BADGERS BILL [H.L.]

HL Deb 01 May 1973 vol 342 cc43-79

4.40 p.m.

THE EARL OF ARRAN

My Lords, I beg to move that this Report be now received.

Moved, That the Report be now received.—(The Earl of Arran.)

On Question, Motion agreed to.

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

VISCOUNT MASSEREENE AND FERRARD moved Amendment No. 1: Page 1, line 7, after ("control") insert ("(a)").

The noble Viscount said: My Lords, noble Lords who were here at Committee stage will probably remember that I then put down an Amendment the substance of which was to do what I want to do by means of this Amendment. When I put down my Amendment at Committee stage the noble and learned Viscount, Lord Dilhorne, pointed out that it had defective English, and of course he was quite right. I have now altered the English, and I sincerely hope that the noble Earl, Lord Arran, and Her Majesty's Government will look with favour on the new wording, because I think I am right in saying that at Committee stage neither the noble Earl nor Her Majesty's Government had any objection to the meaning behind the Amendment; I had merely got the wording wrong.

My Lords, I think it would be for the convenience of the House if I were to speak on the first two Amendments together; it will certainly save time. Perhaps I might read Clause 1 as it would read should my Amendment be accepted. So amended, the clause would read: If, save as permitted by or under this Act, any person wilfully kills, injures or takes, or attempts to kill, injure or take, any badger or if any person has in his possession or control

1. (a) any badger recently killed or taken; or
2. (b) any pelt from a freshly skinned badger which is not shown to have been killed or taken",

et cetera, et cetera. That is the clause that I should like to see in operation. I explained at Committee stage that my object in putting down such an Amendment is to close a loophole in the Bill. As at present drafted, the Bill allows a man to kill a badger and to skin it, to bury the carcase and then to have the skin in his possession for sale or for his own use. The only value in badgers, apart from having them as pets, is of course their skins. It is true enough that there are rogue badgers. I do not know whether my noble friend Lord Mansfield is here to-day; I do not think he is. He appears to be rather beset by rogue badgers.

I quite agree that if a man had in his possession the pelt of a freshly skinned badger and it was also found that he had some tongs and a terrier with him, that would probably be sufficient evidence to convict him under the Bill as at present drawn. But he might have only a pelt from a freshly skinned badger, and it might then be difficult to prove that he had in fact killed the badger. He could easily say that he had bought the pelt from a stranger whose name he could not remember. I hope that the noble Earl will accept this Amendment, because if the object of this Bill is to protect badgers I really think that it closes a loophole in the Bill as now drawn. It is not a very big loophole, but it is a loophole, and the Amendment closes it. I therefore beg to move.

THE EARL OF ARRAN

My Lords, for my part, and subject to the attitude of Her Majesty's Government in these matters, I gladly accept these Amendments, which will in fact help to achieve a restriction on the killing in this country of badgers for their pelts. In illumination, I might add that I am told that in the Cheviots a badger pelt goes for £12. I am also told that toothbrushes made from the skins of badgers—possibly obtained from abroad; I do not know—are now being sold in the major chemists' shops throughout the country. Subject again to what the noble Baroness says, I feel that the noble Viscount's Amendment will do much to help.

BARONESS YOUNG

My Lords, the object of these Amendments is to make it an offence for any person to have possession or control of a pelt from a badger. My noble friend Lord Massereene and Ferrard moved a similar Amendment, with the same object in mind, at the Committee stage of this Bill, which he then withdrew because, as he himself has said, the drafting was defective. In this particular case I think it would be true to say that the drafting is not ideal, but it meets the case, and the Government have no objection to these Amendments.

On Question, Amendment agreed to.

VISCOUNT MASSEREENE AND FERRARD

My Lords, Amendment No. 2 is consequential on Amendment No. 1. I beg to move.

Amendment moved—

Page 1, line 8, after ("taken") insert— ("or (b) any pelt from a freshly skinned badger").—(Viscount Massereene and Ferrard.)

On Question, Amendment agreed to.

THE EARL OF ARRAN moved Amendment No. 3: Page 1, line 10, leave out ("against this Act").

The noble Earl said: My Lords, this is the first of a series of drafting Amendments. I am advised that nowadays the phrase "against this Act" is regarded as being otiose. If the House accepts this and similar, related Amendments, this will bring the Bill into line with the way it is drafted in Clause 7. I beg to move.

On Question, Amendment agreed to.

Clause 2 [Offences of cruelty]:

4.48 p.m.

THE EARL OF ARRAN moved Amendment No. 4: Page 1, line 12, leave out ("cruelly") and insert ("with cruel intent").

The noble Earl said: My Lords, your Lordships will remember that we had a considerable amount of discussion about this during the Committee stage. I have been told that the use of the words "with cruel intent" rather than the word "cruelly" would establish the point of mens rea with clarity. On the other hand, I am told that it will not. I will not say that I hope the House will accept this Amendment, but I hope that our legal experts will have a word or two to say about it. To me it is all the same as long as what I wish to see achieved is achieved. I beg to move.

LORD FOOT

My Lords, I hesitate to intervene upon this Amendment, and I had hoped that we should have had with us to-day the noble and learned Viscount, Lord Dilhorne, and indeed the noble Earl, Lord Mansfield, who raised this matter at the Committee stage. I would ask my noble friend to reconsider this Amendment, because I think it only introduces unnecessary confusion into the situation. The words which appear in the Bill now—that is, If any person shall— (a) cruelly ill-treat any badger", et cetera—are words which have in fact been used in Acts concerned with the protection of animals running back as far as the Protection of Animals Act 1849. They were used again in the Act of 1911, the main Act, and they have been used ever since. During the course of that long period of time the courts have had the opportunity of pronouncing what those words really mean and the matter in my view is really beyond doubt. There is no sort of doubt as to what those words mean.

May I first quote from a case of 1899 which was that of Duncan v. Pope, a case stated in the Divisional Court, or whatever it was called at that time. The court was called upon to pronounce upon the meaning of the words in the 1849 Act: If any person shall … cruelly beat ill-treat"— et cetera.

The judgment of Lawrence J. was very short. He said: The magistrates have decided that there had to be an intention on the part of the defendant to be cruel. And Lawrence J. disposed of the matter in this way. He said: In this case the magistrates have taken an entirely erroneous view. They have considered whether there was an intention to commit cruelty. The question is whether there was cruelty in fact. This act was about as cruel as one could conceive. There is no doubt that there was gross and brutal cruelty. The intention does not matter. That was reinforced years later by a very powerful Divisional Court which was called upon to decide the meaning of the same words as expressed in the 1911 Act. That was a Divisional Court consisting of Lord Chief Justice Hewart, Mr. Justice Avory (as he then was) and Mr. Justice Shearman. I should like to quote one brief passage from Mr. Justice Avory's judgment. He said: The expression 'cruelly ill-treat' applies where a person willfully causes pain to an animal without justification. Mr. Justice Shearman, in his judgment, said: It appears to me that upon a summons under Section 1 of the 1911 Act one has to consider what is cruelty. I do not think that it can be better defined than as causing unnecessary suffering. It is necessary in some cases to cause suffering. It seems to me that what the justices have to look at when a man is charged with cruelly beating or ill-treating is whether he is doing something which it was reasonably necessary to do. It is clear from those quotations, I hope, that as the law stands at the moment, and as it has stood for something like 130 years, the questions which the court has to ask itself when somebody is charged with cruelly ill-treating an animal are purely objective questions. They have to ask themselves, first, what in fact was done to the animal. Did this involve suffering? They have, secondly, to ask themselves whether it was done wilfully and not accidentally; and then they have to ask themselves whether the suffering was necessary or with justification. Those are purely objective tests.

