WILD CREATURES AND WILD PLANTS PROTECTION BILL

HL Deb 19 April 1975 vol 360 cc1130-68

8.26 p.m.

The Earl of CRANBROOK

My Lords, I beg to move that this Bill be now read a second time. This Bill was introduced into another place by Mr. Peter Hardy who, as your Lordships will remember, was responsible for a Badgers Bill which amalgamated with that of the noble Earl, Lord Arran, and was passed into law a couple of years ago; so conservationists generally have a second reason to be grateful to Mr. Hardy.

This Bill is an amalgamation of the Wild Plants Protection Bill and the Conservation of Wild Creatures Bill, two Bills to which your Lordships gave a Second Reading earlier in this Session. I do not propose therefore to weary your Lordships with exactly the same observations that you heard last time in extenso; they must be fresh in your memories. I propose however to remind your Lordships of the underlying principles. I will then draw your Lordships' attention to such differences as are of importance between this Bill and the original Wild Creatures Bill; and the noble Lord, Lord Beaumont of Whitley, will do the same with the Wild Plants Bill, for which he was responsible. Earlier conservation legislation was designed to defend birds and their eggs which were already rare, and as such were objects of desire to unscrupulous collectors, and from becoming more rare by being collected and sold. Many of these species, as your Lordships will know, were brought to the verge of extinction, and some indeed became extinct altogether in this country.

That was followed by Bills giving seals complete protection where necessary, and then came the Badgers Bill under which it is possible to give badgers complete protection. But no other wild creatures and no plants can be given complete protection, however much that is necessary. This Bill is intended to fill the gap.

If your Lordships will turn to Clause 12 you will see that any species of our entire fauna and flora which—and I quote: has become so rare that its status as a British wild creature or plant is being endangered by any action designated as an offence under this Act "— that is to say by the killing, taking or selling of wild creatures, or by the picking or uprooting of wild plants—can be put in the Schedules and given complete protection. That is why such wild creatures as are already in the Schedule are there. All are rare and as such desirable things for unscrupulous collectors. It is because they are already rare this collection would make them even more rare.

In some trade papers your Lordships may read of advertisements by collectors, offering for sale the skeletons of the greater horseshoe bat to schools and the like. There are advertisements by pet shops offering to buy dormice and smooth snakes and the like, because they are already rare and can be sold at a high price to people who do not realise what they are buying them for.

In addition in Clause 12 your Lordships will read that if an animal becomes so common that it no longer needs protection it may be removed from the Schedule and no longer given the protection which it needed formerly. That is the modern principle of conservation—trying to manage wild populations as a farmer would his domestic stock. That is why the part of this Bill referring to wild creatures was called a conservation Bill, and both the noble Lord, Lord Beaumont, and Mr. Hardy accept the fact that this is a conservation Bill and should be so entitled. I shall move an Amendment to that effect in Committee.

So much for the fundamental principles of this Bill, principles which your Lordships have already accepted. I need not weary you with any further explanation of the inevitable sequelae of that principle which come in the other clauses. There are a good many changes in the wording, improvements in general of the wording of the Bills on which this Bill was founded. So far as wild animals are concerned there are three significant changes to which I think I should draw your Lordships' attention. The first one, relatively minor, is in Clause 3, under which originally all mammals as well as protected wild creatures were defended against being ringed or marked by people who did not know what they were at, and under the Bill it was allowed only under licence. That is now confined to bats, I think sensibly, because they are the only wild ceatures, other than the protected ones, which are likely to be at risk if subjected too often to that sort of interference.

Clause 15 is interesting because it now brings in parish or community councils for the first time in a Bill of this nature. It authorises them to take such steps as they think necessary to bring the Bill to the attention of people in their areas, and I look forward with considerable hopes to parish councils, which, after all, are much closer to the ground—and it is the ground actually and not figuratively which matters in this case—than are the larger authorities, watching over the wild life in their parishes and taking every action they can to protect it. There is a new provision in Clause 16 which I think is the only controversial addition that has been made to the Bill. Your Lordships will remember that when the Badgers Act was going through this House the Minister told us that in certain parts of the country badgers had been found to be infected with bovine tuberculosis. In addition, all of us knew that there was a risk of sylvatic rabies breaking out in this country, when every rabies-susceptible animal, including badgers, would have to be killed for a considerable area around the original outbreak to prevent spreading. A clause giving the Minister power to licence the killing of badgers in order to prevent the spread of disease by any means specified in the licence was therefore introduced into the Badgers Act and passed without any opposition. That phrase seems clear enough, but it has subsequently been found that it is overridden by the provisions of the Protection of Animals Act 1911 and it is illegal to use poison, including using poisonous gas for the killing of badgers, which many people think is the most humane way of doing it. This clause was introduced in another place as a Government Amendment.

There are people who look upon this new clause from diametrically opposite positions. There are those who accept it, who feel that it is a more humane method of killing badgers, who accept the fact that it is to be used only in this one single case—I do not mean individual case but one single instance of the necessity to kill animals to prevent the spread of disease—and who are therefore ready to accept it. On the other hand, there are people who feel that it opens the door to the use of poisons on badgers and indeed other animals, other than those which are specified in the Protection of Animals Act; that it opens the door to the use of gas and other poisons on other animals and that it may be impossible, once the door is open, to close it again. They are two points of view which do not really concern us today, but I think your Lordships should have your attention drawn to them. Doubtless we shall discuss the matter in Committee and your Lordships will then decide.

My Lords, I have not explained the Bill at great length, but if any of your Lordships feel that I should have done so I hope you will raise any points and if there are any questions which I can answer when I come to sum up, I hope they will be put to me. I hope that even with this rather inadequate explanation of the Bill your Lordships will remember what we have already done, because if this Bill is passed, giving us this power to offer protection to our entire fauna and flora, we shall have a series of conservation measures, with this one as the coping stone, which will be second to none in the world. I beg to move.

8.35 p.m.

Lord BEAUMONT of WHITLEY

My Lords, we are all extremely grateful to the noble Earl, Lord Cranbrook, for having introduced the Bill into this House, as he has so many other conservation measures in the past. I particularly owe a debt of gratitude to him for having now formally taken my part of the Bill under his wing—it was always informally very much under his wing. I have benefited greatly from his advice and tutelage, and I am delighted that he has introduced the whole Bill into your Lordships' House. It is the second time that the noble Earl has introduced the wild creatures part of the Bill, it is the third time that I have introduced the wild plants part of it, and therefore I imagine that your Lordships will be gratified if I do not repeat my speech once again for the third time but keep my remarks short, so following the pattern set by the noble Earl, Lord Cranbrook.

The principle behind the Bill is quite simple. There is a continuing deterioration in the position of a large number of species of wild plants. A typical case history is that changes in land use diminish the occurrence of a plant very drastically; this leads to scarcity which, as in the case of creatures, as the noble Earl said, then leads to collectors, and that in turn leads to extinction. This Bill will do two things—or at least the plants side of the measure will. First, it will give protection to all plants from being uprooted by anyone who is not authorised to do so; by anyone, that is, who is not their owner or an agent of the owner of the land on which they grow. Second, it will Protect the rarest plants of all, those which are in real danger of extinction, from all forms of damage.

I think it is almost as important to say what the Bill will not do, because there has been a certain amount of misunderstanding about this among the general public. No one is prevented from picking any plants by this Bill, except for the 20 rarest wild plants, and these, by their nature, are very seldom come across. Everyone is protected from an offence committed by mistake; if people do not know what the rarest wild plants are, then they are protected if they pick them by mistake. It is unlikely to happen in fact because one of the characteristics of these wild plants is that they tend to be in very inaccessible and often unattractive areas. That is possibly one of the reasons why they have still survived in those areas when they have been wiped out elsewhere. A large number of them are not even very attractive to look at and therefore I feel that the risk of anyone even straying into the danger area of committing an offence is very small; but even if he does he is protected by the Bill. Nobody is prevented from doing anything that he wants with the wild flowers or wild plants on his own land, except for the [...]arest 20, and even then he can, alas!, if he needs to, do so in the course of agriculture. So although it is occasionally said to have dangerous implications for civil liberties and to stop little children from picking flowers, it does nothing of the sort. It is an extremely mild Bill.

