WILD CREATURES AND WILD PLANTS PROTECTION BILL

HL Deb 20 June 1975 vol 361 cc1088-148

11.27 a.m.

The Earl of CRANBROOK

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, that the House do now resolve itself into Committee.—(The Earl of Cranbrook.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Earl of Listowel in the Chair.]

Clause 1 [Restriction on killing etc. protected wild creatures]:

Lord MELCHETT moved Amendment No. 1: Page 1, line 7, leave out (", takes or reduces into possession ") and insert (" or takes").

The noble Lord said: With this Amendment, by leave of the Committee, I should like to speak to Amendments Nos. 2, 4, 8, 9, 10 and 11. All these would delete the reference to the offence of reducing into possession from the provisions of Clauses 1 and 6. I am advised that the expression "reduces into possession" for all practical purposes does nothing to the meaning of the word "take". Therefore, it is unnecessary and should be deleted throughout the Bill. This would bring the Bill into line with the legislation covering birds, seals and badgers, all of which use the term "takes". I beg to move.

The Earl of CRANBROOK

This is a very appropriate Amendment, and I hope the Committee will agree to it.

On Question, Amendment agreed to.

Lord MELCHETT: I beg to move Amendment No. 2.

Amendment moved— Page 1, line 8, leave out (",take or reduce into possession ") and insert (" or take ").—[Lord Melchett.]

On Question, Amendment agreed to.

The Earl of CRANBROOK moved Amendment No. 3: Page 1, line 11, after (" shown ") insert (" by him ").

The noble Earl said: This is a purely drafting Amendment, intended to make explicit what is now implicit in the Bill. It is a little tidier. I beg to move.

Lord MELCHETT

I thank the noble Earl, Lord Cranbrook, for accepting my Amendments, and return the favour.

On Question, Amendment agreed to.

Lord MELCHETT

I beg to move Amendment No. 4.

Amendment moved— Page 1, line 11, leave out from (" killed") to (" otherwise") in line 12 and insert (" or taken ")—(Lord Melchett.)

On Question, Amendment agreed to.

On Question, Whether Clause 1, as amended, shall stand part of the Bill?

Lord HALE

I have not spoken on the Amendments because they were all slight improvements. I am strongly in favour of the objects of the Bill and grateful to those responsible for it for introducing it today. But I should like to make one observation about the minatory character of all this. Taking the last paragraph of the clause, which is a standard clause for protection of the farmers, I have been a poultry farmer myself—my only venture in agriculture—and I came to know a lot about poultry diseases, and not much else. I wonder what it is for. We have just been talking about taking into possession.

Let me come back to poultry first, if I may. What threat to poultry is involved in the blue butterfly or the wild orchid; how can it possibly have any relevance to the provisions of the latter clauses of the Bill? What are the animals in Schedule 1 which can in any circumstances be a threat to poultry? The Bill seems to have a mass of exceptions which completely eliminate the major offenders. I do not know whether I am in order in pursuing this point. It always seems to me more convenient to put one collective point at the appropriate stage than to keep popping up and talking about the toad and the blue butterfly which is a rather special type. The Bill is full of clauses in which we are told of the powers of a police constable, who has probably never seen a large blue butterfly in his life, because that is one of the rarest of all the species. It cannot be much protected by preventing the slaughter of the butterfly, because its own development depends on the presence of wild thyme and of ants to assist in incubation, a most elaborate and fascinating process which is very rare.

What about "take into possession"? We are told that every effort is to be made to educate children in the love of flowers and animals; that is being done now, and, I hope, being done well. I am not quite sure whether it assists very greatly if their attention is focused on the very rare species which stimulate the desire to collect. Classes are given in herpetology where lads are encouraged to prepare aquaria at home to collect some of these animals. So the first victim of prosecution is likely to be a lad who picks up the wrong kind of toad or the wrong kind of snail. This very unhappy form of toad seems to lead the most miserable life and existence. It is nonselective in its habitat because it has not now got the courage to select the habitat with the care and the precision which is shown by the more intelligent toads. It is liable to be killed by a motor car if it crosses the road. Its favourite habitat is the South Devon and Dorset Coast, which is also mine; it cannot go down there, because, of course, the whole place is being dug up and built on, and I cannot go there because I have got no money; so we suffer in a similar way.