If my noble friend's present Amendment is accepted, it will introduce a further element into this offence which will be of a subjective nature; that is to say, what was going on in the mind of the person who is alleged to have committed the cruel act. That introduces a wholly new test and I believe it is going to bring confusion into the situation. It is a subjective test which ought not to be introduced into the law after all these years. I submit that the present state of the law is perfectly clear and it will merely be causing quite unnecessary confusion if this subjective element is introduced into the offence at this very late stage. I very much regret that the noble and learned Viscount, Lord Dilhorne, is not here because at Committee stage he expressed a view on this matter that the test ought to remain objective, as I have been trying to explain to your Lordships this afternoon. I do not know if there are any other lawyers in the House who will come to my aid on this, but I think that we should be making a serious, if minor, mistake if this Amendment were accepted.

VISCOUNT HANWORTH

My Lords, I am not a practising lawyer, but I believe that if we pass this Amendment it will in fact weaken the Bill because it will be something further which has to be proved. Intent will have to be proved, if I am right in this. I think that the Bill should remain as it is.

LORD CAMOYS

My Lards, I have bothered your Lordships before by speaking on this subject. I am a preservationist. I do not belong to the society which is against cruel sports. If people want to hunt, it is up to them; if they want to shoot pheasants, it is up to them. I watch badgers. I have three setts and I have watched badgers for 35 years. I know that a badger must be frightened when you put in a terrier at each end of its sett. Eventually it comes out and is cleaved with a special spade across the back of its head or neck. It is anti-British, cruel and, I think, very stupid—and the practice is growing. Unless you count the wild goat as indigenous, and that is doubtful, the badger is our fourth largest mammal. There is a great increase in the digging of badgers as a so-called sport (and to me it is not a sport) in the West of England.

I want to support the noble Lord who has just spoken and the noble Earl, Lord Arran, and to express the view that we should prevent people from digging badgers. There are rogue badgers; but in all my years I have known only one out of perhaps scores. He is very old. He got under a chicken hut, pressed the boards up, got in and just like a fox killed a chicken and ate it. You will get the occasional rogue. If necessary that situation must be dealt with, but it is very rare. The badger does 95 per cent. good and 5 per cent. harm. The only harm it does is to run up a hedge, smell out a partridge nest and when the partridge is about to hatch he will take it as an hors d'oeuvres. He eats rats, 75 per cent. earthworms, mice, small voles and young rabbits. I hope we are not going into too much technical detail as to what is cruel and what is not cruel. To me it is deliberate cruelty to put in dogs and to dig out a badger and to smash his head when he comes out.

5.0 p.m.

BARONESS YOUNG

My Lords, when a somewhat similar Amendment was considered at Committee stage we had, if I may say so, a lengthy and very learned legal discussion on whether the offence of cruelly ill-treating a badger would involve mens rea and, if so, whether it would be necessary to prove in the courts an intention to be cruel. On re-reading the proceeding of the Committee stage, and on taking advice on this point, I am told that this Amendment puts the matter beyond doubt by changing the wording of the provision to make it an offence if any person shall, as the Amendment says, "with cruel intent" ill-treat any badger. I said during the Committee stage that I am not a lawyer and I think that it would be unwise of me to go beyond the official advice that I have been given. I am advised that this will put the meaning beyond doubt and I am glad to support the Amendment.

LORD HOY

My Lords, I am grateful to the noble Baroness, Lady Young, for what she has just said. Like the noble Lord, Lord Foot, I am always sus- picious when words are proposed to be changed. I know what impelled the noble Earl, Lord Arran, and the noble Earl, Lord Cranbrook, to put down this Amendment. They felt that it would clear up the situation. But whenever I have taken part in a debate on a Bill I have been told by the Government of the day that if words have been used and have come to be understood in the courts for any length of time, simply to change them would create doubt in the courts. I have no doubt that had he been present to-day the noble and learned Viscount, Lord Dilhorne, would have had something to say about this matter, but I understand that he has an engagement elsewhere which it was impossible for him to break. If the noble Baroness, Lady Young, is saying that the acceptance of this Amendment would improve the situation, I am willing to accept her explanation. I am certain that she is acting on the best advice. Otherwise I should have been prepared to accept Lord Foot's interpretation of the law. But, as I say, I accept the noble Baroness's explanation, and so I support the Amendment.

LORD DONALDSON OF KINGS-BRIDGE

My Lords, I am not entirely happy about this point. During the Committee stage we had diametrically opposite advice from two eminent lawyers and I asked whether this issue could be resolved, but it was not. As I understand it, the question still has not been resolved. The noble Baroness, Lady Young, said that she preferred one version to the other, but the legal point has not been dealt with. I should like to know whether my noble friend Lord Foot is correct in saying that under the various Acts to which he referred mens rea is not required to be proved. It is a perfectly simple problem: either it is or it is not. If it is not, the present situation is all right, but if it is, then we reed the Amendment. I do not consider that we have been fully informed and I think that we should be before we make a decision.

LORD HOY

My Lords, if I may intervene again, may I say that I accept the word of the noble Baroness that it is not a personal opinion that she has expressed but an opinion given to her by the lawyers who advise her Department. If the noble Baroness could make that clear, I would reiterate what I said earlier.

BARONESS YOUNG

My Lords, if I may speak again with the leave of the House on this matter, I should like to thank the noble Lord, Lord Hoy, for putting that question to me. I think that I should be in a most dangerous position in any circumstance if I intervened with my own personal legal advice. The fact is, as the noble Lord, Lord Donaldson of Kingsbridge, has said, that contradictory legal opinions were expressed during the Committee stage and this matter has been looked at again. The advice I have received from the Home Office is that this Amendment would put the question beyond doubt. For that reason I said that the Government have no objection to the Amendment.

LORD HENLEY

My Lords, if the advice that the noble Baroness, Lady Young, has been given is correct and these words must now be used, what is the position with regard to all the other Acts of Parliament which use the word "cruelly"? Does it not mean that they are all in doubt?

LORD BIRKETT

My Lords, I am sorry to pursue this matter, but it seems to me that here we have a situation where on the one hand we are told that the Amendment will make things clearer and on the other hand we are told by the noble Lord, Lord Foot, that it will not. The noble Lord, Lord Foot, explained carefully why it would not, but nobody has explained why it will. I know that there is a great deal of opinion which says that it will, but no one has yet explained how, and I find myself in a situation where I desperately wish that someone would tell me how the Amendment would make the situation clear.

THE EARL OF ARRAN

My Lords, I think that now I ought to say what I did not say at first: that the noble Earl, Lord Mansfield, has chickenpox and is unable to be present this afternoon. He fully accepts the phrase "with cruel intent". But, clearly, there is some doubt or perhaps one might almost say there is complete confusion, in the minds of your Lordships as to what is the correct phrase. I hate to postpone the matter once again, but I am wondering whether we should not leave it in suspense now and on Third Reading try it out again.

Amendment, by leave, withdrawn.

5.6 p.m.

THE EARL OF ARRAN moved Amendment No. 5. Page 1, line 12, leave out ("or")

The noble Earl said: My Lords, this subject gets really complicated. There are 31 Amendments in the Marshalled List and I shall find it very hard, first not to weary your Lordships and, secondly, to get things even approximately right. This Amendment, to leave out the word "or" in line 12 on page 1, is a paving Amendment for the next Amendment, and perhaps it would be convenient if we discussed those two Amendments together. The purpose of the second Amendment, in line 14, is very important. It is to make the digging for badgers an offence unless, as is provided for in a later Amendment, an authorised person can show that he had to do it to protect his property or to prevent the spread of disease. I repeat, I regard this as an extremely important Amendment and if it is accepted I think that it will help to bring about the end of digging for badgers as a so-called sport. My Lords, I beg to move the Amendment.

