of deer management".
That indeed could, I have no doubt, include the marketing of venison and so on. I do not think I should take up the time of the Committee any further at this stage. I shall read with interest what my noble friend has said. I thought there was a moment where he appeared to be giving a little more encouragement than it is possible to read into the amendment as drafted. I will come back to the matter at Report stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.45 p.m.
Lady Saltoun of Abernethy Lady Saltoun of Abernethy moved Amendment No. 7:
Page 2, line 9, leave out ("to (3C)") and insert ("and (3B)").
The noble Lady said: In moving Amendment No. 7, with the leave of the Committee I should like to speak also to Amendments Nos. 8, 12, 13 and 14. In this group the important amendments are Amendments Nos. 12 and 13. Amendments Nos. 7, 8 and 14 are consequential.
These amendments are designed to ensure that the Secretary of State does consult relevant persons or organisations, and considers suggestions made to him before appointments are made to the commission. While it may make sense to move away from the current strict stipulations in Section 1 of the 1959 Act, it does nevertheless seem unfortunate that the current wording could allow appointments to be made without relevant interests having the opportunity to make suggestions to the Secretary of State. Making consultation obligatory rather than discretionary will help to ensure that the best candidates are drawn to the Secretary of State's attention before he makes his decisions. I beg to move.
The Earl of Lindsay: I am grateful to the noble Lady, Lady Saltoun, for confirming something that we were taking for granted and, for the avoidance of doubt, we will accept this amendment. In this day and age all appointments to public bodies attract interest and they should be defensible. But, more important than anything, those who are appointed should have the necessary skills and the necessary respect to do the jobs to which they have been appointed. Therefore, we very happily accept this amendment on the basis that it will involve research on proper names to be available to the Secretary of State before he makes his appointments. I am grateful to the noble Lady. Indeed, we will therefore be supporting the other amendments in this group.
Lady Saltoun of Abernethy: I am very grateful to the noble Earl for accepting the amendment. I beg to move.
On Question, amendment agreed to.
Lady Saltoun of Abernethy Lady Saltoun of Abernethy moved Amendment No. 8:
Page 2, line 11, leave out ("subsection (3C)") and insert ("subsection (3B)").
On Question, amendment agreed to.
Lord Pearson of Rannoch Lord Pearson of Rannoch moved Amendment No. 9:
Page 2, line 15, leave out ("deer management") and insert ("the sporting interest in deer").
The noble Lord said: This is a continuation of the earlier debate which we had on Amendment Nos. 6 and 11. Bearing in mind where I left the matter with my noble friend the Minister as to the number of those representing the sporting interests in deer which the Secretary of State would have a duty to appoint to the new commission, we come now to those whom he may appoint who have knowledge or experience of the following matters. The Bill as drafted states:

"(i) deer management;

(ii) agriculture (including crofting)

(iii) forestry and woodland management; and

(iv) the natural heritage".

The point of Amendment No. 9 is to substitute for the words "deer management" the words "the sporting interest in deer". The arguments I made before are pretty well exactly the same as I would apply now. If my noble
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friend were able to accept this amendment it might just level up the balance of what we discussed before in the direction in which I feel it should go. I beg to move.
Lord Glenarthur: I very much support the thinking behind this amendment. Section 1(4)(c)of the 1959 Act very starkly laid out that among those appointed to the commission should be:
"two from nominees of such organisations as appear to the Secretary of State to represent the sporting interest in deer".
The main differences here appear not only to be that the words "the sporting interest in deer" are omitted from the Bill that we are now considering, but also that the Bill does not refer in any way to the organisations which might have produced those people who would have been able to represent "the sporting interest in deer". With the substantial history within Scotland and the islands of the relevance and the importance of "the sporting interest" to the whole concept of deer conservation, this is a very substantial change indeed.
In speaking to the earlier amendment my noble friend Lord Lindsay said that he could not conceive of those being involved with deer management being other than those who had a substantial interest in or knowledge of a sporting interest in deer—or words to that effect. That was the burden of his remarks. In that case I am not quite clear how the situation cannot be turned about. In subsection (1), as has been suggested here, we should leave out "deer management" and insert "the sporting interest in deer". Those concerned will then presumably be just as much expert on deer management that way round as they would be under the way that my noble friend suggested.
I do not think this is just semantics. It is an important point. To have such a major change made from what was contained in the 1959 Act—it was certainly not looked at in the 1982 Act with which I was so closely involved—does require greater explanation, although I appreciate that my noble friend Lord Lindsay is yet to cover his Amendment No. 11 in detail, and the qualifying explanatory clause which follows under Clause 9.
Viscount Astor: I support what my noble friend Lord Glenarthur said and would like to ask my noble friend the Minister a question. On an earlier amendment he seemed to imply that the interest of deer management included something which was beyond just sporting interest—for example, the marketing of venison. I put it to my noble friend that they are the same; they cannot be exclusive. One manages a herd of deer in order to maximise the revenue and, currently, with venison prices as they are, half the value of a stag is its sporting value for someone to come and shoot it, and half its value is its venison.
Those interests have to be the same. We must not think that somehow there is a different agenda if we use the word "sport" than there is when running a herd commercially. After all, that is what we are doing in the Western Isles, for example on the Isle of Jura, where there are 5,000 deer outnumbering the population by 25 to one. Deer management provides the main employment for the island, even more than the local

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distillery which employs many people. All the estates are run for commercial reasons, along commercial lines, maximising all the incomes. I hope that it will not be thought that there can be a separation in any way of those two important points.
Lord Carmichael of Kelvingrove: I understand that Amendment No. 10 has been linked with this amendment. Is that correct?
Lord Pearson of Rannoch: Amendment No. 10 has been grouped with Amendments Nos 9 and 11, but I am not sure that it should be. I would have thought it should be taken separately.
Lady Saltoun of Abernethy: Should not Amendment No. 76 be grouped with Amendment No. 9?
The Earl of Lindsay: This may be a good moment to speak to Amendment No. 76. The introduction of the category "deer management" reflects the importance that this concept has gained in recent years since the first deer management groups were formed in the early 1970s and should help to ensure that future commissions contain persons with an active knowledge or experience of the way deer management practices are developing in Scotland as a whole. There can be no doubt that, for many purposes, in almost all respects—and I will come to the comments of my noble friend shortly—deer management and the sporting interests in deer are inextricable. That is why the definition in Clause 9, which we are amending through Amendment No. 76, makes that point beyond all doubt.
I completely agree with my noble friend Lord Astor that we cannot partition out the different parts of the whole cycle, from vermin control in the spring through to the taking and the marketing of the beast, and how one funds such an operation and markets the product. It is all one continuous cycle. My noble friend Lord Glenarthur suggested that, because of the inextricable link, whether one called it sporting interest or deer management, each would encompass the other. My modest and humble suggestion is that deer management has a generic feel to it, and it quite specifically includes all parts of the cycle involving deer management; whereas the sporting interest in deer is conceivably a little more ambiguous and could be taken by some to exclude some parts of the cycle.
So I hope that the Committee can agree to Amendment No. 76, when we come to it, but I hope that I have reassured my noble friend Lord Pearson and my noble friends Lord Glenarthur and Lord Astor, because we are aware that the vast majority of deer managers, and those involved with deer management, are very familiar or are actually involved in the sporting aspect of deer management. Just to underline what my noble friend Lord Astor said, you cannot be involved in deer management at one end and not somehow have experience of the sporting interest. Therefore we believe that our amendment will ensure that that point is taken on board.
Lord Pearson of Rannoch: Once again, I shall have to read what my noble friend the Minister has said, but I am afraid that deer management now is very much wider than the sporting interest in deer, and indeed the whole industry to which my noble friend Lord Astor referred. Deer management would include counting their droppings in a dense forest to see how many deer there might be. It might be the management of a forest for birds.
I could go on and give many examples where people could be chosen from the category of deer management without having any interest in, and indeed possibly being antagonistic to, the deer forests and the interest which supplies most of the employment and benefit in this area. I do not know whether my noble friend Lord Lindsay has covered Amendment No. 76, but I merely point out that it is a definition of deer management, which includes the sporting interest in deer. The best thing that can be done at the moment is for me to beg leave to withdraw Amendment No. 9 because I spoke to Amendment No. 11 before, did I not?—or am I getting in a muddle now? I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5 p.m.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 10:
Page 2, line 18, at end insert—
("(v) local government").
The noble Lord said: This amendment will be not as well discussed or received as perhaps some of the other amendments. This is an amendment on which, frankly, I want to find out the Minister's views on the whole question of the appointments. The amendment would include a representative of local government on the commission. Although at first sight it may not be thought essential that the deer commission should include anyone from the world of local government, there is an expertise in local government and, on reflection, I believe there is a strong case for one councillor, or councillors, to be put on this commission. They are democratically elected people and I believe the protection of the environment in general, and natural heritage in particular, is a task which has been carried out for a very long time by local government. Therefore, I believe it would be right and proper if at least one of the commission was drawn from the local authority sector at elected member level to represent those interests.
The second and perhaps more compelling reason for wanting an elected representative from local government to be on the commission is that these days we have an ever-increasing number of quangos. Councils and councillors are elected and therefore they have some democratic credibility. To include persons from such bodies would at least ensure that the views of ordinary persons in the street could be considered during the deliberations of the commission.
At the very least, people who are elected are answerable to some group of the electors. I know that I am listening here to people who really know a great