I would mention two major differences from the previous Bill. We have left out part of one clause which dealt with the Nature Conservancy Council. Under the old Bill, people were protected when dealing with the rarest plants—that is, the plants on the Schedule—if they were doing anything in furtherance of any obligation imposed, or the exercise of any powers conferred by or under an Act of Parliament. This also applies in the present Bill, but we had a proviso in the last Bill which provided that, if an owner or occupier of land within a site of special scientific interest, who has been informed in writing by the Nature Conservancy Council within the previous 12 months of the site within that land on which a protected plant is growing, carries out work which results in the uprooting or destruction of any protected plant, he shall be guilty of an offence against this section unless he has given notice in writing to the Nature Conservancy Council of his intention to carry out such work not less than 28 days before the commencement of the work. The point of that provision was that people were able to destroy even the rarest plants if they could say that they were doing it in the exercise of any powers conferred, by or under any Act of Parliament. Acts of Parliament give a great deal of power to a great many people.

We thought that there should be some safeguard against this provision being abused. Therefore, we worked out this machinery to give notice to the Nature Conservancy Council of such acts or works and to give the Council and anyone else concerned, such as the Botanical Society of Great Britain, the chance to make representations, to argue, if necessary to try to bribe and if absolutely necessary in the last resort to try to transplant the plant in question before it was destroyed. That provision has not been included in the Bill but we very much hope that it will go in at a later stage. We are at present waiting for a statement by the Minister about the attitude of the Nature Conservancy Council on the matter. I do not know whether he will be making it this evening or at the Committee stage, but I am sure that we should have something like this in the Bill.

That is the major difference. The second difference is that of additions, actual or possible, to the Schedule. The Schedule originally consisted of 20 plants. There is an illustrated guide which I have deposited in the Library of your Lordships' House. It gives the names and pictures of those 20 plants. Since then, however, the fingered sedge has been included as the twenty-first such plant. In addition to growing in the constituency of Mr. Peter Hardy, who moved the Bill in another place and to whom our very warm thanks are due for his work on this Bill as on previous conservation measures, this is a borderline case. I am not at all sure whether it should be included. It is undoubtedly decreasing, but whether it is as rare as to have reached the danger stage or not is a matter which can be argued by the experts among your Lordships at the Committee stage.

Almost the same applies to the field cow-wheat, which is a plant which was mentioned in another place by Mr. Stephen Ross, the Member for the Isle of Wight. Again, it grows in his constituency. It is undoubtedly fairly rare but, again, it is a borderline case. The Government have promised to come back to us with a comment on this and a decision on the matter. I hope that they will make that decision on the basis of whether or not the plant is rare and not on whether it is or is not a weed. This is a Bill to preserve rare species, regardless of whether humans, regard them as flowers or weeds.

Both the matters which I have mentioned can be argued, and no doubt your Lordships will produce other Amendments to the Schedule at the Committee stage. I should just like to make one plea. I am sure that we are right, both in the Part of the Bill which deals with wild creatures and in that which deals with plants, to make the Schedules of those which are to receive as near absolute protection as we can give them as small as possible. I am sure that it is desirable to confine it to those creatures and plants which are in genuine danger of extinction. If we start to go beyond that principle we shall destroy half the point of the Bill and, certainly, the basic agreement which has been reached by all Parties as to what the Bill should be about. Therefore I hope that your Lordships will, when it comes to the Committee stage, consider the possibility of adding anything to the Schedules strictly on this basis, remembering of course that the Bill gives the Secretary of State powers to add to, to remove from or to alter the Schedule at any time. My Lords, I am grateful for the opportunity to take part in putting the Bill forward to your Lordships' House. I am grateful to all those who have helped me on very unfamiliar territory, and I commend the Bill to your Lordships' attention.

8.48 p.m.

Lord MOWBRAY and STOURTON

My Lords, I believe that the whole House will be grateful to my noble friend Lord Cranbrook and the noble Lord, Lord Beaumont of Whitley, for introducing the Bill. This joining up of the two Bills which we discussed previously makes very good sense. It is also satisfactory to have had the explanations repeated in a simpler form than previously. Also, I am glad to see that the foster father of the Wild Creatures Bill, the noble Lord, Lord Wynne-Jones, is here to speak again.

In the earlier debate on the Wild Creatures Bill, I asked what the Bill was being used for and if there was some hat to be hung on a peg. Little did I think that Clause 16 would be the hat to go on the peg about which I was asking. Clearly, that will upset some people. I believe that it is important to recognise that, as my noble friend Lord Cranbrook has said in the past, it is sometimes necessary to cull to improve a species. We had this in the Seals Bill. For instance, if in certain areas there are badgers which are suffering from bovine tuberculosis, not only is there the possibility—which your Lordships may argue about in one way or another, though I think on balance that the evidence tends to show it—that they are causing infection to some cattle, but if they are suffering from bovine tuberculosis, as the evidence shows that in certain areas, in Dorset, Devon and Gloucestershire, 20 per cent. of them at least are so suffering, it may be in their own interests for them to be reduced. Then badgers would be a healthier species which would survive longer in the long run. So it is important not to say that every time the Minister, having taken careful advice, gives consent to his experts for the putting down of an infected species, it is necessarily bad for the species.

The clause which my noble friend Lord Cranbrook picked out and which deals with parish councils having a "watchdog" power in their villages I find very useful. This may be coupled with Clause 13. That is the clause which requires local councils to draw these matters to the attention of schoolchildren. These clauses will be the nub of the Bill. We should interest the young in this subject, which is fascinating. Botany classes could be assisted by the use of simple pictures of some of the species and plants. I hope that the Government will give every encouragement to local councils to carry out their functions in this regard and that parish councils will, in turn, nudge other local authorities.

My Lords, the noble Earl will have taken the point about my interest in bats. I am glad to see that they still have their immunity from being tagged or ringed. Whether our friend the natter-jack toad will be happy at having his immunity from this practice removed, I do not know. I was glad to hear what the noble Lord, Lord Beaumont of Whitley, said about adding and removing from the plant life. If there is a doubt, it is right to include the plant or species which may be in danger. As the noble Lord said, it can always be changed later. Of course, if one becomes stupid and has too large a list, it will suffer by being disregarded. But it must be right to include borderline cases. I am grateful to both noble Lords for having said what they said.

8.51 p.m.

Lord WYNNE-JONES

My Lords, it is a pleasure to rise to support this Bill, and it is a particular pleasure to welcome back the noble Earl, Lord Cranbrook, for whom I had to deputise on 21st November. I am glad that I have not been obliged to deputise for him on this occasion, because his ability in this field is so outstanding. It is always a pleasure to listen to him on this subject. The Bill is a composite of two Bills which have already been before your Lordships and, clearly, it does a highly important job. Its job is to conserve, to look after, the wild life of this country. This matter is of considerable importance to us all, because it concerns part of our heritage. All sorts of things take place which may, at times, be unfortunate. I recollect many years ago being told about a well-known naturalist of some academic standing who claimed to have found a new species of plant on an island off the Scottish coast. However, it was later suspected—and, in fact, clearly shown—that he had himself imported the species. He had taken the species over to the island where he had later "found" them. This sort of trickery may occur, but it should not have any influence upon us when we consider how we wish to conserve the wild life of this country in the future.