BARONESS YOUNG

My Lords, perhaps it would be convenient if I spoke to this Amendment and to the next one. As the noble Earl, Lord Arran, has said, there is a strong body of opinion in the country in favour of the total abolition of badger digging. If accepted, the two Amendments would, in effect, mean the end of badger digging for sport, if the Bill becomes law. If later Amendments are carried, which make provision in respect of an authorised person, it would enable an owner or occupier to dig out a badger in the course of the essential control of his property if there was no other effective way of dealing with the matter. I understand that the Ministry of Agriculture, Fisheries and Food is satisfied that this Amendment would not hinder the taking of necessary control measures, and therefore the Government have no objection to it.

THE EARL OF CORK AND ORRERY

My Lords, I feel that it would be extremely difficult to overrate the importance of this Amendment. It brings us back, in a sense, to the crux which we reached during the Committee stage, when it was proposed by my noble friend Lord Cranbrook to change this from a Bill to protect badgers into a conservation Bill, and that was not permitted by the Committee who actually declined to accept my noble friend's Amendments. Shortly we are coming to those Amendments which are in exactly the same form. But what has changed, what it is proposed to change this afternoon, leads my noble friend to think that those Amendments which we rejected during the Committee stage may be acceptable to-day. The answer is that this Amendment, tabled by the noble Earl, Lord Arran, is almost a master subsection, in my opinion. It abolishes, or makes illegal the digging of badgers. As I see it, though I do not necessarily think that everyone else will see it in the same way, the greatest benefit that this Bill could bestow would be to make the digging for badgers illegal. To me that is the whole object of the Bill. I do not know whether the noble Earl, Lord Arran, would go so far as that. That is a measure of the importance of this Amendment. I greatly hope it will be carried. If it is not then I, for one, would oppose the other Amendment of my noble friend Lord Cranbrook. If it is carried, then I will go wholeheartedly along with my noble friend and hope we may carry all the Amendments and have an excellent Bill as a result.

THE EARL OF CRANBROOK

My Lords, it was in order to make my objective perfectly clear to the noble Earl that he and I put this Amendment down together, and I regret that my noble friend on my right did not associate me with it when he was criticising me for my other Amendments. It was just because we were able to put down this Amendment, which I would have put down at an earlier stage had it entered my head, that I feel able to do what I hope to do in a moment and re-present Amendments which your Lordships did not like last time.

On Question, Amendment agreed to.

THE EARL OF ARRAN

My Lords, Amendment No. 6 is consequential. I beg to move.

Amendment moved—

Page 1, line 14, at end insert: ("or, (c) subject to section (Exemptions for authorised persons) (3) of this Act, dig for any badger,").—(The Earl of Arran.)

On Question, Amendment agreed to.

5.12 p.m.

THE EARL OF ARRAN moved Amendment No. 7:

Page 1, line 14, at end insert: ("or ( ) use for the purpose of killing or taking any badger any firearm other than a smooth bore weapon of not less than 20 bore or a rifle using ammunition having a muzzle energy of not less than 160 footpounds and a bullet weighing not less than 38 grains,").—(The Earl of Arran.)

The noble Earl said: My Lords, I am sorry to have to weary your Lordships—I too am getting rather weary. This Amendment, by which I set great store, is modelled on a similar provision in the Conservation of Seals Act and is intended to ensure that only weapons of an adequate size and power will be used in shooting badgers. If the House accepts this Amendment it will be illegal to use an air rifle, which in any case would be futile against badgers. I have had a letter and have spoken to the noble and learned Viscount, Lord Dilhorne, who I am sorry not to see here to-day, and I was asked to move certain Amendments on his behalf. He feels strongly that if we go into details about bores, calibres and shots and those kind of things, we shall so confuse the Bill and so confuse the persons that it will not be worth having. As he puts it, the Bill will be a dead letter with no one bothering to enforce it. I personally do not agree, but some of your Lordships may feel that the noble Viscount is right. If so, perhaps some noble Lord will say so. I beg to move.

VISCOUNT HANWORTH

My Lords, I do not see that this Amendment can do any harm to the Bill. It may not be enforced because people will not go round to check on the rifles. But if there is a clear case of a gun being used which is inadequate for the purpose, this would be a very useful Amendment, and I cannot see why the noble and learned Viscount, Lord Dilhorne, should feel that it complicates the Bill. It will only complicate matters if one has a case where there is some obvious breach and where this has to be discussed. But in the vast majority of cases I do not think this will arise, so why not put it in?

LORD MARGADALE

My Lords, I have listened throughout all the debates on this Bill and this is the first time that I have opened my mouth. I should like to support the last speaker in what he said. I support the Amendment. I think it can do no harm and may do good. I have not heard anybody mention the use of a humane killer and I venture to think that in some instances that would improve the Bill—for humanity and the safety of all concerned—and I hope that the noble Earl, Lord Arran, who has already referred one matter to Third Reading may consider doing something about this matter also.

LORD BURTON

My Lords, I thought a humane killer had to be placed against the animal. If the noble Lord would put a humane killer against the head of a badger he is a braver man than I am.

LORD HAWKE

My Lords, I wonder whether it is right to pass Amendments to a Bill unless we are certain what we are passing. I do not know whether many noble Lords know what sort of a weapon has a muzzle energy of not less than 160 foot pounds and a bullet weighing not less than 38 grains. I think the noble Earl, Lord Arran, ought to explain this before we pass the Amendment.

THE EARL OF CRANBROOK

My Lords, perhaps I can explain. I have been concerned with this matter in the administration of the Conservation of Seals Act. This would allow a 0.22 rim fire solid long rifle bullet, and of course a 20 bore is perfectly straightforward. The solid long rifle bullet will smash a badger's skull without any difficulty, whereas a hollow pointed one would probably break up on impact and might only wound it.

BARONESS YOUNG

My Lords, noble Lords who have followed this Bill with such great interest and so closely will realise that Clause 1 makes it an offence wilfully to injure any badger. There is no relaxation of this particular prohibi- tion, and therefore anyone who sets out to shoot at badgers with a weapon which he knew was of insufficient power to kill them would probably be guilty of an offence of injuring them. Clause 2(a) also makes it an offence to ill-treat any badger with cruel intent and it might be held that deliberately to shoot at badgers with a weapon of inadequate power would be an offence under this provision. However, the minimum size of shot-gun and the prescription for the minimum power of a rifle bullet in the Amendment are in line with the shooting recommendations for badgers included in the book Predatory Mammals in Britain drawn up by a Working Party of experts in the sporting and naturalist field and it is therefore unlikely that anyone who wished to control badgers by shooting them would choose to use weapons of lesser power.

The view of the Government is that although the Amendment does not appear at first sight to add anything to the Bill they have no objection to it remaining in the Bill and their attitude is one of complete neutrality in the matter.

THE EARL OF ARRAN

My Lords, I thank the noble Baroness and would also wish to thank my noble kinsman Lord Margadale for his most helpful suggestion. The humane killer had struck me as an obvious weapon to use and I cannot think why it had not been introduced so far. Would your Lordships be willing to introduce and add the humane killer on Third Reading?

LORD BIRKETT

My Lords, is the humane killer a firearm?

LORD MARGADALE

A firearm with a captive bolt so that if it goes off in the wrong direction it cannot hurt anybody.

LORD BIRKETT

It is legally defined as a firearm and therefore would come under this clause.

On Question, Amendment agreed to.