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deal about their subject, but one of the points we have to accept—I have known about it for a long time and appreciate it even more now—is that deer forests and the whole question of deer are not small matters. A deer forest is not like a farm. It may cover hundreds and hundreds of acres, taking in public roads, public highways and public streams, and therefore local people should have someone they can complain to who is accountable to them. They may have a very nice landlord or they may have a very difficult landlord. In the short 10 years I have been in this House I have met both types of landlord. Some are very malleable and others are not. Indeed, if a child stepped across the verge of some of the landlords I have known, they would be very annoyed.
There must be a representative who people can go to and feel they have a right to go to, not cap in hand, not begging and saying, "We want to know why the deer keeping running across our roads", or whatever. One would get co-operation from a councillor in these circumstances. He would accept that the people who are deer managers or the owners know a great deal more about the actual subject of deer itself but not perhaps enough about the point at which the public and the deer interests meet. It is very difficult.
The noble Baroness, Lady Carnegy, spoke about the balance of quangos. There is no balance in quangos. We know how the quangos are made up. We have had years and years of them. We know that they are picked to get the results that the Minister wishes to get, with probably whichever group is in power. I feel that the Minister would make himself much more popular and perhaps make the whole question of the new deer commission much more acceptable if there were some evidence that there were people who were representative and meant something in the community—not because of their birth and not because of their wealth.
I am presently reading an interesting book about who owns Scotland. It sets out the situation we have now where if someone makes an awful lot of money in South African gold, he can buy a country estate and then become a very important man in the community. He may not have had any interest before. But a local councillor must have a base in the area. He must be there all the time in one form or another. I beg the Minister to give this a little more thought.
Lord Glenarthur: I have listened with interest to the noble Lord, Lord Carmichael. I am bound to say that I do not find it nearly so easy to accept the suggestion as perhaps he hoped I might from where I sit and from my own experience of this matter. The fact is that those who under the 1959 Act should be appointed to the commission follow a very set pattern of interest specific to the subject matter which is likely to be encompassed.
While I can understand that it may be appropriate to widen the group a little to include, for example, someone who represents a local authority and has an interest, therefore, in the roads or some other issue, it is a point which could be so stretched as to involve many other interests that it would go much wider than any
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concept that has hitherto been considered in relation to the Red Deer Commission or the Deer Commission for Scotland under its new name.
The other point the noble Lord made was that somehow—I think I quote him correctly—elected people are answerable in some respect. I hope the noble Lord will accept that the Red Deer Commission is indeed answerable. If he looks at Section 3(2) of the 1959 Act he will see that the commission makes an annual report to the Secretary of State. It exercises its functions under the Act and lays a copy of the report before each House of Parliament. The point about answerability is already well covered by the Red Deer Commission under its existing responsibilities.
The Earl of Mar and Kellie: I should like to support the amendment moved by the noble Lord, Lord Carmichael. It is certainly true that wild deer range over local authority areas. They affect local people and form part of the local economy. I believe it is very important that the commissioners should have a knowledge of the context in which the future Deer Commission for Scotland will operate.
In some respects I would possibly prefer the phrase "public administration" to "local government" because that probably is a wider definition ensuring that people understand the context in which they will work.
My next point is aimed at the noble Viscount, Lord Astor, who unfortunately is not in his place at the moment. I am sorry to return to this but I feel I must. The point of the Select Committee going to Scotland to take evidence was to demonstrate the relevance of the Westminster Parliament to the people of Scotland and to try to counter the feelings of disaffection. The point I wish to make is that the Select Committee gained credibility in Scotland because it was predominantly made up of Scottish domiciled Members of the House.
Lady Saltoun of Abernethy: I have one difficulty with this amendment. If you have on the commission one councillor, say perhaps from Invernesshire, then Aberdeenshire, Banffshire, Argyleshire, Perthshire or Angus will say "Why Invernesshire? Why not us?". Unless you have a commission consisting entirely of local councillors, I can foresee nothing but trouble.
As to the comments of the noble Earl, Lord Mar and Kellie, on the composition of the Select Committee in Edinburgh, I must say to him that I do not think the people of Scotland took a blind bit of notice. I never saw more than two people in the public gallery the whole time we were sitting and mostly there was nobody there.
The Earl of Lindsay: I am grateful to the noble Lord, Lord Carmichael, for raising what I thought would be a short and simple amendment which could be dealt with in a couple of minutes, although he indulged in some histrionics as regards the other matter. He claims that anything that smacks of a Quango is unacceptable, but he has completely lost sight of the new rules and procedures and codes of practice which are now abided by in the appointment of members to non-departmental public bodies. If the noble Lord says he dislikes

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Quangos and political appointments, why on earth is he proposing a constitutional future for Scotland when nearly one half of the Scottish parliament would be political appointees? They would be party placements. Why he should be so angry about the way in which the new deer commission might be appointed, and yet is happy to have Scotland governed on a day-to-day basis by a body that is largely composed of political appointments, I cannot understand.
The implication of his remarks is that there was some degree of unacceptability about the deer commission at the moment, and I would take issue with that. I believe the deer commission under its current constitution has earned very high respect from many people. It has had a very good record and is widely admired for that, and we fully intend that it should continue thus.
The noble Lord, though, points up the importance of acceptability generally, and behind much of our Clause 1 amendments to the 1959 Act is the hope that the commission, through its composition, can appeal to a broad church of people and can command respect across many different interests. This is part of the logic behind the amendments that we are making. Indeed, it is not impossible that a councillor or community representative, or indeed as the noble Earl, Lord Mar and Kellie, suggested, a public servant of some sort might well be a candidate for appointment to the commission. That is not an unlikely scenario.
More important, perhaps, is that the deer commission has already made great strides towards working with the local community in the areas where deer management is an issue, and I suspect that as the years go by its efforts to work with local people will be redoubled—they certainly will not be lessened.
My noble friend Lord Glenarthur correctly pointed out that there is accountability already written into the 1959 Act, and indeed if the Secretary of State is responsible for any inefficiency or performance that the deer commission achieves which is questionable or controversial, it is something which the Secretary of State must answer for. If for some reason someone wants to take issue with the deer commission, but he is unable to feed the strength of his feelings through deer management groups or through commissioners, he can get directly to the Secretary of State through MPs and ask him to account for the performance of the deer commission.
I have one further point, which is the point raised by the noble Lady, Lady Saltoun. She in a way touched on the red deer counties and areas of Scotland; but the new deer commission will stretch from Berwickshire to Stornoway and from Wigtown way up to Thurso. It will deal with all species of deer in Scotland. The problem is not only as bad as it is painted, but I believe it to be very much worse if one is attempting to address issues which pertain to roe deer in the Borders. I hope the noble Lord is partly reassured by the fact that the deer commission will be picking up a tremendous reputation from the Red Deer Commission for consultation and
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communication with local people and that what it has done to date is merely a springboard for the yet greater lines of communication that it will build in the future.
Lord Carmichael of Kelvingrove: I am grateful to the Minister for his courtesy in replying to me. I wish to raise a number of points. The annual report is a way of people making representations. We know that annual reports come in here regularly, but unless some outisde body is particularly interested or has the time to debate it, it is not a very effective way of communicating with the Secretary of State or any Minister. The Minister will be well aware of that from his own field.
Does the spread of representation—or the spread of the area from Berwick to the Orkneys—mean that there will be any regional selection of the members of the Red Deer Commission or of the subcommittees of the Red Deer Commission? I believe that a councilor—or if CoSLA itself had a representative on the commission—that person would be approachable by anyone in Scotland; whereas, if the Minister is right, the members will be fairly thinly spread and people will not know who to contact in different parts of the country.
An approach to a Member of Parliament falls into the same category as annual reports. It has to be something pretty important, or there will be a day's debate once every two or three years upon an annual report from one quango or another. I did not really expect to get a great deal from the Minister, but I did feel that I should raise the matter. I am not decrying the existing Red Deer Commission. I know it has done a great job and the gentleman who is very involved with it has been extremely helpful to us. (I suggested that he be given a knighthood; he has a very long name which I cannot remember).
I hope that, based on that experience, we can move forward. It gives us another chance to have a break in the existing system and to put at least one local government representative on the commission. I believe that CoSLA would be the perfect body.
5.15 p.m.
Baroness Carnegy of Lour: The noble Lord is absolutely right that the deer commission must keep in close contact with local government when local government issues arise. That is important on the planning side, as well as on the road side, and possibly also environmental health.
When one thinks of how local government will be comprised after 1st April with so many councils, one sees how difficult it will be to have a representative on the commission appointed by the Secretary of State who can speak for local government. The commission will not have representatives appointed. If it were the kind of body which consisted of representatives, one might suggest that one of the representatives could be from local government.
I see that in their submission the Convention of Scottish Local Authorities suggested that a member should be drawn from the local authority sector—perhaps it had in mind a planning officer or councillor. It does not sit very easily with the way the thing is