As the noble Lord, Lord Mowbray and Stourton, said, there was on a previous occasion a certain amount of banter and play about such things as the great horseshoe bat and, I think, the natterjack toad. Such matters were discussed in an air of amusement. We may laugh about such things in that sort of way, but we all know that it is an extremely important matter from the point of view of conservation. I call the attention of your Lordships to the fact that this Bill which we hope—and are reasonably confident—will become the law of the land is a companion to another Bill, the Endangered Species Bill, for which I had to carry the responsibility.

There is sometimes a little confusion in the matter, so I should explain that this Bill deals entirely with species indigenous to this country, whereas the Endangered Species Bill deals with trade, with the import and export of species all over the world. When your Lordships gave a Second Reading to the Endangered Species Bill, my noble friend Lord Melchett gave an assurance—which I have since had confirmed in writing by another Minister of the Crown—that it is the intention of the Government to see that the Endangered Species Bill is made effective, in one form or another, preferably by the autumn, but certainly by the end of this year. Therefore, when this Bill is passed and when the Endangered Species Bill—in one form or another—is passed, we shall have a clear set of legislation which makes it possible, first, to ensure that within this country our own native species are conserved; and, secondly, that we, as a country, are playing our part in ensuring that throughout the world endangered species are looked after, and that we do not allow an immoral trade in them. My Lords, I strongly commend this Bill to the House.

8.57 p.m.

The Earl of ARRAN

My Lords, with great respect to the noble Earl, Lord Cranbrook—whom, I am sure, we are all delighted to see—and to my noble friend Lord Beaumont of Whitley, this Bill is, frankly, a bit of a mess. It is an attempt to bring together the protection of wild plants and wild animals—two entirely irrelevant and inconsequent species. One might have thought that more urgent business would have concerned your Lordships. But it is one of your Lordships' splendid traditions to discuss minutiae, even though our country is in danger; in other words, to fiddle, one might say, while there is a strong sense of burning. For instance, on Friday, 1st September 1939, two days before the opening of hostilities, your Lordships were actively engaged in considering a Bill concerned with restrictions on loans and mortgages on which no doubt many noble Lords felt strongly. In other words, whatever the circumstances, we managed to "keep our cool ".

I am not concerned with the protection of wild plants. It is to my shame that I confess to knowing little or nothing about them, though naturally I wish them well. Wild animals, alas! are an entirely different matter. Having introduced the Badgers Act it is now my duty to see that it is not undermined. This is exactly what it is proposed to do by a seemingly innocent Bill which has suddenly become a matter of significance and now contains the sinister Clause 16. This is a complicated matter and I shall try to be as simple as I can in dealing with it. In Clause 16 the Government seek to make it a defence in proceedings under Section 8(b) of the Protection of Animals Act 1911 or Section 7(b) of the Protection of Animals (Scotland) Act 1912—each of which restricts the placing on land of poison—if the act alleged to constitute the offence was done under the authority of a licence granted by the Minister (under paragraph (d) of subsection (1)), and any conditions specified in the licence were complied with. If I have got it wrong, perhaps the Minister will correct me. It is a very complicated business. This subsection is one which empowers the Minister to kill or take protected wild animals within a specified area by any specified means. Note the absence, incidentally, of a clause which in the Badgers Act forbids the cruel ill-treatment of any badger.

This masterpiece of draftsmanship I find totally confusing, but it boils down to this. The Minister is seeking powers to eradicate all badgers in all areas where they are suspected of spreading bovine tuberculosis. The badger, the largest animal involved, is seemingly to be poisoned where and when and by whatever means it occurs to the right honourable gentleman to do so. Small wonder that the noble Lord, Lord Mowbray and Stourton, said of the Bill on its previous Second Reading that he found it impossible to believe that this list of six animals and one insect—he was corrected by the noble Lord, Lord Wynne-Jones, on this—could constitute a full-blooded Act of Parliament. I think he has changed his mind since then.

The simple question for your Lordships is this. Is it the badgers which infect the cattle or is it the cattle which infect the badgers? No one knows for certain the answer. There is said to be circumstantial evidence in favour of the badgers being the miscreants, but no Minister has said categorically that there is proof. How can he do so when there is none? Please note that we are erroneously talking about bovine tuberculosis when we should be talking about badger tuberculosis.

Lord WYNNE-JONES

I hope the noble Earl will forgive me, but surely the control of bovine tuberculosis is relatively easy; the control of badger tuberculosis is something of which we are incapable. We have no control over the badgers. So far as I am aware, there are no herds of badgers.

The Earl of ARRAN

My Lords, no doubt the noble Lord is thinking of 1950 when almost all cattle with the disease were eradicated. It is true that badgers are very hard to detect and their spoor or faeces may be more difficult to find. To that extent I agree with the noble Lord, Lord Wynne-Jones.

In a letter the Minister, who has been most courteous to me in this matter, said: By now it is of course quite widely accepted "— "By whom?" one asks oneself— that badgers do get intected with bovine tuberculosis and could transmit it to cattle. My officials "— the right honourable gentleman is referring to his officials— have discussed this in depth with representatives of the RSPCA, the Universities Federation for Animal Welfare, the British Veterinary Association and the Mammal Society. I think the Minister has got the position a little askew.

I am authorised to say on behalf of the RSPCA that they have told the Minister that they accept, "albeit reluctantly ", the statement made by Dr. Gavin Strang in another place. They add that they do not wish to see badgers killed, most of all by snaring; but they would accept hydrogen cyanide as a humane method of gassing. The Minister has made it clear to me that he still insists on snaring, which he must know is the cruellest method of extermination available to him. As to the British Veterinary Association, I quote their highly authoritative analysis which ends with the words: However, badger infection is probably concentrated in isolated pockets of the population, and any indiscriminate slaughter of this species in the hope of removing the reservoir of infection would be quite unjustified. Further work is needed to determine the most reliable means of identifying infected badger communities. My Lords, I shall listen with the greatest respect and attention to the speeches. which are yet to be made, and I look forward to the Minister's reply. I hope particularly to hear from him that he has incontrovertible proof that the badgers are responsible. In passing this Bill—which I am sure we shall, and I hope we shall—I would humbly ask your Lordships to put to yourselves the question commonly put to jurors. Are your Lord-shops convinced beyond all reasonable doubt that the badgers and not the cattle are at fault, before passing sentence of death on these wretched animals? I should add that in the Committee stage we shall naturally be proposing Amendments to Clause 16 for which, to my mind, there is no possible justification. My Lords, whatever the noble Lord, Lord Wynne-Jones, has said, this is not the end of the affair.

9.8 p.m.

Lord BIRKETT

My Lords, I shall not weary your Lordships long with comments upon. this Bill which, as the noble Earl who preceded me said, is almost certain at this stage to pass. I should like to add something to what he said about the thoughts that your Lordships' might give to the Committee stage. I wish I could like the Bill better because there is so much about it that is likeable. But it is a shame that in a Bill which would command 99 per cent. of your Lordships' support, a controversial clause, or clauses, should have been allowed to stand; that the famous Clause 16 about badgers which, allied to Clause 8(1)(d) makes such a sinister impact upon those fond of the badger, should be allowed to spoil the Bill. Those not fond of those clauses would hate to be thought an enemy of the dormouse, the military orchid or the drooping saxifrage.

I do not wish to repeat the bantering tone of which your Lordships' House was accused in dealing with such matters earlier. But, at the same time to find only this bone of contention seems to me sad. I wish also I could have seen, and will see, some evidence to support the contention that bovine tuberculosis is directly and inevitably connected with badger tuberculosis. I wish also I could have seen some evidence about the relative cruelty or humanity of the various methods of dealing with the badgers if the unfortunate necessity of doing away with them be absolutely proved. Before and during the Committee stage I hope this evidence will be provided by the Government or by those who are actively sponsoring the Bill.