THE EARL OF ARRAN

This is a drafting Amendment. I beg to move.

Amendment moved— Page 1, line 15, leave out ("against this Act").—(The Earl of Arran.)

On Question, Amendment agreed to.

Clause 3 [Selling of live badgers]:

THE EARL OF ARRAN

My Lords, this is a drafting Amendment. I beg to move.

Amendment moved— Page 1, line 19, leave out ("against this Act").—(The Earl of Arran.)

On Question, Amendment agreed to.

Clause 4 [Restriction of marking and ringing]:

THE EARL OF ARRAN

My Lords, this is a further drafting Amendment. I beg to move.

Amendment moved— Page 1, line 24, leave out ("against this Act").—(The Earl of Arran.)

On Question, Amendment agreed to.

5.21 p.m.

THE EARL OF CRANBROOK moved Amendment No. 11: After Clause 4 insert the following new clause:

Special Protection for Badgers

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

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

The noble Earl said: My Lords, this Amendment, which it is true I presented to your Lordships on the Committee stage, has to be taken in conjunction with Amendment No. 12 which stands in the names of the noble Earl, Lord Arran, and myself, the second clause of the Bill and the definition of an "authorised person", which comes in Amendment No. 25; to that the noble Earl has down two Amendments, Nos. 28 and 29, which when the time comes I should be happy to accept. We shall then, I think, be in the position that the noble Earl and and I hope all who support the noble Earl, are in agreement that we can divide the country up into two categories of places: one where badgers are so rare that the provisions of the Amendment which I am now moving have to be applied in order to give the animal complete protection, save for the occasional "rogue" who is doing damage to crops, property and life; and secondly, other parts of the country where badgers are common, and where, as with any other large mammal which does not, like a bird, migrate, you can on occasions get a population explosion which leads to those creatures tending to do damage.

Your Lordships may remember that the noble Lord, Lord Somers, I think on Second Reading, referred to an experience he had when a farm worker went out night after night returning on almost every occasion, I think the noble Lord said, with a dead badger. Those of your Lordships who have experience of badgers will know that, by and large, you do not meet badgers if you are going for a casual walk through the woods with a gun on your arm: you have to wait outside the sett until the creature comes out, and if you shoot one you alarm his neighbours and they tend to go on to another site. That is not something you can, normally do night after night, and if you can, it means that there has been a considerable population explosion in the neighbouring badgers, probably resulting in their having to come out earlier than usual because the normal food supply is becoming insufficient for the population which exists. The next step with any large mammal is that it starts to do damage which it does not normally do, whether it be one of the larger predators, like a lion or a tiger, which when their natural food is not available turn to cattle or man-killing. In those cases, the person who will be authorised to take the appropriate steps will be the man whose property is likely to be damaged, as defined by the Amendment which I put down, as amended by the Amendment to my Amendment of the noble Earl, Lord Arran.

During the Recess I was fortified in my feeling that this is the right way of dealing with badgers, because I went to a conference of the British Mammal Society where there were no fewer than 39 badger fans, and myself, and we went through this Bill clause by clause, and the Amendments which I knew were going to be moved one by one. We had there, I suppose, with the exception of myself, 39 of the greatest experts on badgers in this country, and they were unanimously in agreement with the Bill as it will be if your Lordships agree to this Amendment and those which stand in the name of the noble Earl, Lord Arran, and in my name. I find that confirmation really valuable, and I hope that your Lordships will find it valuable, too. I beg to move.

LORD SOMERS

My Lords, since the noble Earl has mentioned my name, I should like to say that I do not think there was any population explosion in the case which I mentioned. The man took a dog with him, which probably helped to bring the badgers up. But, in any case, whether there was or was not a population explosion in that case, it is a fact that animals tend at times to overbreed, and if one is going to preserve animals one must bear in mind that one also has to control their numbers. Therefore, I wholeheartedly support this Amendment.

THE EARL OF ARRAN

My Lords, I do not want at this stage to talk about the definition of the "authorised person"—which is dynamite, or was on the last occasion. The House will remember that during the Committee stage this Amendment was defeated largely because it was linked to an unsatisfactory definition of "authorised person". One way or another, I am now satisfied that the Bill has been sufficiently tightened up, notably by a prohibiting provision, and it will be further strengthened if the House accepts my Amendments to Lord Cranbrook's Interpretation Clause. I am therefore happy to advise your Lordships on this occasion to accept this Amendment, and the next Amendment, though I must stress that I am only prepared so to advise your Lordships on the basis that the House will later accept, as the noble Lord, Lord Cranbrook, is prepared to recommend, my suggested Amendments to his Interpretation Clause.

5.28 p.m.

BARONESS YOUNG

My Lords, I understood my noble friend Lord Cranbrook to say that he was speaking to this Amendment No. 11 and the following one, No. 12, and therefore I will take the opportunity to speak to both of them, because I think this will be for the convenience of the House. Last time, as the noble Earl said, we had a long debate on both these Amendments, and particularly on Amendment No. 12. On considering the matter afterwards, I thought that perhaps I had not made it sufficiently clear to all noble Lords who have shown such a deep interest in this Bill that these two Amendments are some of the most important Amendments to the Bill, and particularly Amendment No. 12, which deals with authorised persons, because it is that Amendment which removes the Government's main objection to the original Bill as it stood. I should like to make it clear that both of these Amendments have the Government's full support, and I would recommend that the House should support them.

I do not think there is any need for me to say anything further on Amendment No. 11, which is quite clear, but perhaps I should elaborate the point about the "authorised person". Under subsection (1) of the Amendment an "authorised person"—which, by virtue of a definition that is included in a later Amendment, would include an owner or occupier—acting on the land that he owns or occupies would be permitted to kill or take badgers other than in areas of special protection. So by preserving owners' and occupiers' common law right to control wild animals on land they occupy, this Amendment would remove the Government's principal objection to the Bill. However, subsection (2) provides that such a person in an area of special protection shall have a very good defence to any charge of unlawfully killing or taking a badger if he can show that his action was necessary for the purpose of preventing serious damage to land, crops, poultry or any other form of property, or for the purpose of preveting, the spread of disease. This is a completely acceptable defence.

THE EARL OF ARRAN

My Lords, if I might interrupt the noble Baroness for a moment, am I right in thinking that the onus of proof would lie on the person?

BARONESS YOUNG

My Lords, my understanding is that if an owner killed the badger in a protected area he would have a good defence if he could show that it was necessary for the protection of crops or for preventing the spread of disease. That would be his defence. These provisions in subsections (1) and (2) follow the precedent in the Protection of Birds Act, under which an authorised person is permitted to kill wild birds listed in Schedule 2 to that Act, consisting of those species which may be harmful to agriculture but which are not in any way in danger, and he has a good defence against a charge of killing a protected bird, other than certain named species of very rare birds, if he can show that his action was necessary to prevent serious damage to crops or property.

Subsection (3) is really a reference to an earlier Amendment which has already been agreed to this afternoon. The Amendment moved to Clause 2 made it an offence to dig for a badger, subject to the provisions of this new clause. Subsection (3) of this clause provides that an authorised person shall have a good defence to any charge of unlawfully digging for a badger if he can show that his action, again, was necessary in order to prevent damage to land or crops. I have spoken at some length on this subject because I wish to make the position absolutely clear—that is, the legal position, as I understand it, and the position of the Government—so that there can be no possible misunderstanding on this point.

LORD BIRKETT

My Lords, the noble Earl, Lord Arran, has suggested that we should accept this Amendment and the noble Earl, Lord Cranbrook, has said he will have no objection to Amendments 28 and 29. It is on that basis that we have a recommendation from the noble Earl, Lord Arran. Would it be quite out of Order to ask the noble Baroness whether the Government would have any objections to Amendments 28 and 29, so that we might all know exactly where we stand in relation to this Amendment?