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structured. I wonder if my noble friend the Minister could make very sure if this matter is raised again—or perhaps now—that there really is a requirement to consult with local government when local government issues arise, because it will be important and the commission must not get carried away and think that it does not have to pay any attention to planning or whatever it is. I am sure the present Red Deer Commission does that very well. I am not familiar exactly with the way it works, but I do not believe that this should he completely neglected as an issue, although I do not believe this particular approach, in view of the new structure of local government and the way in which the deer commission is going to be appointed, is the right approach.
Lord Carmichael of Kelvingrove: All I would say to the noble Baroness, Lady Carnegy, is that we did not want this new type of local government. We believe this new type of local government is a disaster and would have been much better left as it was. Perhaps there are ways of improving it, but not as drastically as this. However, I have raised the question with the Minister and I would be only too happy to let him finish.
The Earl of Lindsay: Before the noble Lord withdraws his amendment, very quickly I will reassure my noble friend Lady Carnegy that there is already extensive dialogue between local government, local authorities and the deer commission on any matter that appears before the deer commission. This obviously has a local authority angle to it, so there is precedent there which will continue to be operated.
The second point relates to the regions. I would just remind the Committee that two years ago the Red Deer Commission set up an office in Stirling to establish an administration which was quite clearly more Scotland-wide than it had been up to that point, and it foreshadowed the fact that the Bill now applies to all species of deer in Scotland. We hope that, for instance, those in the Borders can feel that the deer commission is an accessible body through its office in Stirling, rather than having to go way further north to see the commission in its own offices. So we are conscious of the issues which the noble Lord has raised.
Lord Carmichael of Kelvingrove: Having heard the Minister and the other comments from members of the Committee, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 11:
Page 2, line 23, at end insert ("; and, of the persons so appointed, at least one third shall be persons having knowledge or experience of deer management.").
The noble Earl said: I spoke to this when I spoke to Amendment No. 6. I beg to move.
The Deputy Chairman of Committees (Lord Lyell): Does the noble Lord wish to dissent?
Lord Pearson of Rannoch: I am afraid I do, because I am not sure that the issue of the matters covered in Amendment No. 6 have yet been resolved and, if we
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accept Amendment No. 11, then we have no way of returning to Amendment No. 6 in future. The grouping was in fact confusing on this but I did actually speak to Amendment No. 11 with Amendment No. 6, and I do not think I could agree to Amendment No. 11.
The Deputy Chairman of Committees: I understand that Amendment No. 6 was withdrawn. The groupings are, of course, a matter for the usual channels.
Lord Pearson of Rannoch: As I understand it, if anyone dissents we do not have Divisions here. That is what was stated for Amendment No. 1 and I understand that those are the rules of the Moses Room. I beg the Committee's pardon, I have never done this before.
The Deputy Chairman of Committees: I understand that to be the case, but before I finally put the question perhaps the Minister wishes to say something? I understand that to be the procedure, but I am sure that if the noble Lord wished to divide the Committee a procedure could be found, but I am in the hands of the Committee.
The Earl of Lindsay: As I understand it, my noble friend Lord Pearson in withdrawing Amendment No. 6 is able to return to Amendment No. 6 at Report stage. Therefore, if he is content with my Amendment No. 11 that does not preclude his return to Amendment No. 6 at the next stage of the Bill.
Lord Pearson of Rannoch: I am most grateful to my noble friend the Minister. I apologise for being confused. I have no objection to Amendment No. 11.
On Question, amendment agreed to.
Lady Saltoun of Abernethy Lady Saltoun of Abernethy moved Amendments Nos. 12 to 14:
Page 2, line 25, leave out ("may") and insert ("shall—
( )").
Page 2, line 27, at end insert ("; and
( ) consider any such suggestions.").
Page 2, leave out lines 28 to 31.
The noble Lady said: I have already spoken to Amendments Nos. 12, 13 and 14. I beg to move.
On Question, amendments agreed to.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 15:
Page 2, line 31, at end insert—
("(3D) New appointments under the terms of this section shall be made at the time of its enactment.").
The noble Lord said: This amendment provides for the right of removal of appointments under the old Act and for new appointments to be made from the start of the new commission's life. The present-day Bill does not create a new commission; it merely changes the name and some of the powers and duties of the old commission. Therefore, appointments recently made, that is in January 1996 for a three-year term of office, will continue in office for the whole term unless by means of this amendment the Secretary of State is required to replace them with appointments according to the new formula.
One of the most significant passages of the Bill is the proposal to change the formula of appointments in order to re-adjust the composition of the commission, and promote public confidence in this body as properly representative of the wide range of interests involved and impacted by deer.
It would be quite wrong to hobble the new commission for the first two years of its service by retaining a composition which Parliament will have agreed is inappropriate for the task. It is possible that the Minister will merely reply that a delay in new appointments is appropriate in order to secure a smooth transition. That argument should be rejected on the basis that the Bill has taken many years to prepare. It is now widely regarded as long-overdue and all of its provisions should, I believe, be enacted as soon as possible. I hope that the Minister will accept the spirit of this. If we are to have a new start, we should have a new start. I beg to move.
The Earl of Lindsay: I understand the spirit of the noble Lord's amendment and indeed am not unsympathetic to it. But many of the new appointments that were made towards the end of last year were made in the light of the new duties that are being increasingly thrust upon the commission. We also have a level of confidence in its chairman, Patrick Gordon-Duff-Pennington, and his colleagues, which reassures us anyway that the new challenges which the Bill is flagging up are ones which the new commission will be able to meet. I ask the noble Lord to withdraw his amendment. I understand exactly the logic that has prompted him to move it.
Lord Carmichael of Kelvingrove: I hope I did not give any slight to the present chairman of the commission and I am not criticising him in any way at all. Will the Minister insist that all the present members serve out their time before new people are appointed, or will there be an interim period after notice has been given and the new appointments made following that? If the Minister can answer me, I shall be quite happy to withdraw the amendment.
The Earl of Lindsay: The most honest answer I can give is that I shall look carefully at the issues the noble Lord has raised. We can either correspond with each other on this point before Report stage or return to it at Report stage.
Lord Carmichael of Kelvingrove: In that case, with the assurance of the Minister, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1, as amended, agreed to.
Clause 2 [Appointment of panels]:
[Amendment No. 16 not moved.]
Lord Pearson of Rannoch Lord Pearson of Rannoch moved Amendment No. 17:
Page 2, line 42, after ("fit") insert (", including persons with knowledge and experience of the interests mentioned in section (3A)(a) of this Act,").
The noble Lord said: It comes to me as something of a disappointment that the noble Lord did not wish to move Amendment No. 16 because it is rather similar to Amendment No. 17 which stands in my name. We are dealing here with the appointment of panels which the new commission will be making. The effect of Amendment No. 17 is to make sure that the commission considers,
"persons with knowledge and experience of the interests mentioned in section (3A)(a) of this Act".
In other words,
"(i) deer management"—
or the sporting interest in deer, as the case may be,
"(ii) agriculture (including crofting)
(iii) forestry and woodland management; and
(iv) the natural heritage".
I and those noble Lords who have joined me on this amendment feel it is important that the commission considers at least those categories of interest for inclusion on the new panels. That is why I personally would have supported Amendment No. 16 which would place a duty upon the commission to consider these categories of people, whereas at the moment it is left open as to whether or not it should do so. It seems to me that these panels will not be very effective if they do not have sitting on them the interests mentioned. Therefore I would have hoped that this was an amendment which my noble friend the Minister might be able to accept. I beg to move.
5.30 p.m.
Lady Saltoun of Abernethy: I, too, am sorry that the noble Lord, Lord Carmichael of Kelvingrove, did not move his Amendment No. 16, because the wording absolutely mirrors the wording in my Amendment No. 12.
The Earl of Lindsay: The amendments as described by my noble friend Lord Pearson of Rannoch and the noble Lady, Lady Saltoun, explored the area which the amendment not moved by the noble Lord, Lord Carmichael, would also have explored; namely, the method of appointment of local panels and the extent to which knowledge or experience of the key issues relevant to deer, following the prescription in Clause 1 to the commission itself, should be applied as a prescription to the local panels as well.
In practice, although currently there are no local panels in existence, should there be the need for one or more, the commission would seek to ensure that they worked effectively with all local interests in deer. To that extent, I am not convinced that the amendments are necessary.
I should also point out that there may be local issues which are priorities and which dominate, but which do not fall within the four categories set out for appointment to the commission itself in Clause 1.
I also remind the Committee that these panels are advisory panels only; they will not have executive functions delegated to them. Finally, the local panels cannot be set up without approval from the Secretary of