I cannot believe one could go on long about a Bill whose chances of success are at this stage so very strong; it would be a sad reflection on this House if the little worries which concern one or two of us 'were not cleared up by the Committee stage. In particular, somebody should say that it is important for the noble Earl, Lord Arran, that these points should be cleared up. He has fought so long in the teeth of such opposition and difficulty and, indeed, such incomprehension, for the badger he loves so well. It must be galling for him to find so soon after the success of his measures for the protection of the badger that suddenly another menace arises from a different quarter, a quarter that seems so harmless and well-intentioned towards wild flowers and creatures. I hope before the Committee stage a good deal more evidence will he provided.

9.10 p.m.

Viscount MASSER EENE and FERRARD

My Lords, I should like to thank my noble friend Lord Cranbrook for introducing this Bill and also to welcome him back to the House. We are glad to see him in such robust health after his illness. I welcome this Bill. I am worried, as are several other noble Lords, by Clause 8(1)(d) and Clause 16.

The Earl of CRANBROOK

My Lords, may I interrupt? There have been three successive speakers who seem to have misread Clause 16. It does not amend Clause 8 in any way; it merely amends the appropriate clause of the Badgers Act; it refers to the appropriate clause of the Badgers Act as being like one in this Bill. There is no amendment made by this clause to Clause 8 of this Bill; it merely refers to it as typical of the clause in the Badgers Act which it proposes to amend.

Lord BIRKETT

My Lords, since I think I was the first to make this point, may I be allowed to say to the noble Earl that I thought Clause 16, taken in conjunction wtih Clause 8(1)(d), in our view represented the danger to the badger.

Viscount MASSEREENE and FERRARD

My Lords, I too had the same view. May I make one or two observations on wild plants before coming to those clauses of the Bill? The great destruction to wild plants has been due to modern agriculture and forestry, and I am just as much to blame as anybody else who farms or plants trees. Your Lordships have only to recall your childhood or fly in a small 'plane across the Channel over to the Continent in the summer to see the wild flowers there. But the moment you approach England all you see is a dull green. This may not apply to the rare plants referred to in the Schedules to the Bill; but regarding plants as a whole this situation is clue to modern farming and the spraying that is indulged in. I have proved it countless times. The wild plants have gone. But this is not because the general public have uprooted them. If the general public are going to take plants, they usually just pick the flowers. They are usually attracted by primroses, bluebells and foxgloves, so in my view we cannot blame the public generally for the disappearance of plants—and certainly not for the disappearance of rare plants. I am surprised to hear that botanists dig up these rare plants. It seems absolutely disgraceful, and I had no idea that responsible botanists would do such a thing. However, we have heard from my noble friend behind me that this happens.

Lord BEAUMONT of WHITLEY

My Lords, if the noble Viscount will allow me to intervene for one moment, I can assure him that the practice referred to was widespread at one time and there was a period when almost every botanical laboratory, museum or university department felt they must have a specimen of every plant. Now this is very much on the decline. There are still a few such offenders, but on the whole most botanists have a clean bill of health.

Viscount MASSEREENE and FERRARD

My Lords, I am very glad to hear that from the noble Lord. He has referred, however, to a few botanists who still dig up plants. What troubles me is whether this Bill is going to stop people from doing such things. I do not know how they can be stopped, short of having a policeman hiding behind the bushes near to any rare plants. Might I just draw attention to Clause 4, which seems to me rather widely drawn, because it says that if … any person other than an authorised person without reasonable excuse uproots any plant, he shall be guilty of an offence. I agree that the interpretation of "authorised" is wide, but in going along a right of way a member of the public might uproot a dandelion. As I read this clause, that would be an offence. I think that perhaps some Amendment might be needed there.

As regards wild creatures, to some extent, again, their danger comes from modern farming methods. For example, I can remember that some 20 years ago on my lake in East Kent we had hundreds, if not thousands, of toads. It was quite a famous toad walk: in fact it was once recorded on the BBC. I have not seen a toad there for donkeys' years; and this I know comes from methods of chemical farming. I am probably just as much to blame as many other people, because I spray my crops. In terms of actual endangering the species, I cannot imagine members of the general public going round capturing toads; but to a certain extent I suppose spraying kills insects and therefore this will have a bearing on the greater horse-shoe bat and the mouse-eared bat. Spraying must surely have an effect on the survival of these creatures.

I should now like to turn to the controversial question of badgers. My noble friend behind me appears to think that these clauses do net really affect the position very much; but Clause 16, together with Clause 8(1)(d), will legalise the gassing of badgers if they are thought to be spreading disease. There is no doubt that to a great extent these provisions will nullify the Badgers Act of 1973. I would ask: is this Bill a sort of smokescreen to allow the Ministry of Agriculture or the Secretary of State for Scotland to kill any wild animal, on the assumption that it is spreading disease? No one could object 69 if it is absolutely proven that these animals are spreading disease; but I have been doing some research on this, and I understand that the Ministry of Agriculture now think that bovine tuberculosis among cattle is spread by badgers. I must say this is not really conclusive evidence, but perhaps I might just refer again to my own estate in East Kent, because in the park we have lots of badgers. We are probably the most "over-badgered" part of East England. I have one badger sett only about 50 yards from the cowshed and I have not had a reactor among cattle, certainly over the last 20 years.

Lord MELCHETT

My Lords, I wonder whether the noble Viscount would be very kind and let me intervene so that we may clear up this point straight away. Nobody has suggested that there is any bovine tuberculosis being spread by badgers in East Kent, or anywhere near where the noble Viscount lives. The outbreaks are restricted to small, particular areas of the country a long way away from Kent.

Viscount MASSEREENE and FERRARD

My Lords, I am coming on to that point in a moment, so the noble Lord need not have interrupted. I would quote the Veterinary Record of 14th December, 1974, which states—and I am coming on to the noble Lord's point now—as regards a map, Fig.1: The map shows locations of infected badgers and cattle herds. It is dealing with bovine tuberculosis— There is a line of farms right through the area from the Cotswolds escarpment to the Severn Estuary showing cattle herds infected with bovine tuberculsosis where origin is obscure ". It says, "obscure" That is from the Veterinary Record and it does not say that the origin is definitely badgers.

Lord MOWBRAY and STOURTON

My Lords, may I interrupt my noble friend?

Viscount MASSEREENE and FERRARD

Yes.

Lord MOWBRAY and STOURTON

My Lords, did my noble friend hear the noble Earl, Lord Arran? I think he gave the answer to this point at one moment in his speech. He said that the Royal Society for the Prevention of Cruelty to Animals, albeit reluctantly, accepted what Dr. Gavin Strang, who is Parliamentary Secretary to the Ministry of Agriculture. said in his speech in the Commons on 7th February. I think that if noble Lords would look at what Dr. Gavin Strang said they would see that the noble Earl has dealt with that point himself.

Viscount MASSEREENE and FERRARD

That may be, my Lords, but of course there are two sides to the question. I would say that the true vector or carrier of bovine tuberculosis has not yet been found. It may well be badgers—they may carry it—but I am also quite sure that other animals carry it. I would quote here British Mammals of 1952 by Harris and Matthews, page 177: Recently a form of tuberculosis has been found infecting field voles, bank voles, field mice, common shrews. It is the first naturally occurring tuberculosis disease of wild mammals to have been discovered. This infection can be carried from one animal to another in food or water contaminated by an infected one.

The Earl of ARRAN

And also, my Lords, by human beings.

Viscount MASSEREENE and FERRARD

My Lords, the noble Earl is quite right, of course; there is no evidence to the contrary. I have no objection to destroying all the badgers in an area if it is proven 100 per cent. by the Minister that they are infecting the cattle. But I do not consider the Minister of Agriculture has proved this 100 per cent. I can quote other observations by extremely eminent men. I do not want to keep your Lordships, but there is Dr. Littler from the West Country, a TB physician. He is a tuberculosis and chest physician, deputy superintendent of Hawkmoor Chest Hospital and tuberculosis officer for North Devon for many years. He does not agree at all with the findings of the Ministry. He says that in his opinion it is the cattle which give tuberculosis to the badgers, as my noble friend has said.