BARONESS YOUNG

My Lords, I am not at all sure that I am not completely out of order in speaking on Amendments that have not yet been moved and on which we have not had any discussion, but I have no reason to suppose that the Government would have objections to these two Amendments.

On Question, Amendment agreed to.

5.32 p.m.

THE EARL OF CRANBROOK moved Amendment No. 12:

After Clause 4 insert the following new clause:

Exceptions for authorised persons

".—(1) Except within an area of special protection established by any order made under the foregoing section an authorised person shall not be guilty of an offence under section 1 of this Act by reason of the killing or taking or attempted killing or taking of any badger or by reason of injuring any badger in the course of taking it or attempting to kill or take it.

(2) Within an area of special protection established by any order made under the foregoing section an authorised person shall not be found guilty of an offence under section I of this Act by reason of the killing or taking or attempted killing or taking of any badger or by reason of injuring any badger in the course of taking it or attempting to kill or take it if he satisfies the court before whom he is charged that his action was necessary for the purpose of preventing serious damage to land, crops, poultry or any other form of property or for the purpose of preventing the spread of disease.

(3) An authorised person shall not be found guilty of an offence under paragraph (c) of section 2 of this Act if he satisfies the court before whom he is charged that his action was necessary for the purpose of preventing serious damage to land, crops, poultry or any other form of property or for the purpose of preventing the spread of disease."

The noble Earl said: My Lords, I believe we have discussed this point already, but I should like just to stress that in both these cases the burden of proof that the taking or killing of the badger was necessary would, contrary to the other clauses of the Bill, lie on the person taking or killing the animal. I beg to move.

On Question, Amendment agreed to.

Clause 5 [General exceptions]:

LORD ALLERTON

My Lords, in the absence of the noble and learned Viscount, Lord Dilhorne, I trust I shall be in order in moving the Amendments standing in his name. They are drafting Amendments and they seem to improve the Bill very considerably. I beg to move.

Amendment moved— Page 2, line 5, leave out from ("it") to end of line 6.—(Lord Allerton.)

On Question, Amendment agreed to.

LORD ALLERTON

My Lords, I beg to move Amendment No. 14:

Amendment moved— Page 2, line 8, after ("be") insert ("so").—(Lord Allerton.)

On Question, Amendment agreed to.

Clause 6 [Licence to take badgers]:

THE EARL OF CRANBROOK moved Amendment No. 15: Page 2, line 20, after ("sell") insert ("or to have in his possession").

The noble Earl said: My Lords, this Amendment and the following one are intended to meet the difficulty raised by the acceptance of an Amendment of the noble and learned Viscount, Lord Dilhorne, on Committee stage, making it illegal to have a live badger in one's possession. These two Amendments would allow a licensee licensed by the appropriate Government Department to have a live badger in his possession. I beg to move.

BARONESS YOUNG

My Lords, at the Committee stage Clause 3 was amended so as to make it an offence for any person to have in his possession a live badger. As my noble friend Lord Cranbrook has explained, there are some circumstances in which the possession of live badgers ought to be allowed, particularly for scientific purposes or in zoos. It is therefore necessary to provide that licences may be granted to authorise the possession of live badgers for certain purposes, which object is achieved by these two Amendments. I am glad to support both of them.

On Question, Amendment agreed to.

THE EARL OF CRANBROOK

I beg to move Amendment No. 16.

Amendment moved— Page 2, line 23, after ("sell") insert ("or to have in his possession").—(The Earl of Cranbrook.)

On Question, Amendment agreed to.

5.36 p.m.

LORD BURTON moved Amendment No. 16A: Page 2, line 39, leave out line 39.

The noble Lord said: My Lords, I must apologise for entering the fray at this late stage, but I was in Australia when the Second Reading debate took place and was unable to come in Committee. Even now I am afraid that my Amendments are not on the Marshalled List but appear on a separate sheet. There are three Amendments, all of which are designed to ensure that this Bill should not apply to Scotland. The noble Earl, Lord Arran, asked me this morning why I had put down these Amendments. I think the reasons can be summarised on grounds with which your Lordships would all agree. First, we should not have more restrictions, rules or regulations than are absolutely necessary in this country; and secondly, the laws that are made should be so reasonable that one can reasonably expect the majority of people to comply with them.

Most of your Lordships are badger lovers and I agree that badgers are attractive creatures and should be reasonably preserved. However, the situation in Scotland is different from that in England. I am not aware of any badger digging in Scotland: few of us who live there have time for such an operation because we spend far too much time working. Then there is the question of badger numbers. Though I cannot speak for every part of the country, I suspect that numbers have markedly increased in Scotland. Certainly there are badgers now in many areas where there were none a few years ago. I believe that less than 100 years ago there were no badgers at all in Scotland. However, I must qualify that statement. Although I have no scientific proof and can go only by my own observation, I believe that the badger population fluctuates considerably from year to year. If one has a mild winter, the populations of mice, frogs and beatles upon which the badger feeds increase because they have not been killed off by severe weather. In the following spring Mrs. Brock will be in good condition after feeding well, and she will rear a large litter. But after a hard winter the food supply is diminished and one is left with a hungry badger population. However, barring annual fluctuations, the badger population in Scotland has increased, and therefore to introduce legislation to protect them would only mean unnecessary rules and regulations.

My second reason for putting down these Amendments is that I feel it would be unreasonable to apply the provisions of the Bill to many hill areas, and the law would almost certainly be widely broken. Your Lordships may ask: "Why"? Some noble Lords may remember that a few years ago I moved an Amendment concerning a gin trap for otters. It appeared to have no ill effect. The same Act banned the gin trap for foxes in Scotland as from April 1 this year. I wonder whether April 1 was a significant date, because it certainly seems to have been a foolish thing to have done. Already during the last month there have been lambs and poultry unnecessarily killed by foxes. However, the legal methods left to us for fox destruction are few. Probably the most effective method, and in some cases the only one, is to destroy them in their dens (or "earths" as they are called in England) in the spring, when they have their cubs. Now the foxes are inclined to use the same places each year, so the search for them is limited, which as the spring is a busy time with lambing, et cetera, is, to say the least, fortunate. However, if badgers are busy on these hill areas they dig out fresh places for the foxes, and it may be long enough before they are found.

I remember one instance when for two years foxes were killing our lambs near the stalker's house and we could not find the den. Then one day, when one was out stag stalking, it was necessary to crawl up a burn, and there, only yards from the path, was an old badger sett which the foxes had been using. One could not see that from the path. Another complication which arises in the hills is when one is searching for foxes in the spring and the terriers go to ground where there are badgers. I know of a fox trapper who lost three terriers in one day as a result of injuries from badgers. I will not regale your Lordships with the gory details of this episode; but the terriers did not die quickly, and such a happening is not uncommon. The trouble is that usually the best terriers for foxes are the first to suffer, as they are usually the boldest. You can imagine the setback to fox control that such a loss of terriers can produce in an area. Thus, through your kindness and the love of the badger, if my Amendment is not accepted you may in fact increase cruelty.

My Lords, you can scarcely blame these hill men if they kill some badgers, and it scarcely seems right that they should be branded as criminals for merely protecting their livelihood, even if as a result of today's Amendments it may be possible for them to prove themselves innocent. The noble Earl, Lord Arran, in introducing his Bill, said that it was a conservation measure. But with there being no argument on conservation grounds in Scotland, I cannot see the point of including Scotland in the terms of the Bill, Northern Ireland is not included—

THE EARL OF ARRAN

My Lords, I am sorry to interrupt the noble Lord. I said it was a conservation measure and also an anti-persecution Bill. It has two purposes, two prongs, each one as important as the other. Perhaps the noble Lord may be forgetting the second part.