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State. Therefore, there is that check in the process which will ensure that reasonable and proper procedures are used in the appointment of the panel.
I do not want rigidly to set my face against these two amendments. I understand exactly the thinking of the noble Lords who have put these two amendments forward. I should, however, point out to the Committee that we are reasonably confident that should there be a need for a local panel it would work effectively with local people. While we do not think these amendments are necessary, I shall be happy to discuss this point again at the Report stage and will give the matter some more thought myself.
Lord Pearson of Rannoch: I am grateful to my noble friend, but when he comes to consider this matter between now and the Report stage, could I ask him also to give some consideration to the status of these panels with regard to Section 6 of the original Act—the section dealing with marauding deer.
I have been sent by my noble friend the Minister the notes on proposed government amendments which say that there is to be a policy amendment to repeal the delegation of powers over marauding deer. I am not quite sure how it is proposed that that should be done and I notice that in Section 2(3) of the original Act,
"The Commission may delegate to a panel appointed under"
that section, which I imagine is the same sort of panel as we are now considering,
"the functions of the Commission under section six of this Act",
that is, marauding deer,
"so far as relating to the locality of that panel, and the panel in the exercise of the functions so delegated to them shall comply with any directions given by the Commission".
I am afraid I am confused as to whether it is intended to withdraw these powers from the panel. It may be that what is happening is part of the clarification of Clause 4 to which we shall come shortly. If the panels were to be left with these powers, or anything like them, I submit that the interests mentioned in Amendment No. 17 become very important indeed.
The Earl of Lindsay: I shall try to enlighten my noble friend. Government Amendment No. 89 does indeed repeal the ability for Section 6 powers to be delegated to local panels. Thirty or more years ago we saw it as necessary that local panels, in an era of fairly slow communication, should be able to act fairly quickly in an emergency. Today the deer commission, at headquarters level, through modern communications, can choreograph and manage a situation that requires prompt response. We believe therefore that any local panel that might be set up should not have Section 6 powers delegated to it and should be an advisory panel only.
Lord Pearson of Rannoch: I am very grateful to my noble friend for that reply. I am sure we all look forward to Amendment No. 89 with confidence. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 [Particular powers of the Commission]:
Lord Glenarthur Lord Glenarthur moved Amendment No. 18:
Page 3, line 7, after ("with") insert ("the owners and occupiers of the land in question and with").
The noble Lord said: It may be convenient if I also speak to Amendment No. 20 which has been grouped with Amendment No. 18. We now turn to the particular powers of the commission—powers to issue guidance or advice, and to conduct, or collaborate in, research, inquiries and investigations in various forms, or in any experiment, trial or demonstration.
I have no difficulty with the concept of particular powers. They were present in the 1959 Act. I am concerned, however, that the owners and occupiers of the land in question somehow do not need to be part of the collaborative process. What is proposed to take place under the powers would be planned. It would not be required urgently and a great deal of thought would have gone into it beforehand. So there does not seem to be any need or urgency requiring that the owner or occupier of the land should not be brought into the process. The commission shall,
"have power to conduct or to collaborate with any person or organisation which is conducting".
But the Bill does not make clear whether that "any person" could include the owner or occupier of the land in question. It merely seems to indicate that the person conducting the research or experiment could be either an individual or an organisation. That point requires clarification. In any case, there is a question of principle involved. But obviously if this sort of work is going to be done it must take place almost certainly close to, or even on, land in which deer are to be found, and it is going to be owned by somebody, so it seems logical that they should be brought into it beyond peradventure.
Amendment No. 20 is very much on the same theme. If it is agreed that some work should be done in collaboration with organisations and individuals, as set out in paragraphs (i) and (ii),
"relating to the conservation, control or sustainable management of deer",
and that work is to be done in a way which furthers the interests of the commission, then it seems almost unreasonable to suggest that the work on property owned by individuals should not carry with it the agreement of the owners and occupiers of the land in question. So the two in a sense run together. I hope that my noble friend Lord Lindsay is clear about the point I am making.
The last element in Amendment No. 20 refers to veterinary supervision. This is in a sense a probing amendment. It seems to me that if experiments, trials or demonstrations are conducted which may be to the furtherance of the interests of deer in the broadest possible sense—my noble friend Lord Pearson touched earlier, as did others, on the question of the use of helicopters or vehicles, or the moving of deer from one place to another which could be damaging to the wellbeing of deer—they should be extremely carefully monitored by veterinary supervision. I have no reason to believe that the Red Deer Commission would not bear

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this very closely in mind but it seems to me to be essential that veterinary supervision is somehow brought into play in the Bill. I beg to move.
Lord Pearson of Rannoch: I should like briefly to support this amendment. If one reads through Clause 3 as drafted and takes what might be the heart of the matter, it seems to me inconceivable that the commission could attempt to do these things without the co-operation of the owner of the land in question. I quote as follows:
"The Commission shall have power … to conduct any experiment, trial or demonstration … relating to the … control of deer, or to any other aspect of the Commission's functions".
Who is to say that a demonstration relating to the control of deer could not involve shooting quite large numbers of them? I do not believe that should happen without at least the stalker in question, or, as the amendment says, the owner, being consulted and supported. If it were to happen like that, I would not want to be the person conducting that experiment on the ground.
The Earl of Lindsay: I hope I can reassure both my noble friends on this point. Both of them said in so many words that it was inconceivable that the powers of research or experiment available to the commission could be carried out in breach of normal private property rights. Indeed, that is the case—it is inconceivable. The powers in Clause 3 do not override in any way private rights, nor do they provide any special rights of entry. Therefore I cannot conceive circumstances where the commission's powers of research or experiment could be carried out without the necessary agreements and supervisions which are implied or sought in these amendments.
I am confident that the commission can be trusted to carry out that important function in a reasonable way and in co-operation with those who might be affected by any project. But even if, for some reason, it were to choose a course which could be construed as being less reasonable, I reiterate the important point that the powers of Clause 3 do not override in any way private rights, nor do they provide any special rights of entry.
On the veterinary point raised by my noble friend Lord Glenarthur at the end of Amendment No. 20, I hope to reassure him that any experimentational research done by the deer commission would be under the general law on experimentation, and that includes veterinary supervision. In addition to that, the Red Deer Commission, as it is at the moment, has developed an extremely constructive and useful relationship with the Lasswade Veterinary Centre which conducts research on deer welfare and deer health on behalf of the Red Deer Commission.
I am conscious that Amendment No. 19 was grouped in with Amendment No. 1 because it was spoken to in the discussion we had around Amendment No. 1. It may be useful if I just reassure the Committee that deer welfare is a priority in research and experimental matters. It is quite clearly an important issue with the Committee in regard to Clause 3 and therefore I am telling the Committee that we will consider the
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argument for specific inclusion of the word "welfare" in Clause 3 and will come back to the Committee at Report stage with our decision.
Lord Pearson of Rannoch: I am most grateful to my noble friend for agreeing to include the word "welfare", at least in the experimental and demonstrative parts of the future commission's activity. It is not perhaps for me to ask my noble friend the question, but if it is obvious that the commission will indeed respect the normal rights of property and so on, can my noble friend give any reason why these amendments should not be accepted on the face of the Bill?
5.45 p.m.
The Earl of Lindsay: It is because they simply duplicate safeguards which are already in effect, in that what Clause 3 enables the commission to do does not override any private rights or special rights of entry that are already sufficiently protected and taken into account by other general legislation.
Baroness Carnegy of Lour: I wonder whether my noble friend is right to take the official's advice absolutely straight like that? We all accept that rights of entry exist and will be observed, but when we are talking about this commission we have already talked about how it should have the confidence of the broad public in Scotland. It is important that small crofters, as well as large occupiers and farmers, should feel that the commission will not march onto their land or conduct experiments. We are not just talking about land owners here—we are talking about all sorts of owners and occupiers. I can see no reason why there should not somewhere be a slight duplication of this—just a mention somewhere. Perhaps my noble friend the Minister could look at this point. I know that he has been warned against this by those behind him, but this is very much an official point of view. We have to think about how people will see this Bill.
Lord Glenarthur: I do not want to prolong the debate, but I have much sympathy with what my noble friend Lady Carnegy of Lour said. My noble friend said that it is inconceivable that anyone would try to override existing rights—private rights, rights of entry or whatever—in order to try to conduct what is suggested in this clause. He also said that the Red Deer Commission can be trusted. I have no doubt whatever about that. However, if that is the case, and there is still concern about it, what is the difficulty in actually adding to the Bill the words that I have suggested in Amendment No. 18, that the commission should have the power to conduct or collaborate with,
"the owners and occupiers of the land in question and with",
any person or organisation? It is self-evident that it will not do any damage or make it more awkward for the commission to have to go through that particular hoop, particularly in the light of the fact that there is no time constraint on this.
I hope my noble friend can reassure me. It may be that he will have to quote chapter and verse on this and perhaps he will be able to draw on the experience of past