I have an estate on an island off the West Coast of Scotland and there have never been any badgers there in the history of that island. We have had wolves, foxes and everything else there but there have never been any badgers. But we had tuberculosis in cattle just as badly as any place on the mainland that had badgers. So this case is surely not proven, and I am surprised that a Government Department or Minister would give such an order if the case is not proven. It would fall down in a court of law; and what would fall down in a court of law should not be passed by a Minister. I know that it frequently is the case, but it should not be. Badgers do not occupy the same terrain as cattle. I know this, because I have many cattle. Badgers live in setts in woods and are very clean animals. They have latrines nearby, and it is very rare for a badger to make his droppings in the centre of fields. On the other hand, cattle get into woods only if there is a broken fence. I have practical experience of these matters and my experience tells me that the Ministry are being rather forceful.

I will not detain your Lordships any longer. Nevertheless, we ought to be careful because next year will be Animal Welfare Year. If we pass into law a Bill which gives to the Ministry of Agriculture and the Secretary of State for Scotland the power to destroy badgers on flimsy evidence, I do not think that the Government which passes such an Act will be very popular among animal lovers.

9.27 p.m.

Lord FOOT

My Lords, I hope that the noble Earl, Lord Cranbrook, my noble friend Lord Beaumont of Whitley and indeed, the noble Lord, Lord Wynne-Jones, will forgive me if I limit my congratulations to them upon getting this Bill so far. I am sure that it will have a successful outcome. If I limit those congratulations and thanks to the noble Lords to one sentence it is because I do not wish to take up more time than I need. Indeed, I shall confine my remarks to the implications of Clause 16 of the Bill. The questions that I wish to put to the House are questions which I shall address to the noble Lord, Lord Melchett, who is to answer for the Government, because the noble Earl, Lord Cranbrook, is not responsible for Clause 16. It is not his amendment; it is something which has been attached to the Bill on its way to this House.

First of all, it is important that we should understand exactly what Clause 16 does. Although my noble friend Lord Arran has said it is rather complicated, as I understand it the effect of Clause 16 is fairly simple. Under Section 9 of the Act of the noble Earl, Lord Arran, which is now the Badgers Act, where the Minister of Agriculture thought it necessary to prevent the spread of disease, he was authorised to issue a licence enabling the licensed person to kill or take badgers within certain specified areas by any method that the Minister might specify. However, it was found after the passing of the Badgers Act that even so the Minister was precluded from authorising the issue of a licence to allow gassing to be used, because that is prohibited under the 1911 Act. The reason why this amendment was introduced into this Bill was in order to get over that difficulty and enable the Minister, when he thinks it is right, to issue a licence permitting anybody who is authorised to do so to exterminate setts of badgers by means of poison. As I understand it, that is the effect of the clause.

It seems to me that there are two aspects of that which are worthy of some consideration and attention. The first is this. As has been said already, giving that power to the Minister and the necessity to do it is based upon an assumption, and the assumption has been repeated over and over again in the other House and here. The assumption is that in those areas where there is a high incidence of bovine tuberculosis the experts who are available to the Ministry and the Minister are of the opinion that the badger is responsible as the carrier. That is the assumption, and over and over again it has been stated in the other place and elsewhere that because in those areas where there is a high incidence of bovine tuberculosis in cattle you find there is a high incidence of tuberculosis also in badgers, it therefore follows from that relationship, that statistical fact, that the badger is infecting the cattle. Of course it is a complete non sequitur; it does not follow. It goes no way to prove that the badger is the carrier to the cattle. As my noble friend has said, it could he the cattle who are the carriers to the badgers. On the other hand, it could be a third thing. It could be that the cause of the tuberculosis in the cattle and in the badger is some third cause which has not yet been identified and that the cattle and the badgers are both the victims of that cause of which at the present moment we know nothing.

I say to the Government that it is simply not good enough to come to this House or the other House and say, "Our experts tell us that they believe there is a connection; our experts tell us that they believe that the badgers are the carriers and that they infect the cattle ". Respectfully, that will not do. What the Government must do if they want to satisfy the people who are concerned and alarmed about this matter is not to come and tell us what they are advised, what their experts say: they must give us their evidence. I hope that tonight when the Minister answers he will not stand up and say, "I am told by the RSPCA ", or "I am told by the veterinary surgeons that this is the case ". I want to know what the evidence is, and if there is no evidence that it certainly is the case, is not the Minister asking to be given these very wide powers without having proved to the satisfaction of reasonable people that the badger is the carrier of this disease? If they have not got the evidence, if in point of fact this is a vast error and the badger is not the carrier to the cattle, it will not be the first time that Government have made a silly blunder by relying upon expert evidence into which they have not sufficiently inquired.

The second aspect of the matter about which I want to say a word is this. Clause 16 as at present drafted, as my noble friend said, gives the Minister, on the face of it, the power to issue a licence to anybody to destroy badgers anywhere in the United Kingdom and to destroy them by any poisonous substance. But in the other place—and I have no doubt it will happen here tonight—various assurances were given by the Minister or by the Parliamentary Secretary (whoever it was) about the way in which the Minister intended to exercise these very wide powers which are being conferred upon him. 'Three assurances in particular were given. The first was that in spite of the fact that on the face of it this clause allows the Minister to licence anybody to use any kind of poison, the Minister would not consider allowing the use of anything except cyanide gas in the present state of scientific knowledge. unless something better or more humane turned up in future. That was the first assurance.

The second assurance was that the Minister would not give a licence to just anyone. In the ordinary way, he would only license an official of the Ministry; a field officer of the Ministry, and only in exceptional circumstances, when such a person was not available, would he authorise some other responsible person to carry out the gassing under the supervision of the Ministry of Agriculture. The third assurance he gave was that he would not allow licences to be issued for the extermination of badgers anywhere. He would not allow licences to be issued except in those very restricted areas where he, at any rate, was satisfied that the badger was infecting, and represented a grave health hazard. These were the three assurances given.

I want to ask the noble Lord, Lord Melchett, if those assurances are intended, if they are meant and if they are genuine, why should they not be written into the Bill? Only the other day there was a case before the courts where the question arose as to whether, when interpreting a Statute, the court is entitled to look behind to find out what was intended. Was the court entitled, in particular, to look at all the debates that had taken place in both Houses of Parliament before the Bill went on to the Statute Book, in order to try to decide what was intended by the wording of the Act? The ruling of the court was—and this has been a long-standing rule of law in this country—that the courts could not look behind an Act of Parliament. They must interpret the words as they are, with the result that if at some stage in future these assurances which we have now been given are not kept, we shall have no redress in the courts of law. If the Minister at some future date gives a licence contrary to these assurances which have been given by the Government, no one will have any redress, and no one will be able to put the matter right.

I ask the noble Lord the following question: Is he prepared to say on behalf of the Government tonight, "Yes, we will write these assurances, we will write these limits, we will write these restrictions into the Bill at the next stage of the Bill "? If he is not prepared to do that, some of us will be proposing the appropriate Amendments, because there is no difficulty in drafting an Amendment. There is no difficulty whatever in providing, for example, that before the Minister issues a licence of that kind at all he must be satisfied that bovine tuberculosis in badgers constitutes a serious hazard to the health of cattle in that area. What objection could there possibly be to requiring the Minister to make that declaration before he makes an Order? So I invite the noble Lord to say tonight, first whether he is prepared to tell us not what his experts say, but what evidence there is that badgers are the carriers of bovine tuberculosis. Secondly, is he prepared to give us an assurance that at a later stage in this House the Government themselves will take steps to turn their assurances into clauses of the Bill?

9.40 p.m.