LORD BURTON

My Lords, I am not forgetting the second part. I said that there is need for the badgers to be preserved but they cannot be persecuted in Scotland. One of the biggest causes for the deaths of badgers in England is the motorways. Regrettably, we are sadly short of motorways in Scotland. Frankly, I have never seen a badger which has been run over in Scotland; maybe there are a few. But the badger population has increased out of all proportion. As I said, I do not think there were any badgers a hundred years ago, but now they are all over Scotland. They are in areas where they cause trouble through no fault of their own, but they cause considerable trouble. Fox destruction is now becoming a serious problem for us and it will be considerably aggravated if we comply with the law and are not allowed to kill badgers in these hill areas.

5.43 p.m.

LORD HOY

My Lords, perhaps it would not be inappropriate if I were to say something in reply to the noble Lord, Lord Burton. I did not like his opening argument when he said it was all right for England and Wales to have more rules and regulations but please do not apply them to Scotland—it is all right for the Sassenachs, but do not bring them North of the Border. That seemed to be the main contention of his argument. Then he said he was not aware that digging had been done in Scotland. He is not aware of it; but he is not unaware of it either. It may well have happened when he was in Australia and when we were dealing with this Bill. It is just that he was not here. I can tell him from more intimate experience that it does and can happen. Also there is a danger of its happening.

I could not understand him when he said that the numbers fluctuate and because they fluctuate we should not do anything about it. I know a little about the noble Lord and I admire him in many ways. I can also think of how he rules his domain in the Highlands; I should like him to apply the fluctuation rule to deer and salmon. They fluctuate, but I have never known the noble Lord give us permission to pick them out and pull them out. Yet it is quite logical to apply that argument to badgers—and badgers only! I could not understand his argument that badgers might leave their setts and foxes might go in and, as a consequence, badgers present a threat to the countryside. I know a lot of good landlords who vacate their homes and give them over to tenants who are not quite so good, but I do not condemn the landlord because of that.

What the noble Lord is trying to do is convey to your Lordships that because the badger has given up his sett and foxes are going in, we should get rid of badgers. I cannot think of anything much more illogical than that. The badger has not done harm in Scotland: the noble Lord cannot say to your Lordships' House this evening that it has done harm. There are many of us in Scotland who have looked at badger setts and at the badger. Maybe they do a little harm; but that harm is infinitesimal so far as the countryside is concerned. Every account, every argument that the noble Lord put forward, is a very good reason for not accepting a single one of his Amendments.

5.46 p.m.

THE EARL OF CRANBROOK

My Lords, I hesitate to interfere in a private war between two Scots; but as my mother was a Scotswoman perhaps I have some claim to take part. I find the noble Lord's argument almost totally incomprehensible. What does this Bill provide? Under Clause 2 it provides that you shall not be unnecessarily cruel to badgers. That must apply all over the United Kingdom, I hope. It provides that people shall not sell live badgers to be pets. We want that to be applied to both sides of the Border; we want restrictions on ring- ing to be applied both sides of the Border. I should have thought that all the points that the noble Lord made are met by the clauses which we have agreed to this afternoon: where damage is being done, or likely to be done, the owner or occupier has a right to take the necessary steps to prevent its being done. The only places where he cannot kill badgers (save in the most important circumstances) is when it is thought by the Nature Conservancy that the badger is so rare that it needs total protection. I cannot believe that there are not parts of Scotland where badgers are rare and do not want total protection. I cannot see that it can do any more harm than in Scotland, however many badgers there are there, than it does in the counties of Wiltshire, Dorset and the like, where there are just as many badgers as there are, I imagine, anywhere in Scotland. I hope that the noble Lord will not press his Amendment and that your Lordships will not accept it if he does.

THE EARL OF ARRAN

My Lords, I should have thought that this Bill should extend to Scotland. But may we hear what Her Majesty's Government have to say about this matter?

LORD GEORGE-BROWN

My Lords, since I was sitting here listening, doing nobody any harm—like, I understand, most badgers do nobody much harm—I was fascinated, as the lately much regrettably rejected Member for South Derbyshire, in listening to the noble Lord, Lord Burton, addressing us. If there was ever an absent badger which had left his sett, it must indeed be the noble Lord, Lord Burton, because he, or one of his predecessors, established a sett in South Derbyshire and used the water from the River Trent to produce a beer, and it appears he has now gone away, sometimes to Scotland and often to Australia, and arrives back and says that we must not allow the badger who has gone away to leave his sett unoccupied. On behalf of my ex-constituents—who, may I say, I do not love half as much as they say they love me—I would say to the noble Lord, Lord Burton, that it might have been better had he stayed at home and minded his own estate instead of dodging away and then quarrelling about who should do what with his badger setts.

LORD NUNBURNHOLME

My Lords, I do not want to detain your Lordships but I gather than the Amendments—of which I have not been able to get a copy—exclude Scotland from the Bill. Why that should be so, I do not know, and I do not think there are any grounds for excluding Scotland. There are some things in the Bill which the noble Lord, Lord Burton, may not like, but the Bill certainly does a lot of good in regard to the publicity surrounding the cruelty of badger taking. This publicity and popular opinion will be far more forceful than any fines imposed under this Bill. I really do not see why we should tolerate this Amendment.

BARONESS YOUNG

My Lords, the noble Earl, Lord Arran, asked what would be the attitude of the Government to these three Amendments, and as I think I made clear on the Second Reading of the Bill the Government's attitude to a Private Member's Bill of this kind is one of neutrality. If I may say so, having listened to the recent exchange I think I should be wise to stay on that point. However, if the House decides, as a result of the passage of this Bill, that extra protection is necessary for the badger it would seem to be much more sensible to extend this throughout Scotland as well as England and Wales.

LORD GEORGE-BROWN

And Australia, my Lords!

BARONESS YOUNG

My Lords, my advisers have consulted the Scottish Office and their advice is that it should extend to Scotland. Perhaps I should comment on the argument adduced by the noble Lord, Lord Burton (if I understood it correctly), about the need of farmers and landowners to protect their land. This point seems to me to have been well met by Amendment No. 12, which deals with authorised persons. As my noble friend Lord Cranbrook has said, owners and occupiers have a right to protect their property, and in an area of special conservation if their crops were being damaged, under this Amendment they could of course kill or take a badger. I think this entirely deals with the point and I can only tell the House that the attitude of the Government on this is that there is no reason at all for excluding Scotland.

LORD CAMOYS

My Lords, may I remind your Lordships and the noble Baroness that the badger does 95 per cent. good and 5 per cent. harm?

LORD BURTON

My Lords, I apologise, as it would seem that I must have been incoherent when moving my Amendment, but I feel that the noble Lord, Lord Hoy, deliberately took my comments considerably out of context. With regard to the fluctuation of numbers, I referred to an overall increase although the numbers might go down in some years, and I never said that although it was all right for England it was not all right for Scotland. I gave various reasons why it was not suitable for Scotland. In particular I pointed out the serious trouble that we experienced with the killing of terriers, and I quoted one particular instance. I have no doubt as to your Lordships' feelings in this regard and naturally I shall not press the Amendment, but there will be a considerable problem in the remote areas. The noble Lord opposite is shaking his head; I should like to know how often he has been out fox killing in the West Highlands. The noble Lord, Lord Brown, called me an "old badger". I have never been called an old badger before although I have been called an old fox.