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instances since 1959 of particular powers being used in this way and how they have been brought into effect, or say what indeed are the over-riding private rights, rights of entry and so on, which are referred to. I hope he will be able to respond positively to that.
As to the question of veterinary supervision, I am certainly very interested to hear him say that the general laws on experimentation will apply. One of the reasons why I am sensitised to this particular area is that I piloted the Animals (Scientific Procedures) Bill through the House in 1986. Experiment, so far as animals are concerned, often generates vast interest and concern, and rightly so. I hope that my noble friend will explain a little more about the general law on experimentation in this particular field because those words seem remarkably loose.
Lord Pearson of Rannoch: Before my noble friend rises, I should remind him that very similar wording to this was included in the original Bill for Scottish Natural Heritage, except that for any experiment, trial or demonstration, we were asked to give the new Scottish Natural Heritage complete powers for development projects and schemes. I should remind my noble friend that the Government heavily lost an amendment on that. Unless he can do a little better in giving the Committee some reason why these very simple words should not be on the face of the Bill, this is one to which we may wish to return with a vengeance at the Report stage.
The Earl of Lindsay: I have seen my noble friend Lord Pearson of Rannoch return to other things with a vengeance so I am suitably warned. I want to quote legislation which goes way beyond the legislation in front of us. The best thing is if I write to those noble Lords who have spoken on this issue and I hope that it is in sufficient time so that we can discuss that letter prior to Report stage.
Lord Glenarthur: With that assurance, I am very grateful to my noble friend and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Pearson of Rannoch Lord Pearson of Rannoch moved Amendment No. 19:
Page 3, line 13, after ("the") insert ("welfare,").
The noble Lord said: My noble friend the Minister indicated that he would accept the amendment. We shall return to it at Report stage.
The Earl of Lindsay: I said that we would like to consider the amendment.
Lord Pearson of Rannoch: In that case, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Glenarthur Lord Glenarthur moved Amendment No. 20:
Page 3, line 15, at end insert ("subject to the agreement of the owner and occupier of the land in question and, where appropriate, subject to veterinary supervision").
The noble Lord said: I spoke to this amendment in connection with Amendment No. 18 on the understanding that my noble friend would be able also to explain more about the general law on experimentation perhaps by way of letter, so that the Committee understands precisely what he means by it. I am happy with that and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clause 4 [Marauding deer]:
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 21:
Page 3, line 16, at beginning insert—
("( ) Section 6 of the principal Act (power of Commission to authorise killing of deer causing damage) shall be amended in accordance with this section.").
The noble Earl said: In speaking to Amendment No. 21, I intend also to speak to a number of other minor amendments. Those are all drafting amendments which emerged from the consolidation process. I will happily give explanations of any specific amendments if they are sought, but otherwise I beg to move.
Lord Pearson of Rannoch: This appears to me to alter the introduction to Clause 4, which goes under the rubric of "Marauding deer" and is the clause which causes some of us the most worries about the Bill. Section 6 of the principal Act is of course the clause in that Act which deals with marauding deer, and I must confess that I am in a little hit of a muddle, jogging forwards and backwards with the various Acts. It may be that the wording of the Bill in front of us is the one which will take precedence. If, however, Amendment No. 21 is accepted at face value, it would alter the original Act from using the words:
"power of Commission to deal with marauding deer",
to become:
"(power of Commission to authorise killing of deer causing damage).
I must confess, therefore, that I am confused as to exactly what the amendment does. If my noble friend can assure me that it is merely a minor drafting amendment and paves the way for the new wording which is before us in the new Clause 4, then of course I am happy to accept it.
Lord Glenarthur: I very much endorse the remarks of my noble friend Lord Pearson. It would be helpful, because of the complexity of all of this, if my noble friend could briefly run through in rather more detail what it is that these particular amendments do.
Lord Pearson of Rannoch: Particularly Amendment No. 21.
The Earl of Lindsay: The catch-all, which I will give you once again, and then go on to some of the detail, is that there is no material change to the decision nor indeed the policy of any of these amendments. In fact, if it were not for the consolidation, we would not even be taking it before the Committee.

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On the point made my noble friend Lord Pearson of Rannoch, the opening to Clause 4 does not affect the operation of Clause 4, or indeed Section 6 of the 1959 Act. This is simply a drafting change. The actual triggering of the marauding deer power is done not in these first lines but where the prerequisites are set out in order that the Section 6 authorisation can then be issued by the commission.
There are other clarifying amendments.
Lord Pearson of Rannoch: I do not wish to take the time of the Committee, but I believe I have the correct version of the 1959 Act as revised in July 1982. Section 6 is described as the power of the commission to deal with marauding deer. It seems to me that this amendment proposes to change that into the power of the commission to authorise the killing of deer causing damage and that is very different. Marauding is something upon which we shall need to concentrate in some detail.
I shall not intervene again. I just want to make it absolutely clear that my noble friend and his advisors know what I am on about. If I am confused and wrong, I am quite prepared to withdraw the objection.
The Earl of Lindsay: One of the issues I should refer to is the difficulty that the word "marauding" has caused in legal terms. In fact Amendment No. 82, if I remember correctly, sought to remove that term from part of the Act. The side notes have no legal effect. I do not want to prejudge discussion on Clause 4 because I realise there are many significant issues which we want to look at within Clause 4.
Amendment No. 21 changes the introduction, because Amendment No. 35 inserts a new subsection into Section 6, and the previous version amended only subsection (1). As I said, it is a technical drafting amendment that we would not be entering into were it not for the drafting exercise and the demands made on us by the Consolidation Bill which we hope shortly to have in the pipeline.
I allude to just one other amendment which deals with terminology and the fact that the term "farm animals" is better replaced by the term "livestock" because of legal definitions that arise from the Agriculture (Miscellaneous Provisions) Act 1968. It is also desirable to clarify in the context of control agreements and control schemes that the animals against which action may be taken refers only to deer. We are simply clarifying some drafting amendments in this group of amendments.
Lord Glenarthur: I only have one very brief comment to make and that is that, having raised a particular concern at Second Reading, that Clause 4(1)(a) refers to "on any land, deer are causing" etc., I am most grateful to my noble friend for finding ways to leave out that term. He has not explained precisely why he has decided to leave it out. I can only assume that
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the representations that were made at Second Reading have been well understood by him and that he has taken them on board. I am very grateful for that.
The Earl of Lindsay: I shall probably speak to that point very briefly when I deal with Amendments Nos. 23 and 34 which come up later.
On Question, amendment agreed to.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 22:
Page 3, line 16, leave out from ("(1)") to ("there") in line 17.
On Question, amendment agreed to.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 23:
Page 3, line 20, leave out ("on any land").
The noble Earl said: In moving Amendment No. 23 I shall also cover Amendments Nos. 25, 30, 31, 32, 34, 89, 100 and 101.
Lady Saltoun of Abernethy: I beg your Lordships' pardon, but Amendment No. 25 is one of my amendments.
The Earl of Lindsay: My noble friend is correct. I shall reintroduce this by saying that I will be speaking to Amendments Nos. 23, 30, 34, 89 and 100. I apologise to the Committee for misleading it.
Amendments Nos. 23 and 24 do indeed arise from points raised by my noble friend Lord Glenarthur at Second Reading. I am grateful to him for raising those points. I hope my response is adequate to meet the concerns that he raised.
As regards Amendment No. 30, I made it clear on Second Reading that the revised power to deal with marauding deer under Section 6 of the 1959 Act, which are proposed in Clause 4 of the Bill, would be used only in emergency situations when there was a need to take urgent action to deal with deer damage. I repeated this clear intention when I appeared before the Scottish Select Committee. Nevertheless, a number of individuals and organisations have expressed the concern that the terms of the clause as drafted could, in certain circumstances, be used where there was not an emergency. In order to clarify this point I am therefore moving Amendment No. 30 which requires the commission to be satisfied that none of its other powers is adequate to deal with the situation at hand before proceeding with action under this section.
For the most part I expect the commission to proceed through agreement with deer managers using its range of advisory and authorisation powers to meet its objectives. In circumstances where there are particular, often long standing, problems, I see the commission using the flexibility offered under new Clause 5 to reach control agreements to promote effective action. Only when early action needs to he taken and no other means of bringing the situation under control are apparent will the powers under revised Section 6 be appropriate. In the last resort, emergency powers such as these are needed to ensure that deer, which belong to no one, can be effectively controlled if they are causing serious damage to public or private interests or danger to public safety which needs to be stopped. In reaching decisions