Lord HOUGHTON of SOWERBY

My Lords, I apologise to the noble Earl, Lord Cranbrook, for not being in your Lordships' House when he spoke on this Bill. I was listening to Mr. Enoch Powell and Mrs. Shirley Williams in the hope that I might hear something which would resolve the doubts in my mind about going into the European Community.

The Earl of CRANBROOK

My Lords, if the noble Lord, Lord Houghton of Sowerby, will forgive me for interrupting him, might I suggest that he would nave been more profitably occupied here?

Lord HOUGHTON of SOWERBY

My Lords, the hour is late, and I want to come straight to the point. The noble Lord, Lord Birkett, said it was a pity that a controversial clause should appear in an otherwise acceptable Bill. That is always so. However, the pity here is the greater because Clause 16 really does not belong to this Bill at all. It is inserted in this Bill, because it was believed necessary to amend the Badgers Act of 1973. This clause was not in the Bill when this Bill had its Second Reading in another place, though the mover of the Second Reading, Mr. Peter Hardy, a Member of another place, acknowledged that there was a problem here with which the Bill might properly deal. He said that he believed that the provisions of Clause 16, as it now is, were justified, and he went so far as to say with certainty that badgers infected with bovine tuberculosis were carrying it and probably infecting cattle.

When the Minister spoke on the Second Reading of this Bill in another place, he relied very heavily indeed on Mr. Peter Hardy's acceptance of the need for this clause. There was no particular evidence given, at least at that point, and probably further research might be necessary to discover how much evidence was given during the Committee stage of the Bill in another place. However, I declare an interest myself in having badger setts very close indeed to my home. My badgers are not on the close visiting terms of those of the noble Earl, Lord Arran. Mine only come to the kitchen door; they do not go in and open the fridge. But the kitchen door is close enough to observe badgers, especially at night under a light, which they appear not to resent and it is a very interesting study indeed.

Much has been said about the need for evidence. There is probably some evidence available. There is some suspicion falling heavily on badgers in certain parts of the country as carriers of this disease; and of course it does not really matter, if I may say so, who started it. If both badgers and cattle are infected something should be done, in the interests of cattle on the one hand and badgers on the other, to try to eliminate it. It may be that both have to suffer in the end, in order to eliminate the prospect of extension of a disease of this kind.

I noticed that on the Third Reading of the Bill in another place on 18th April a Minister said that post-mortem examinations had been conducted in the Ministry's laboratories on nearly 1,000 badgers. It looks as if the slaughter has already begun; 1,000 badgers is a lot of badgers as a testing ground for the main exercise. It was from this very large sample that was taken that the incidence of the disease of 18 or 20 per cent. was discovered, and was regarded as very strong prima facie evidence that they were carrying the disease to cattle. That may be, but I think we want to examine very carefully indeed when we come to the Committee stage how it comes about that in 1973 this was not inserted in the Badgers Act, and it now comes into another Bill not related to badgers specifically at all, presumably on some evidence both of strength and urgency. I think we want to know more about both.

Mr. Peter Hardy, I need scarcely say, is a Member of another place noted for his strong desire for conservation; indeed, he sponsored the Badgers Act in the House of Commons which was sponsored by the noble Earl, Lord Arran, in this House. He has sponsored the Bill that is now before this House; he has been appointed by the Secretary of State for the Home Office to be a lay and additional member of the Home Office Advisory Committee on Experiments on Living Animals, so that his credentials in a matter of this kind are very impressive indeed. Anything that he accepts as the basis for his own judgment and actions I should certainly not dismiss out of hand.

I now come to my point of substance. Various noble Lords, and the noble Lord, Lord Foot, just now, asked for assurances about the mode of destruction which might be used, those who might be granted licences to undertake the task, and so forth. I am anxious about the conditions under which the Minister may grant the licence at all. I have a strong feeling of doubt as to whether licences granted by Departments are always justified. Licences to slaughter can be granted on an extensive scale. We have the Rabies Act on the Statute Book, in which huge powers of destruction could lie in the hands of the Minister if a case of rabies were to cross into this country. We have licences granted under other protective legislation related, for example, to foot and mouth disease. More particularly, having regard to a debate that took place last week in your Lordships' House, I have the strongest reservations about the licences granted by the Home Secretary to those who can carry out experiments on living animals.

Therefore, I always want to know what the authority is to be, and what the evidence is to be behind the granting of a licence. That is the point at which the whole mischief may begin. When we come to the Committee stage, we may find ways of reassuring ourselves that the licence would not be granted unless there was overwhelming evidence that it was justified. I do not think your Lordships would he justified—it is not intended so far—in deleting Clause 16 from the Bill. Even if we did eventually delete it from the Bill, the problem is still there. It would have to be dealt with somewhere, somehow, even if it was by an amending Bill to the Badgers Act 1973, which would be the proper method. Then we could dwell with approval and mutual congratulations on our defence of wild creatures and wild plants, which is the rest of this Bill. It is always a pity when the good that a Bill does is lost sight of because of the criticism of one section of a Bill, and this is the point made by the noble Lord, Lord Birkett. That is my point.

We have to discover means whereby the hand of the Minister in granting licences should be held and, if necessary. restrained by competent judgment and evidence from those who are in the best position to advise him. We know that Ministers do not necessarily know anything about animals, or anything else; they have to grant licences which it is recommended by experts and officials they should give. One cannot always be satisfied that the advice given, the evidence available, is sufficiently strong to justify the act to be taken by the Minister. On matters of this kind. Ministers will be just as cautious in safeguarding what they believe to be the real interest in the matter, even though it results in the profligate destruction of wildlife. One sees this, for example, in connection with the culling of seals.

One sometimes wonders how strong is the evidence and how valid the interests which declare that they are being injured unless some destruction on a considerable scale is undertaken. It is the granting of the licences which must be the subject of our critical examination when we come to the Committee stage. As to who would carry out this distasteful job, there is no doubt the Minister will assure us that it will be some officer in the Ministry who is fully qualified and expert in this matter; otherwise, it would go to someone else who had experience and could be trusted to carry out the job in a humane way. I do not think we need fear that the Minister would grant licences indiscriminately to anyone to use any method of destroying badgers.

My final word is that we must protect the badger from being hunted and slaughtered unlawfully and indiscriminately by farmers, who fear that they are exposed to a degree of risk of the spread of the disease and may take the law into their own hands unless a higher authority has power which can be used if the evidence is strong enough to justify it. That is why we must give some power to the Minister to be able to undertake this job; otherwise, other people will take it into their own hands and that will frustrate all the protection given under the Act of 1973. I hope that when we come to the Committee stage the Government will seriously consider some means of supporting the Minister and protecting him from being ill-advised or exposed to unjustified criticism if licences are granted.

9.52 p.m.

Lord MELCHETT

My Lords, it gives me great pleasure to be able to speak once again about the conservation of wild plants and wild creatures, especially as I can confirm that the Government still strongly support this Bill. Although the present Bill was introduced in another place, the credit for its conception must go to the two noble Lords on whose Bills it is based, and it is most fitting that they should be here today to explain it to us. With my noble friend Lord Wynne-Jones I am particularly pleased to see the noble Earl, Lord Cranbrook, in such good form as he was unfortunately unable to be with us when we debated this Bill in November.

I do not wish to detain your Lordships unduly, especially as I have a little to say about Clause 16, but it may be helpful if I mention very briefly some of the more important changes of substance which have been made since our debates last November. First, there have been some changes designed to protect the freedom of the individual. The phrase "without reasonable excuse" has been introduced to provide a defence in cases of accident or of mistaken identity. This should prove more satisfactory than the word "wilfully", which was used earlier. The power to search in Clause 10 may now be exercised only when a constable has good reason to suppose that the suspect may have evidence on his or her person. As noble Lords will know, it is usual in Bills of this kind for the commencement date to be three months or so after Royal Assent, to allow the necessary licensing procedures and so on to be set up. In this case I know that the sponsors are anxious for an immediate commencement date as the Bill is now likely to come into operation in the middle of the flowering season and it would be a great pity to give unscrupulous collectors what would be, in effect, three months' grace. I am happy to he able to say that the Nature Conservancy Council have agreed to expedite their arrangements so that there will be no objection to the immediate operative date at present provided in the Bill.