LORD HOY

My Lords, will the noble Lord give way? I never did him the privilege of calling him an old badger.

LORD BURTON

My Lords, again the noble Lord, Lord Hoy, has misinterpreted my remarks. I said that the noble Lord, Lord Brown, had called me an old badger.

LORD GEORGE-BROWN

My Lords, the noble Lord, Lord Brown, is not here. He will be furiously angry. I was only saying that a fellow whose father and grandfather took the water out of the Trent, did nothing to it and made millions, and left their sett behind them—which is what is left of the Trent—is not the fellow who should be arguing about the badgers leaving their empty setts behind them. That is all I said—and may I point out that my name is not "Lord Brown".

LORD BURTON

My Lords, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

THE EARL OF ARRAN

My Lords, Amendment No. 17 is a drafting Amendment. I beg to move.

Amendment moved— Page 2, line 45, leave out ("against this Act").—(The Earl of Arran.)

On Question, Amendment agreed to.

Clause 7 [Offender may be required to quit land]:

5.58 p.m.

THE EARL OF ARRAN

My Lords, when this Amendment was accepted during the Committee stage of this Bill, the noble Baroness indicated that it might be desirable if all the penalties were contained in one clause. This Amendment and Amendment No. 22 are drafting Amendments for the purpose of achieving this. I beg to move.

Amendment moved— Page 3, line 8, leave out from ("offence") to end of line 9.—(The Earl of Arran.)

BARONESS YOUNG

My Lords, as the noble Earl has just said, this matter was discussed at Committee stage and I then indicated that it would be better to have a separate clause for offences rather than to have one of them, as it were, as a sentence at the end of another clause dealing with something else. Amendments Nos. 18, 19 and 22 meet this point and I am glad to support this Amendment.

On Question, Amendment agreed to.

THE EARL OF ARRAN

My Lords, as the noble Baroness has suggested, I propose to move Clause 7 to a more suitable place; namely, after Clause 4. Your Lordships will realise that it is taken from a Bill which is before another place at this time. It is the trespassing clause, and it seems to fit very suitably with the offences clause, rather than where it at present stands in isolation. I beg to move.

Amendment moved— Transpose Clause 7 to after Clause 4.—(The Earl of Arran.)

On Question, Amendment agreed to.

Clause 8 [Enforcement, penalties, etc.]:

THE EARL OF ARRAN

My Lords, this is a drafting Amendment. I beg to move Amendment No. 20.

Amendment moved— Page 3, line 11, leave out ("against") and insert ("under").—(The Earl of Arran.)

On Question, Amendment agreed to.

LORD ALLERTON

My Lords, this is another drafting Amendment which is designed to improve the Bill. I beg to move.

Amendment moved— Page 3, line 12, leave out from ("or") to ("and"), and insert ("article which that person may have with him",).—(Lord Allerton.)

THE EARL OF ARRAN

My Lords, I strongly support this Amendment. We can put all the animals, vehicles, and so on under one umbrella phrase. It is a simplification.

BARONESS YOUNG

My Lords, this is a very neat drafting Amendment and one which the Government are glad to support.

On Question, Amendment agreed to.

6.0 p.m.

THE EARL OF ARRAN

My Lords, Amendment No. 22 again is the Amendment to which the noble Baroness referred, intending to bring the penalties under one clause. I beg to move.

Amendment moved— Page 3, line 19, leave out from ("offence") to end of line 20, and insert—

1. ("(a) under section 7 of this Act shall be liable on summary conviction to a fine not exceeding £20.
2. (b) under any other section of this Act shall be liable on summary conviction to a fine not exceeding £100:").—(The Earl of Arran.)

On Question, Amendment agreed to.

THE EARL OF ARRAN

My Lords, Amendment No. 23 is a drafting Amendment. I beg to move.

Amendment moved— Page 3, line 23 after ("under") insert ("paragraph (b) of").—(The Earl of Arran.)

On Question, Amendment agreed to.

THE EARL OF ARRAN

My Lords, Amendment No. 24 is again a drafting Amendment. I beg to move.

Amendment moved— Page 3, line 27, leave out ("against") and insert ("under")—(The Earl of Arran.)

On Question, Amendment agreed to.

THE EARL OF CRANBROOK moved Amendment No. 25:

After Clause 8 insert the following new clause:

Interpretation.

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

"authorised person" means—

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

so, however, that the authorisation of any person for the purpose of this definition shall not confer any right of entry upon any land;

"badger" means any animal of the species Meles meles."

The noble Earl said: My Lords, this is the Amendment to which I referred at an earlier stage and to which I do not think I need refer any more. It is self-explanatory as your Lordships read it, save perhaps for paragraph (b) which refers to a "local authority" and is to meet the case of certain commons, not the commonable commons which one finds in the North of England where probably the Lord of the Manor is the appropriate person, but there are certain commons where at the moment the rural district council is the appropriate authority. This will probably have to be amended in some way because the rural district councils will be responsible for it until April, 1974, when the new district councils will become responsible. That, I suspect, will have to be done by some method other than by this Bill at the moment, but it is to meet those cases that the words "local authority" are put in. I beg to move.

THE DEPUTY SPEAKER

My Lords, we now have Amendment No. 26, which is an Amendment to Amendment No. 25.

THE EARL OF ARRAN moved Amendment No. 26: Line 2, at end insert (""ammunition" has the same meaning as in the Firearms Act 1968;").

The noble Earl said: My Lords, I support the Amendment moved by the noble Earl, Lord Cranbrook, subject to my own Amendments Nos. 28 and 29. The noble Earl has defined "the authorised person". He (that is, the authorised person) is precisely what the Amendment states, subject to my own Amendments. In addition, the noble Earl has the denial of the right to trespass, which again I support. But now, on my own Amendments Nos. 28 and 29—are we discussing those Amendments?

THE DEPUTY SPEAKER

Amendment No. 26.

THE EARL OF ARRAN

I am sorry, my Lords, we are discussing Amendment No. 26 now. That is consequential and I beg to move.

BARONESS YOUNG

My Lords, this Amendment in fact seeks to insert a paragraph which would prohibit the use of certain firearms and ammunition for the purpose of killing badgers, which is the Amendment which has already been passed; namely, Amendment No. 7. It is necessary, therefore, now that this has been agreed, to define the terms "firearm" and "ammunition" and this is achieved by these Amendments, to which the Government have no objection.

On Question, Amendment to Amendment agreed to.

THE EARL OF CORK AND ORRERY, moved as an Amendment to Amendment 25, Amendment No. 27: Line 4, after first ("or") insert ("legal").

The noble Earl said: My Lords, I am told by an authority whom I should be inclined to accept without argument that this Amendment is unnecessary, but as it is on the Order Paper I should probably do well to put it to your Lordships. It is intended to insert the word "legal" before the word "occupier" in subsection (a) in my noble friend's Amendment so that it reads "the owner or legal occupier", the point being that, to my mind at any rate, an occupier may be a squatter, a gipsy or somebody who is simply occupying the land. On the other hand, for all I know it may be that "occupier" is itself a legal term and that to insert the word. "legal" would be an act of tautology and quite unnecessary. I think I am right in saying that my noble friend drafted these words into his Amendment as a direct copy of words that appeared in the Protection of Birds Act. That does not mean that they are necessarily perfect. There may have been an error in that Act, for all I know. I should like guidance in this matter, perhaps from my noble friend on the Front Bench.

THE EARL OF CRANBROOK

My Lords, I am informed that "occupier" is a perfectly normal legal word. It means what it appears to mean and comprises what it appears to comprise. This addition of the word "legal" is totally unnecessary. The noble Lord, Lord Foot, has now gone, so perhaps the noble Baroness would let us know whether I am correct in my assumption?