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on Amendment No. 30 and the proposals we are putting forward, the commission must have regard to its balancing duty to ensure that the interests of owners and occupiers are taken into account before decisions are made.
The revised Section 6 will retain the existing provisions that apply to the commission to request action by the person with the right to shoot deer before taking action itself and to give such notice as may be reasonable in the circumstances before action is taken on the ground. The important point is that the circumstances should be exceptional and that emergencies should be genuine; in other words, that no other power is available to the commission to respond to a particular set of exceptional circumstances. We hope our amendment makes that clear.
I shall speak to Amendments 89 and 100. When the Red Deer Commission was established in 1959 it made sense to envisage the marauding deer powers under Section 6 being delegated in certain circumstances to local panels. Local agricultural executive committees had played a role in authorising action against marauding deer before that time and it was thought that the local panels might play a similar role. In practice the commission has been able to perform the function effectively thanks to improved communications, as I explained to the Committee, and effective work locally through deer management groups. We do not any longer feel that this delegated power needs to be thrust upon local panels.
Now that the powers in Section 6 are to be extended to cover emergency threats to the natural heritage and to public safety and are expressly made appropriate only when other powers are adequate it makes sense to restrict the use of this power to the commission alone. Local panels could well play an important part as advisers to the commission, and indeed to local managers in the future.
Lord Pearson of Rannoch: I am grateful to my noble friend for that explanation, but even with the government amendment it seems that Clause 4 can still be used against deer on their normal territory; that is, when they are not marauding and not coming from other land. We shall return to this area in greater detail soon, but I remind my noble friend that in the committee in Edinburgh he said that the definition of marauding was quite important. Clause 4 cannot be triggered if the deer that are inflicting the damage are resident or established on the site. They must be marauding deer moving from another site to cause that damage.
I am not sure that the Bill, even with Amendment No. 23, fulfils the intention expressed by my noble friend in Edinburgh. We shall come to more detail on Clause 4 and the meaning of "marauding". I am not sure that we have adequately dealt with it yet.
The Earl of Lindsay: Perhaps it will help if I focus briefly on Amendment No. 23. The purpose of these linked amendments is to make it clear that authorisation to control marauding deer under Section 6 of the 1959 Act can only proceed in the specific circumstances of each individual case. They also have the effect of
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ensuring that action can be taken on whatever type of land on which deer are causing trouble where emergency action needs to be taken.
Given the nature of the new grounds for action introduced by Clause 4, it is important that the commission has the powers to take action wherever this is warranted by the circumstances of each case. It is, however, equally important that the authorisations to control marauding deer only proceed in the specific circumstances of each individual case and are bound to it so that they cannot run on beyond the circumstances of a specific case. I hope my noble friend Lord Pearson will welcome that clarification and improvement contained in Amendment No. 23 which stems from concerns expressed to us at Second Reading.
On Question, amendment agreed to.
Lord Pearson of Rannoch Lord Pearson of Rannoch moved Amendment No. 24:
Page 3, line 20, after ("land") insert ("marauding").
The noble Lord said: We now come to the specific amendments on Clause 4 regarding the expression "marauding". I, and other Members of the Committee, are very keen to pin down exactly what the word "marauding" means. Amendment No. 24 replaces the words "on any land", which have just been removed by my noble friend, with the word "marauding". Amendment No. 79, in Clause 9 of the Bill—the schedules to the Bill—attempts to give a definition of what a marauding deer is, as follows:
"'marauding deer' means deer which have left their normal range",
for the time of year in question. I would add,
"and have caused or are likely to cause damage to agricultural production or woodland, and where remedial action is required without delay and where the procedures under section 5 above would not prevent further immediate damage".
I am sure that, once again, that definition is not perfect legally, but I am far from persuaded that a definition of marauding cannot be found. A marauding deer, against which the very considerable and immediate powers of this clause can be used, must be one which is marauding. That does not mean to say that it is on its normal territory, going about its normal business—grazing the heather and so on. There must be an element of surprise that the deer arrived where it was not expected to arrive. It must have come from somewhere and go back somewhere.
In the original Act, and indeed in this Bill, the suggestion arises that those who will have to deal with marauding deer will have to follow them and kill them. That means, presumably, that they run away from where they are marauding and go back to where they came from. I am not going to the stake or indeed to the corral on the definition of the word "marauding", but I believe these amendments are important and we must make some attempt to define this area before we move onto other areas of Clause 4. I beg to move.
Lord Glenarthur: I would like briefly to support my noble friend Lord Pearson on this not least because I really believe that there is a serious issue of clarity here, particularly following my noble friend Lord Lindsay's remarks in connection with Clause 23. It seems to me

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to be absolutely crucial that this definition of precisely what marauding entails is made totally clear. At the moment, I am by far from convinced that I even understand what will be the outcome of the amendments in their totality suggested by my noble friend. Therefore, I hope that he will go some way further to satisfy my concerns.
The Earl of Lindsay: The effects of Amendments Nos. 24and 79 have been substantially explained by my noble friends Lord Pearson of Rannoch and Lord Glenarthur. I would repeat the definition that we have used of "marauding" both in Notes on Clauses and indeed by myself in earlier evidence: marauding deer are deer which are not being effectively controlled and which are on land on which they are not normally established. The need for clarity, if the term is used strategically or substantially in the Bill, called for by my noble friend Lord Glenarthur is one with which I agree, and it is the need for clarity which makes us cautious about the sort of definitions which are being suggested by my noble friend Lord Pearson.
On the difficulty about creating a legal definition of marauding deer, it is impossible to be certain about what constitutes the normal range on which deer are established, and therefore to have a clear legal prescription of where deer should and should not be. Because of my sympathy with the motives behind this amendment—it is not dissimilar to the welfare issue—I have spoken to the parliamentary draftsman. He points out that normal range to deer managers may be one thing, but that the normal range of a particular species of deer to woodland owners, crofters or farmers may be another thing, and it may be possible, if one was contesting the label "range", to produce biologists or other experts who come up with yet another definition of what should be the normal range of a wild animal. I have no quarrel with what the two noble Lords are trying to achieve in principle. My concern is that the term "normal range" is something which my experts, officials and parliamentary draftsman say is potentially terrifying because of the number of different ways in which it can be interpreted for the various different species of deer that we have in Scotland.
On the basis of the difficulty over the actual definition, I hope that my noble friend will withdraw his amendments, but it is something that we have spent a good deal of time looking into.
6.15 p.m.
Lord Pearson of Rannoch: I am grateful to my noble friend but I am not convinced that we have spent enough time looking into it. Before withdrawing the amendment, I wonder whether we may have his assurance that we can discuss this in some depth before we move to the next stage. All the powers which centre around Clause 4 come from this difficulty of the immediacy of Clause 4 and exactly how they are going to be used. If we cannot solve the problem by reaching an agreement on the meaning of the word "marauding",
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then there must be another way that we can define where we all want to be with this clause. Perhaps I may put that to my noble friend as a request.
The Earl of Lindsay: I am happy to discuss this with my noble friend before the next stage. I would also point out to him exactly where we are coming from. We are happy, away from the face of the Bill, to define "marauding deer" as those which arc not being effectively controlled and are not normally resident in the area where they exist. There may be grounds for optimism for my noble friend that somehow we can agree on what is at the heart of this. It is a matter of whether we can put a safe definition of "marauding" into the Bill and know that it is secure from counter-definitions from others.
Perhaps I may also remind the Committee that the impact of the definition and how it is interpreted are vital. This is why the amendment which I am about to move specifies that all other options and powers available to the deer commission must be unavailable or inappropriate before it can turn to the marauding power. This will help by de facto defining the circumstances in which marauding deer will be classified as such, because if through discussion with the people who have a right to shoot deer wherever they are or if through control agreements or control schemes or through the deer management groups you can solve the problem that those deer are creating, then you do not have marauding deer. You only have marauding deer and can tackle them where no other power is available to the commission. I am happy to discuss this point with my noble friend prior to the next stage.
Lord Pearson of Rannoch: I am most grateful to my noble friend. I take particular encouragement from his agreement that a marauding deer cannot be one that is normally resident where it is supposed to be marauding! With that small satisfaction, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lady Saltoun of Abernethy Lady Saltoun of Abernethy moved Amendment No. 25:
Page 3, line 21, after first ("to") insert ("enclosed").
The noble Lady said: I beg leave to speak also to Amendment No. 69. If "woodland" is not enclosed by some fence or barrier designed to keep deer out, surely they cannot be considered to be "marauding" if they get into it! As the definition of "woodland" stands at present, which I shall return to in a later amendment, and in the absence of any definition of "marauding", which we have just spoken about, "woodland" can, as I see it, mean any land on which there are just a handful of trees in possibly a square kilometre of land. The normal range of red deer is frequently over just such land.
As I understand it from the submissions of various witnesses to the Select Committee, if one plants trees, or tries to regenerate them without deer fencing, one would need to reduce the deer population to between three and five deer or less per square kilometre (400 hectares). At that level, the letting of stalking for sport