I need to mention only one very minor reservation that we have about this Bill. We may in Committee wish to re-examine one or two of the species in the Schedules, as evidence of their distribution and status is still being collected. May I also say to the noble Earl, Lord Cranbrook, that we would welcome the use of the word "conservation"rather than" protection "in the Title. The noble Lord, Lord Beaumont of Whitley, asked me about the idea that landowners should be required to give 28 days' notice before destroying protective plants on sites of special scientific interest. The Nature Conservancy Council have devised a voluntary scheme which I think might equally well meet the substance of what the noble Earl is seeking, but we can discuss these matters in more detail at the Committee stage. The noble Lord might like to know that we are stilt awaiting the NCC's views on Mr. Ross's rare plant on the Isle of Wight, and we will let the noble Lord know when we learn the Nature Conservancy Council's views.

I come to Clause 16, which was introduced by the Government and which is a matter of particular concern to some of your Lordships. During the past few weeks it has been clearly shown that there is gross misunderstanding as to precisely what this clause is designed to achieve. I must emphatically stress that the Government are not seeking draconian powers to carry out a mass extermination programme to rid the country of badgers, and anyone who suggests any such thing is certainly not doing badgers any good at all. I have two particular interests to declare before I discuss this clause in detail. First, I am a farmer and I have a 100-head herd of single suckler beef cows on my farm. My second interest might appear to some of your Lordships to conflict with my first, although I certainly do not think it does. I am extremely fond of badgers, so much so that I have released a pair of young badgers, reared in a local wildlife park, into a wood on my farm, where they have made a large sett and appear to have settled down quite happily.

While I do not pretend to share the degree of affection for it, or to have the knowledge of the sponsor of this Bill in another place, Mr. Peter Hardy. I, too, am a badger lover. I, like Mr. Hardy, support this gassing clause. And I would venture to say that it is total nonsense to say that this Bill, or this clause, is an "anti-badger measure" or a "Bill for the destruction of badgers ". Nor is there any question of anyone wanting to exterminate badgers or even to decimate them, or badger them into extinction, all of which has been thoroughly irresponsibly suggested.

The Earl of ARRAN

My Lords, may I ask——

Lord MELCHETT

My Lords, I hope the noble Earl will allow me to give way later rather than now. We have had several lengthy speeches, the hour is quite late and I have a considerable amount to say.

The Ministry of Agriculture's Veterinary Service is now certain that bovine tuberculosis is endemic in badgers in certain limited areas in the South-West and that this animal is playing a significant part in the spread of the disease in cattle in those areas. Several leading experts in veterinary science and badger behaviour also accept that there is strong circumstantial evidence linking the disease in cattle to that in badgers. Other species of wildlife, including foxes, rats, voles and other small rodents, moles and weasels have also been examined at the Central Veterinary Laboratory. Results to date have indicated that no other species of wild mammal apart from the badger plays any part in the spread of the disease in cattle. These investigations are nevertheless continuing. It has been suggested that bats might carry the disease, but this seems unlikely to me; I see no way in which bats infect cattle, but this possibility will be borne in mind during the course of investiga tions. There is no evidence that birds are affected with bovine tuberculosis or that they play any part in the spread of the disease. I should like to correct one mistaken impression which some noble Lords seem to have about various sorts of tuberculosis; as I understand it, the micro bacterium bovis affects cattle, people and badgers—it is the same micro bacterium and there is no question of there being any such thing as badger tuberculosis, which several noble Lords have suggested.

A large number of badger carcases have now been examined for bovine tuberculosis. Some of those examined were badgers which had died from natural causes and about half of these were found to have lesions of tuberculosis; in other words, to be actually suffering from the disease themselves. In all, about 18 per cent. of all badgers examined post-mortem have been found to be actually suffering from the disease, many with extensive lesions of tuberculosis, which during life would, in the opinion of MAFF's veterinary experts, have made them capable of passing the disease to cattle and other badgers through their sputum, faeces and urine. Most of the lesions occur in the lungs and associated lymph glands and the bacteria are coughed out in the sputum or swallowed and passed in the faeces.

When lesions are present in the kidneys, the urine has been found to contain large numbers of the bacteria which cause tuberculosis. Post-mortem examinations on many of the affected badgers have shown, that, had they lived, they would in all probability have suffered a lingering death due to the extensive and progressive nature of this unpleasant disease. Some animals in an advanced stage of tuberculosis may change their normal behavioural pattern and go in search of easily available food. Some have been found in or near farm buildings during daylight. Badgers with advanced tuberculosis would most certainly infect other occupants of a sett and deposit this very resistant organism underground, making the area dangerous for healthy badgers even after an interval of several months. The pasture over which infected badgers travel could also be contaminated with their discharges to such an extent as to be a potential source of danger to any cattle with access to that area.

Here I may say that I was very surprised at the remarks of the noble Viscount, Lord Massereene and Ferrard, about badgers and cattle not mixing. I think he will know, if he knows anything about badgers, that they prefer feeding on pastures to anywhere else. As he will know, their main diet is earthworms and the main source of earthworms is permanent pasture land, where, of course, cattle are likely to be grazing. Badgers are of course clean animals and normally deposit their faeces in well defined shallow pits. However, in some areas from which tuberculosis badgers have been taken, badger faeces have been found dropped haphazardly in pasture. This goes to support the view that badgers which have this disease are suffering very badly and that it seriously disrupts their normal patterns of behaviour.

Even if cattle did originally give the disease to the badgers, routine and, if necessary, intensive tuberculin-testing programmes now being carried out in cattle herds, with slaughter of all cattle reacting to the test, and any cattle which are considered to have been exposed to infection, ensure that the spread of the disease by cattle is now effectively controlled. My noble friend Lord Houghton of Sowerby made this point. Cattle which are either infected or are in danger of being infected are being slaughtered.

At present there is no reason to believe that the problem is other than a local one and confined to a few small parts of the South-West of England, although many other areas of the country have dense badger populations—for example, the New Forest, Hertfordshire, Yorkshire and many other counties. However, there is only evidence of tuberculosis in badgers in fairly restricted areas within North and West Cornwall, South Gloucestershire, North Avon, North Wiltshire and South Dorset. The need to take what might be called "fire-brigade "action to control other isolated outbreaks will also arise.

This answers one of the points which the noble Lord, Lord Foot, raised about the three assurances he wanted written into the clause. He said we should have some assurance that the Minister would issue licences only in order to prevent the spread of disease. It will not be necessary to have this written in. The Badgers Act, as amended, will allow licensed gassing only for the purpose of preventing the spread of disease. But, of course, action would only be taken when all the usual investigations had been made and no other source of infection discovered, and when there was evidence that a local badger population was infected.

Ministry of Agriculture officials emphasise that this is entirely a local problem in all discussions they have with farmers, conservationists and other interested bodies, and I hope all noble Lords will do the same. This is why I say that the exaggerated claims made about Clause 16 do badgers a great deal of harm. There is a danger, as my noble friend Lord Houghton has said, of scaring farmers all over the country into illegally killing badgers when it is quite unnecessary. I hope that some noble Lords will take this point to heart.

The method of control which has been suggested—cyanide gassing—would in any case remain illegal without a licence from my right honourable friend the Minister of Agriculture. Noble Lords will remember that the Scott-Henderson Report on Cruelty to Wild Animals said that, As gassing is undoubtedly the most effective and humane method of killing badgers, steps should be taken to make this practice legal. This is what we are seeking to do, but only under licence, and only where gassing is essential. As I say, this decision has not been taken lightly, and while do not want to stress economic factors, I think it is worth mentioning that in 1974 the compensation paid by the Ministry for TB reactors and dangerous contacts in the South West Region of England alone was over £200,000, and for the whole of the remainder of Britain it was only £90,000.