LORD LOVAT

My Lords, I am in full agreement with all these Amendments. Some of us are becoming slightly confused by the term "authorised person to kill badgers when necessary". As I see it, authorised people are owners or occupiers. I hope that one can have the assurance that a keeper or a shepherd would be an authorised person, because clearly they do it a great deal better than an owner or an occupier. Is that implicit in the Amendment by the noble Earl, Lord Arran?

LORD HOY

My Lords, I agree with the noble Earl, Lord Cranbrook, that it is always difficult, although I do not always agree that when we get legal opinion in your Lordships' House it is always correct. Very frequently their Lordships make mistakes the same as ordinary mortals. But I am certain that it would be to the benefit of your Lordships' House if the noble Baroness could give us the interpretation placed on it by the Home Office. Certainly it will help to clear our minds and certainly it will also take up less time if she were to do so now.

BARONESS YOUNG

My Lords, my advice is that the term "occupier" is used in a number of Statutes and it is normally understood to mean the rightful occupier. It is therefore unnecessary to qualify the term. The expression "legal occupier" has no clear meaning and it would be much better to rely on the previous interpretation of the term "occupier", otherwise there could be very considerable confusion. In fact, if my noble friend Lord Cork and Orrery wishes to pursue this Amendment, the word "legal" ought to be put in the following line in front of the word "occupier" as well; otherwise he would be using "legal occupier" in line 4 and "occupier" in line 5. That would make for even further confusion. I should tell the House that this is not an Amendment that would be acceptable to the Government, and I hope that, my having explained this point, the House will understand why.

THE EARL OF ARRAN

My Lords, would it be in order for me to answer the question asked by the noble Lord, Lord Lovat, although we were talking on two different things? He asked who would be entitled to take a badger. The answer is that the owner or occupier of land, his servant and—if your Lordships accept my next Amendment—any person authorised in writing by the owner or occupier. I am sorry to break the thread of conversation, but I thought that I should make that quite clear.

THE EARL OF CORK AND ORRERY

My Lords, that is quite clear. I beg leave to withdraw the Amendment.

Amendment to Amendment, by leave, withdrawn.

6.10 p.m.

THE EARL OF ARRAN moved, as an Amendment to No. 25, Amendment No. 28: Line 4, leave out ("persons shown to have been authorised by") and insert ("servant of").

The noble Earl said: my Lords, this Amendment is connected with Amendment No. 29. It provides that the employee of the owner or occupier of land may act on his behalf, as would seem quite proper. In regard to Amendment No. 29—and the House will correct me if I am wrong in speaking to Amendment No. 29 also at this moment—I am particularly enthused by the words "new paragraph" which makes it necessary for an unauthorised person to get permission in writing—I say again, my Lords, "in writing"—from the owner or occupier. This will, to some extent at least, prevent the casual digger or taker from going about his fell work on the strength of a real or imaginary telephone call. It is, to my mind, an additional deterrent, and I recommend it to your Lordships. I beg to move.

THE EARL OF CRANBROOK

My Lords, I hope your Lordships will accept these Amendments. They are an improvement on mine, and they are, I think, the one thing which has enabled us all to coo like sucking doves over this last stage of the Bill.

THE EARL OF CORK AND ORRERY

My Lords, I wonder whether I might venture to make a point? Is it quite right yet, to say "servant of"? I am entirely in favour of the intention of the Amendment, and entirely at one with what my noble friend Lord Lovat said about gamekeepers and so on. But there are servants and servants. It seems to me that what is required here is something to make the point that the employee concerned—which I think is a better word—is acting with the authority of the owner who gives him the instruction. Otherwise it is possible for a man or a woman employed, say, as a gardener or a billiard-marker or whatever it may be, to persecute the badgers and to be justified in so doing under this Bill on the grounds that he is in fact a servant of the person on whose property the action takes place. That seems to me not to be the intention of the Bill, and it ought to be narrowed somewhat. Perhaps the noble Earl would consider holding this one in suspense.

BARONESS YOUNG

My Lords, the effect of these Amendments is to tighten up the definition of "authorised person". The Amendments split into two parts the first paragraph of the definition of Lord Cranbrook's Amendment. The first would cover owners or occupiers of land on which the action authorised is taken and their servants, and the second would cover any other person authorised in writing by the owner or occupier of land on which the action authorised is taken. As I understand it, this would mean that anyone other than the owner of occupier or his bona fide employee would need to be in possession of a written note specifically authorising him to kill or take badgers on that land. I hope that will answer the point of my noble friend Lord Cork and Orrery. Its effect would be to strengthen the means of enforcement against trespassers operating on land without proper authori- sation by the owner or the occupier. But at the same time it would not detract from the owner's or occupier's freedom to authorise anyone he wished to kill or take badgers on his land. My information is that neither the Ministry of Agriculture, Fisheries and Food nor my Department has any objection at all to this proposed alteration or to these Amendments.

On Question, Amendment to Amendment agreed to.

THE EARL OF ARRAN

My Lords, I have already spoken to Amendment No. 29. I beg to move.

Amendment to Amendment moved— After paragraph (a) insert the following new paragraph— ("(aa) any person authorised in writing by the owner or occupier of any land on which the action authorised is taken;")—(The Earl of Arran.)

On Question, Amendment to Amendment agreed to.

THE EARL OF ARRAN

My Lords, Amendment No. 30 is consequential. I beg to move.

Amendment to Amendment moved— After the definition of ("badger") insert— (""firearm" has the same meaning as in the Firearms Act 1968;")—(The Earl of Arran.)

On Question, Amendment to Amendment agreed to.

THE DEPUTY SPEAKER

My Lords, the Question is that Amendment No. 25, as amended, be agreed to.

LORD SOMERS

My Lords, before we agree to this, which I may say I wholly accept, could I just make quite certain that this provides a means of controlling badgers where they have over-populated?

THE EARL OF CRANBROOK

My Lords, that is the intention. I should have thought it is bound to do it. It leaves it in the hands of the owner or occupier, who is the man who is most likely to be affected by too great a population, and he will be able to do it. I think we must bear in mind that it is possible for a man to allow animals which are becoming pests to increase so much that they become pests to his neighbours. The badger is not specified in the appropriate section of the Agriculture Act 1947 as one of those animals which the Ministry of Agriculture can order a person to destroy if they are doing damage, but there is provision in that Act for the Minister to add other species to those specified in the Act at the moment. I have no doubt that the Minister or the Secretary of State has power to order a person who keeps too many badgers on his land, and doing damage to his neighbours, to destroy them, if he is refusing to do it himself.

On Question, Amendment No. 25, as amended, agreed to.

Clause 9 [Short title, extent and commencement]:

THE EARL OF ARRAN

My Lords, I think it would be administratively inconvenient if this Bill, if it becomes an Act, were to come into force within one month. Many people might be engaged on many useful and important projects. I think probably the Home Office may feel that six months is necessary before the Act comes into force—I ask the noble Baroness. I beg to move.

Amendment moved— Page 3, line 34, leave out ("one month") and insert ("six months").—(The Earl of Arran.)

BARONESS YOUNG

My Lords, I hope very much that the House will agree to this Amendment, because Amendments have been made to the Bill prohibiting the possession of live badgers except under licence. Anyone, therefore, who has a live badger in his possession when the Bill is passed will have to obtain a licence, or dispose of the badger before the date when the Act comes into effect. One month is really a very short time for this to be done and for the licensing machinery to be set up. Six months is a much more realistic period. I therefore support this Amendment.

On Question, Amendment agreed to.