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as a commercial activity, as we know it, would be impossible with consequent loss of income from rent and venison sales and loss of capital value.
The RSPB suggested in its submission that that would not be the case but, under questioning, it admitted that its stalkers were the owners of—I think it was the solum. In the red book it says the "soul", and it certainly cannot be the "sole". I think it means the solum. The RSPB's stalkers only stalked about 15 days a season, which is very little; took one beast per outing; only paid any expenses involved, and also admitted that it did not have to make the estate pay, thanks to outside funding.
I have a nightmare vision. If woodland does not have to be enclosed, SNH can come along waving a European Communities habitats directive from Brussels, and declare a large part of what is at present a sporting estate to be a special area of conservation, where the native forest is to be regenerated without the use of politically incorrect deer fencing. Then, when the deer eat or threaten to eat the seedlings on what has hitherto been their normal feeding ground, it can demand that the commission has them massacred. What is more, to add insult to injury, it keeps the carcasses. That would be pretty hard on the wretched owner, who is left with the wages to pay, no income and an unsaleable estate. That might suit some future government of an independent Scotland bent on nationalisation of all sporting estates, because compulsory purchase would then not cost them very much. But do the Government really want to put powers into this Bill which, as I see it, could be used in that way? I do not say that they would, but it is possible that they could. I beg to move.
The Earl of Lindsay: I am grateful to the noble Lady for explaining Amendment No. 25 to us and indeed for speaking to Amendment No. 69.
The existing provision at Section 6 of the 1959 Act does not specify that the woodland should be enclosed. One can easily anticipate a situation where a particular woodland or forest is not enclosed because deer were not a problem at that time. Later, deer leave their established range, or their range under pressure moves, and enter that woodland and could potentially cause serious damage. To specify that only enclosed woodlands merit protection would be to suggest that any woodland within possible striking range of deer populations, either now or at some stage in the future, should be expected to be fenced or else risk damage, regardless of whether or not deer are a problem at present. That would be an unreasonable burden to place on the proprietors of woodlands.
It has been suggested that the commission might authorise out of season shooting to protect the natural heritage or unenclosed woodland in a manner which does not take into account neighbouring land interests. As we have already discussed, the effect of the new balancing duty introduced by Clause 1 is to ensure that such matters are taken into account when relevant as the commission exercises its powers. Consequently, the commission will not be able to issue authorisations without taking into account any impact they might have on neighbouring interests or indeed in general on the interests of owners and occupiers.
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In any case, those with experience of the way the commission exercise its functions will know that the commission's role in respect of deer management groups has been very much to stress the voluntary principle in solving potential problems and to encourage co-operation between neighbouring owners. The sustainable management of deer throughout Scotland in the manner envisaged by the Bill will be possible only if the commission can demonstrate that it is carrying out its overall responsibilities in a balanced and reasonable manner.
Amendment No. 69 is designed to restrict out of season authorisations to enclosed woodland also. New Section 33A(5) of the Bill specifically aims to allow the commission to authorise shooting to prevent damage to unenclosed woodland. The important point behind this is that unenclosed woodland—especially if it is near or within the normal range of deer—is less likely to trigger Section 6—as amended by Clause 4 of the Bill—powers. The powers will be very strictly defined and with my Amendment No. 30 will be even more closely defined. The damage must be serious; the damage must also be continuing damage. It cannot be damage that has happened or is about to happen. The other powers and procedures available to the commission must be inadequate. They must have been either tried and failed or be inappropriate to the circumstances of the case. The most likely scenario with unenclosed woodland is that one has a build up of a problem which is then subject to the control agreement that at worst could be a control order. But there is a much smaller likelihood of marauding powers being triggered for the unenclosed woodland in a way which I believe the noble Lady so fears.
Lady Saltoun of Abernethy: I am grateful to the noble Earl for that long reply. I should like to read what he has said and consider it. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
Lord Pearson of Rannoch Lord Pearson of Rannoch moved Amendment No. 26:
Page 3, leave out lines 23 and 24.
Page 7, line 18, leave out from ("land") to ("; or") in line 19.
The noble Lord said: This amendment and Amendment No. 71 with which it is grouped are designed to tease out from my noble friend the Minister the exact circumstances in which the somewhat draconian new powers of the Bill might be used to defend the natural heritage interest.
Amendment No. 84, with which those two amendments are grouped, seeks to exclude the use of helicopters for that purpose and the use of helicopters to drive deer into corrals for slaughter.
Amendment No. 26 therefore removes the words "whether directly or indirectly" deer are causing damage "to the natural heritage generally" in Clause 4, and more or less the same words from Clause 7 of the Bill, which authorises the commission to carry out certain acts. Those acts include the use of any vehicle

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"to drive deer in order to take or kill them for the purposes of deer management".
That clause then goes on specifically to say that "deer management" does not include sporting activity, so presumably it does include the large-scale slaughters to which I have referred.
Lying at the back of these amendments is the strong suspicion that these violent clauses are not really needed to protect the natural heritage at all. If deer are on what I have called their normal range, or my noble friend the Minister has described as where they are normally resident, then any damage they may be doing to the natural heritage is something which builds up over a period of years and can be dealt with by Clause 5 of the Bill, to which there are few objections.
What I am asking my noble friend to do, for the record, is to explain why the natural heritage interest is required within the emergency powers of Clause 4 to deal with marauding deer, especially when he is trying to persuade me that no-one can say what a marauding deer really is. Secondly, can he explain why the ability to drive deer—and in this case, under Clause 7, on their normal range—with helicopters into corrals to kill them for the purposes—as the Bill so euphemistically puts it—of "deer management" is included, but yet the Bill goes on specifically to exclude any sporting activity? I imagine my noble friend will confirm that that means fairly substantial culling, if "massacre" is too emotive a word, in the Bill as drafted.
Those are my worries about the natural heritage interest being included in these clauses, and my worry as to the use to which the intention to use helicopters to drive them will clearly be put if the Bill goes ahead as drafted. I beg to move.
Lord Glenarthur: My noble friend will be aware that during the passage of the Natural Heritage (Scotland) Bill there was a very great deal of concern raised that the powers that that Bill introduced, coupled with anything that might emerge on deer could have very much the effect that my noble friend Lord Pearson has described. These really are matters which go to the heart of the concerns of a great many people about the way that the powers that are being introduced in the Bill could be used. I accept that in the totality of the commission's powers, including the responsibilities of individuals, there is a sense of gradation of what can be done to try to meet the concerns which at any time could arise. However, it seems to me that what is being authorised by the Bill could go much further, and in a way which is as yet improperly defined—my noble friend has given the example of the incomplete definition of precisely what marauding deer are in this respect—than any of us really feels at all comfortable with.
There is a duty embodied in the Bill to further the conservation. Yet it seems that, in the points we are considering now, that conservation looks a little weak when it does not sit easily with the idea that, for a particular circumstance to preserve the natural heritage in the ways that are described, somewhat draconian powers can be taken. I hope that my noble friend will
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take this very seriously indeed. I have grave concerns about it and will return to the question of helicopters in due course. I shall certainly have a few things to say then. At the moment, however, I am less than assured from all I have heard so far that we have this right.
Lord Pearson of Rannoch: Before my noble friend sits down, I am not sure that we do return to helicopters. This is our chance to deal with helicopters by excluding them from the vehicles which the commission may use to drive deer for deer management purposes, which are strictly unsporting.
Lord Glenarthur: I was hoping to come to it during the definition phase—under Clause 9—which was the point I was making. I certainly do agree with my noble friend that the idea of using helicopters in this respect is highly undesirable. I also wonder—I know that my noble friend the Minister has not yet covered it in any remarks he has made—whether some consultation would no doubt be taking place to establish whether or not this is a practice which could be endorsed by those who are more immediately concerned with helicopters in this way. I suppose I ought to declare an interest as chairman of the British Helicopter Advisory Board, which is the trade association for all the helicopter operators. I have to say that I have no advice from it on the subject but I wonder whether my noble friend has sought any advice as to the use of aircraft generally. Having said that, that does not detract from the fact that I deplore the possibility that they could be used in this way.
The Earl of Lindsay: The amendment and related amendments introduced by my noble friend Lord Pearson of Rannoch cover quite a lot of very important ground. Part of his concern is perhaps whether the natural heritage itself should be sufficient reason for the deer commission to exercise its stronger powers. We have looked at this very carefully before bringing it forward in the Bill and indeed we would not have brought it to this stage without sufficient consensus and without the recommendations of the Red Deer Commission itself.
Across society, there is a general understanding now that environmental matters are of increasing importance and are likely to become even more important as the years go by. They need to be handled in a sustainable manner which does not disregard the needs and interests of other land users and other interests; for instance, owners and occupiers. At the same time, the importance of the natural heritage and environment is now seen as being as important as any other factor and therefore justifying the focus of the deer commission when it is exercising either Clause 4 or Clause 5 powers.
There could be emergencies which, if I think hard enough, I could envisage where one might want to invoke a Section 6 power for reasons of natural heritage. It could be that there is an enclosed woodland which houses some feature of the natural heritage which is an important and significant feature, and it could be flora or fauna. Into that woodland at a later date deer manage to arrive and invade that area as marauding deer in exceptional circumstances. They therefore destroy the