Finally of course, the potential risks to human beings of this disease must not be overlooked. The main reason for the massive campaign to eradicate the disease during the 1950s was to enable us to remove an important source of tuberculosis in people. The powers conferred by this clause will be used only sparingly and only when absolutely necessary. Only power pumped cyanide gas will be used, unless something is developed which can be shown to be more effective and equally humane. I wish to come here to another point mentioned by the noble Lord, Lord Foot. I myself find it difficult to see how we could write into Clause 16 the power of the Minister to use any new method of control which turned up in future and which proved to be more effective and more humane than power pumping of cyanide gas which we intend to use at the moment. That is why no specific method of killing badgers has been included in the clause—

The Earl of ARRAN

My Lords, in the House of Commons on 18th April the Minister of State mentioned the possible future use of carbon monoxide. Is it the intention of the Minister to use that poison, or not?

Lord MELCHETT

My Lords, I thought that I had said quite clearly and quite categorically that cyanide gas would be used—and I am repeating what I have just said—unless something is developed which can be shown to be more effective and equally humane. I do not know whether carbon monoxide could be equally effective and equally humane. The noble Earl says he does, but I do not, and I am not pretending that I do. I have given an assurance on the conditions in which some alternative method of control will be used, and I hope that the noble Earl will accept what I have said.

Furthermore, whenever possible, only Ministry of Agriculture staff will be licensed. This is a point touched on by some noble Lords. In those cases when this is not possible, only persons known to the Ministry to be capable of using gassing equipment both efficiently and humanely will be licensed. It is thought that it will not be necessary to licence non-Ministry staff very often, but the kind of people that might do gassing under Ministry contract are those engaged commercially in the business of pest control with experience of gassing rabbits. But in any such case there would still be very close control by Ministry field officers with experience of pest control.

I think I am right in saying that this was the third point on which the noble Lord, Lord Foot, wanted some assurance. The problem is that at present it is not possible to say how many staff will be needed, in what particular areas they will be needed, or for what length of time. We need some flexibility if this clause is to be carried out effectively. That is why we are asking that the Minister should also have power to license people other than Ministry staff. I think I have now gone rather further than anybody from the Government has done in the past in detailing quite clearly what sort of people we envisage being licensed, if it is necessary.

Since the Ministry has no experience of gassing badgers (although a great deal of experience of gassing other burrowing mammals, such as rabbits and rats) research on badger gassing will be necessary. In part of Gloucestershire/Avon, where badgers infected with tuberculosis have been found, it is proposed to carry out an experimental clearance of badgers within a circumscribed area and to keep the area clear for a year or more. We do not know how long it would take to clear a particular area, nor how long infection would remain in a badger sett after clearance. This is something that we shall have to learn as we go along. The object of the experiment would be to demonstrate that, if both diseased cattle and diseased badgers were excluded for a sufficient time, the area would become free from infection with bovine tuberculosis. By the nature of the problem, only by trying it can we be sure it will work. I think this answers the point made by the noble Viscount about proof in a court of law. By the very nature of the problem we are facing, it is impossible to prove it until we have been able to try exterminating badgers over a small local area to see if this does eradicate the disease.

I believe, and I hope your Lordships will, that we do have enough evidence to justify asking for the powers we need to do this experiment. We know that bovine tuberculosis is doing at least as much, if not more, damage to badgers in these areas than it is to cattle. We also know that merely killing infected cattle will not eradicate the disease. If we want to stop a great many more badgers suffering a long and lingering death from this disease, I believe we must do everything we possibly can to eradicate the infected badgers, and hence, hopefully, the disease itself.

I apologise for taking up so much of your Lordships' time at this late hour, but as I said earlier a great many noble Lords raised problems associated with Clause 16. To return to less troubled waters, the numbers and, distribution of our fauna and flora are changing all the time, as is our knowledge of their whereabouts. Often the story is one of decline and gloom. I was personally delighted a week ago to find cowslips growing on my farm in two places where I have never seen them before. Rather more important, from a national point of view, in the past few weeks a greater horseshoe bat has been seen for the first time in Sussex. And the monkey orchid has been found far from previously known locations. On this optimistic note I should like to close by commending this Bill to your Lordships' and expressing the hope that it will soon become law.

10.11 p.m.

The Earl of CRANBROOK

My Lords, I should first like to express my gratitude to noble Lords who supported the whole of this Bill except Clause 16, although I must except from those thanks the noble Earl, Lord Arran, who told me that the Bill is a mess. I hope that perhaps he will be able to produce some Amendments which will tidy up the mess which, I must confess, I have not yet noticed. Very little was said about the Bill itself, other than about the one controversial clause which I anticipated would produce a certain amount of smoke and fire; but I looked upon it as one of these private wars, and I stood on the outside to hit the bits that stuck out. A very large number of bits have stuck out, but it is too late to enjoy myself by hitting them. I will look forward to being able to do that at the Committee stage.

I would urge noble Lords who are exercised about that clause just to think about two points. It is something I have had to think about in relation to this Bill. In this Bill there is a clause identical to what is in the Badgers Act about the Minister having the power to license the killing of protected wild creatures to prevent the spread of disease. I have been wondering very much, while this discussion has been going on, whether or not we ought seriously to consider putting a similar clause in this Bill; because, as I see this controversial clause, the real point is that it is allowing the use of a more humane method of killing animals, whether they are suffering from tuberculosis or anything else, which in itself is right and just and proper. Your Lordships have been diverted tonight on discussions as to whether or not there is sufficient evidence to justify its use to prevent the spread of tuberculosis. That is an entirely different thing outside the laws which we are trying to make, which are that if animals must be killed they should be killed humanely.

I would ask those of your Lordships who are worried about this aspect so far as badgers are concerned, to be thinking about this Bill as well; because a rat or bat or mouse or any other mammal feels—I almost said "suffers ", but perhaps that is the wrong word—as great distress by the method of its killing as does a badger or the most attractive animal we know. We ought to look on the whole lot of them in the same category. Bats, we know, can and do carry rabies in some foreign countries. It is conceivably possible that it could happen here and we might have to exterminate a whole colony of the great horseshoe bat, members of which have been found to be carrying rabies. I am not well up in the Rabies Act. I would infinitely prefer to see them killed by poison gas than by sending in small boys with tennis racquets or the like. I hope that noble Lords who are going to discuss this matter in the Committee stage will think about those points and advise me when the time comes whether they think we should have a similar clause allowing the use of a more humane method of killing, if necessary, in this Bill.

The noble Viscount, Lord Massereene and Ferrard, referred to the destruction of habitat and the resultant rarity of special things. He specified frogs and toads. In a Bill of this nature you cannot deal with the destruction of habitat; all you can deal with is the people who make animals even rarer after they once have been made rare by the destruction of their habitat. The defence of the habitat must be a Government responsibility in other ways. I think that was the only point which was raised, and if there was anything else I apologise for missing it. I am grateful for the support given to every part of the Bill except Clause 16. As the noble Lord, Lord Houghton of Sowerby, said, the Bill is not affected by Clause 16 either one way or the other, except possibly in the rather tenuous way to which the noble Lord, Lord Melchett, referred, that unless farmers in areas where badgers are known not to have TB at the moment are frightened because the incidence of TB is not reduced in places where it is prevalent, they may be led to take not illegal action—they are legally entitled to kill the badgers on their farms—but wholly unnecessary action. However, so far as I have heard, it is only in a small area where this problem arises. I am grateful for the support your Lordships have given to this Bill.

On Question, Bill read 2^a, and committed to a Committee of the Whole House.