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survival or prospects of whatever it is that was so important in the first place. They literally cause it serious damage. I have stressed in the past, and I stress it again, that unless serious damage can be substantiated, that that is the description of events, then there is no way that Section 6 powers can be invoked for the natural heritage.
Lord Pearson of Rannoch: I am most grateful to my noble friend for giving way. Perhaps he would allow me to point out that he has just made precisely the same mistake that the Chief Executive of Scottish Natural Heritage made at our committee proceedings in Edinburgh. If my noble friend will direct himself to Clause 4, he will see that we have not objected to Clause 4 being used against marauding deer, whatever they may turn out to be, when they are causing serious damage to woodland. Clause 9 of the Bill as drafted says:
"'woodland' means land on which trees are grown, whether or not commercially, and includes any such trees and any vegetation planted or growing naturally among such trees on that land".
I take the point that the noble Earl makes. There are amendments tabled to decide whether the woodland should be enclosed or unenclosed; whether the trees should have been planted; whether they should be mature woodlands or groups of mature trees and all the rest of it. The definition of "woodland" appears to be much too widely drafted to some of us and would, in fact, enable much more land than is intended to be covered by the Bill. But we are coming back to that.
Clause 4 as drafted allows marauding deer to be dealt with when they are,
"causing serious damage to woodland, to agricultural production (including any crops or foodstuffs)".
It then goes on to talk about injury to what no doubt would become livestock and so forth, even when they are a danger to the public. My objection to this clause is the inclusion of the expression that those deer should be dealt with when they are causing damage,
"whether directly or indirectly, to the natural heritage generally".
That is the point to which I ask my noble friend to address himself.
The Earl of Lindsay: I stress the word "serious" as an adjective to the word "damage". For decades, if not for centuries, deer in Scotland have caused a level of damage just to ensure their own survival, but Clause 4 talks specifically about serious damage to woodland. That is of greater importance in terms of severity than merely talking about damage. It may not be woodland we are talking about. I am sure the noble Lord accepts that it could he open moor or other types of vegetation of natural heritage significance. Where a significant aspect or feature of the natural heritage is concerned, the ability to act quickly in cases of serious damage is of vital importance, but if it is merely damage and not serious damage, then quite properly Section 6 should not be available to the commission. There is a very important distinction here. I hope the Committee accepts that we must have this ability to act in emergency situations where the natural heritage is under threat, not simply because there is a continuing level of damage which is not categorised as serious but because there is a serious threat and the damage itself would be serious.
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The noble Lord, Lord Pearson, spoke to two other amendments. If I understood my noble friend correctly, he seeks to remove natural heritage as a ground for authorising out of season shooting under the proposed Section 33A(5), as proposed by Clause 7. For the same reason that I would defend the ability to authorise a Clause 6 power to protect the natural heritage against serious damage, I would also defend the ability of the commission to authorise out of season shooting to defend the natural heritage against serious damage.
My noble friend Lord Pearson also spoke to Amendment No. 84. I would point out that the definition was taken from the English Deer Act 1991, and it was the intention of the Bill to allow the use of vehicles to move deer subject to permission, authorisation and a code of practice. We have thought the matter through very carefully and will continue to look at the whole subject from all angles. There is sufficient concern, and it is a sufficiently provocative subject, that we should not resort to a closed mind. We will continue to keep an open mind.
However, our fundamental belief, which has come to us through advice from the Red Deer Commission, is that if legislation is only available to a government to revise the powers of the deer commission every two to three decades it is important to take a reasonably long-term view as to what powers and provisions may be needed in the medium term. It has been anticipated by the commission itself in discussions with us that deer on difficult terrain could be subject to very fast rising numbers and that the only way to remove that deer could be the use of some vehicle, be it airborne or a land vehicle. That would be the only sensible way to manage the deer over that ground.
We have made it quite clear that there is to be no sporting dimension to such movement of beasts. It may be that, both for welfare reasons, if there are too many deer on that particular range, or indeed for natural heritage reasons, deer might have to be managed like that. The deer commission would have to consider and authorise each case specifically, and the code of practice which is still to be worked up into its final form would be imposed upon any such exercise. I can reassure the Committee that the use of helicopters in deer management in Scotland will be discussed again in Committee, and again on Report. I can further assure the Committee that I will continue to discuss it with officials between Committee and Report stages. We are keeping an active mind on this.
6.45 p.m.
Baroness Carnegy of Lour: Before my noble friend Lord Pearson replies, on the question of deleting natural heritage in this context, if you asked people in Scotland generally whether they would agree that the deer commission should not have power in an emergency to do something quickly about serious damage to some aspect of the heritage by deer, they would ask what was the point of having a deer commission. I really do think that. I am not talking about helicopters at this moment. I can understand that my noble friend may have fears

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about the effect of the Bill on the ground—have to look at that—but that must stay somewhere in this clause.
Lord Pearson of Rannoch: I am grateful to my noble friend and to my noble friend the Minister.
To my noble friend Lady Carnegy I would say that we accept that the deer commission requires emergency powers to deal with marauding deer. The question posed by Amendment No. 26 is whether the natural heritage can be the subject of such emergency action. The natural heritage lasts over a very long period of time and it may be that deer are moving into an area and threatening a rare species of plant, or some montagne environment. But if we allow marauding deer to be dealt with in a woodland—even vaguely within the definition of woodland—and everything that goes on in a woodland within this Bill and all the other categories for which marauding deer can be dealt with—then you are only left with the open hills for the use to which the natural heritage interests might be put. It is that which I am trying to protect.
I have to say to my noble friend that I take no comfort from his statement that the damage has to be serious. I imagine that the difference between damage and serious damage must be somewhat in the eye of the beholder. The beholder, on this occasion, will be the commission. If my noble friend can tell me what the difference between damage to the natural heritage on the open hill, not in the woodland, and serious damage to the natural heritage is likely to be, then we might all begin to understand what this clause could be about. Until that can be done, I view it with the very gravest suspicion.
Finally, I am encouraged that my noble friend is prepared to have another look at helicopters, because helicopters are not any good at driving deer in dense plantations; the deer simply turn round and go back. You cannot drive deer out of the modern forestry plantation with a helicopter. I have tried it and it cannot be done. Through the amendment we are trying to deal with the use of helicopters on the open hill under the excuse of the natural heritage to drive deer to their painful destruction. I regret to say that my noble friend has not comforted me on this yet and I hope we can continue to discuss it. If I have that assurance, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Lindsay The Earl of Lindsay moved Amendments Nos. 27 to 29:
Page 3, line 25, leave out ("farm animals") and insert ("livestock").
Page 3, line 26, leave out ("those animals") and insert ("any such livestock").
Page 3, line 29, leave out ("and").
The noble Earl said: I spoke to Amendment No. 27 when moving Amendment No. 21 and I also spoke to Amendments Nos. 28 and 29. I beg to move.
On Question, amendments agreed to.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 30:
Page 3, line 31, at end insert ("; and
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( ) that none of their other powers is adequate to deal with the situation,").
The noble Earl said: I spoke to Amendment No. 30 when we moved Amendment No. 23. This is the crucial amendment that defines when the Section 6 powers can be used as regards marauding deer, and it defines the fact that it must be a real emergency. However, I spoke to this earlier and therefore I beg to move.
On Question, amendment agreed to.
Lord Pearson of Rannoch Lord Pearson of Rannoch moved Amendment No. 31
Page 3, line 31, at end insert—
("(c) that it is impractical for reasons of public safety or otherwise to kill the deer on the land where such damage, injury, danger or potential danger is caused,").
The noble Lord said: This is an amendment to page 3 line 31 of the Bill, which suggests that it might be impractical to move deer away from the area where they are causing damage, and, if that is so, they should be dealt with where they are. It seems to me a perfectly reasonable little amendment and I wonder whether my noble friend can view it favourably.
Lord Glenarthur: I rise briefly to support my noble friend. It does not seem to me to be a particularly difficult concept to bring to bear and for that reason, because of its simplicity, I very much hope that my noble friend will look at its virtues.
The Earl of Lindsay: I can promise that I will take this away and look forward to considering it in more detail. The spirit behind it is not something with which we will quarrel in that we would hope that, in the hierarchy of action that is applied to any situation where deer damage is thought to be occurring, the deer should be managed where the damage is occurring in the first instance and only in the second instance from where the deer are coming to inflict that damage. Indeed, the deer commission has therefore to contact those people with the right to shoot deer where they are more normally resident. I stress that what the noble Lord is trying to achieve through this amendment is something to which we are not unsympathetic and at which we shall look.
Lord Pearson of Rannoch: I am most grateful to my noble friend. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lady Saltoun of Abernethy Lady Saltoun of Abernethy moved Amendment No. 32:
Page 3, line 32, leave out ("shall") and insert ("may").
The noble Lady said: I know that this is the same wording as Section 6(1) of the 1959 Act but I wonder why "shall" was chosen instead of "may" in the first place back in 1959. I should have thought that "may" would have been more appropriate. Perhaps it was to make sure that the Deer Commission did not bury its head in the sand and do nothing. Can the noble Earl clarify the position?
The Earl of Lindsay: There is a good reason for "shall". If those with legitimate land use interests are being subject to serious damage by deer predation—I

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stress that deer are wild animals belonging to no one—they do enjoy a right of protection against that serious damage. There should be discretion within the commission in the process leading up to such a decision as to the most appropriate action to take in respect of a problem which is becoming more aggravated. The commission should exercise a discretion in terms of the voluntary agreements open to it and the control orders open to it and, finally, if all else fails and it is an emergency situation, then the marauding power in Section 6 of the 1959 Act is available. There should be discretion up to that point, but once serious damage is being inflicted on other legitimate land use interests, then this power should be activated.
Lady Saltoun of Abernethy: I thank the noble Earl for that explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Courtown: I beg to move that the Committee be adjourned until Wednesday next.
Moved accordingly, and, on Question, Motion agreed to.
The Deputy Chairman of Committees (Lord Burnham): The Committee stands adjourned until Wednesday next.
Committee adjourned at three minutes before seven o'clock.