Later on we come to the blue butterfly, which is not found in most parts at all now; indeed it is fair to say that it is so reduced that there is very limited habitat. A constable can wander about a field; see a shapely young lady handling a net; arrest her on reasonable grounds of suspicion for pinching a blue butterfly; search her in her country clothing on the spot. This is not a humorous contribution; I am trying to speak with the greatest possible gravity. All the constable has to show is that he has reasonable cause. Well, many people have reasonable cause for searching young ladies. If you are really going to take that case to court, and she is going to say "It was a hairnet "—

Lord MELCHETT

If I may interrupt the noble Lord, I shall be moving an Amendment, No. 17, which will to some extent deal with the points which my noble friend is raising on the Question, Whether Clause 1 shall stand part. I wonder whether he would like to come back to this when we reach Amendment No. 17.

Lord HALE

Yes; and I am grateful to the noble Lord. What I was going to say is that the spirit of some of this Bill is like taking the Leeds football enthusiasts and giving them lessons on how to stroke railway carriages and make a pet of the cushions. It can be counter productive. I passionately share the desire of the authors of the Bill to protect every rare species that we can and to take whatever reasonable steps that can be taken. But I do not think that having the clerk of the county council examining everything, duties being spread and new offices being created, is necessary. I should have thought that this was the real model of a Bill I have been hoping to see all my political life in which we say, "We are going to give new warnings; we are going to pass menacing Statutes, but we are not going to lug in the police court and have anti-nature societies financing appeals to the Court of Appeal, and the Court of Appeal considering whether the constable had reasonable cause, or considering whether the man knew that it was this odd type toad or this rare kind of butterfly when he took it away ".

The EARL of CRANBROOK

I do not know whether your Lordships would wish me to make another Second Reading speech on whether the clause shall stand part. I would merely remind the noble Lord that the dangers against which this clause is directed are those of the deliberate taking and killing without reasonable excuse, and are aimed at the professional, either paid or unpaid, collector. If some small boy takes the wrong toad or the wrong butterfly by mistake, I do not think he would be prosecuted. if he was, I think the words "without reasonable excuse" would probably cover him. The point made by the noble Lord is one which could be made about absolutely every conservation measure which protects any wild creature or any wild plant of any sort. I do not believe the dangers which he fears really do exist. I think this is the best way of dealing with the problem we have to face.

Lord DAVIES of LEEK

I will not detain the Committee very long. Adding a little to the clarification of whether the clause shall stand part, looking at Clause I. lines 15 to 20, all it means, in very simple English once again, is that a farmer or anybody will not be guilty of any of these offences if he is, in his belief, preventing serious damage to land, crops, chickens—I use the word "chickens" because I think that is clearer—or any other form of property. Take that one phrase, "any other form of property ". On my little smallholding in West Wales which I was once interested in, the problem was the hedges and ditches. If a badger had holed up in any of those, I would have been able to kill, shoot, or maim any wild creature at will. Consequently, this clause is wide enough for a juggernaut—and we see so many of them—to run through. Finally, all this talk about little boys picking up toads. Most little boys today, in this materialistic system of society in which we live, never have the joy which I had, of putting a toad in teacher's pocket. I am also quite sure that a good many do not know what a toad is, because we are building a system of society so materialistic that the nearer to the sky the buildings the further from heaven do the people living in them become. Consequently, we want to have some other philosophical discussion some lovely Friday morning to develop the wonderful argument raised by the noble Lord, Lord Hale. I think the Committee has listened to me enough, and I will sit down.

Clause 1, as amended, agreed to.

Clause 2 [Restriction on sale of protected wild creatures.]:

11.40 a.m.

Baroness BERKELEY moved Amendment No. 5. Page 1, line 24, after (" Act ") insert (" or any skin or skeleton of such creature")

The noble Baroness said: On behalf of my noble friend Lord Somers, who is unable to be present today, I beg to move the Amendment standing in his name, to include the words "or any skin or skeleton of such creature." If these words were added better protection would be given to the wild creatures listed in the Schedule. This is necessary as there is a good deal of trade in rare animals. High prices are paid by collectors who may not be too particular in the way that they add to their collections of rare species, either alive or dead, skeleton or skins.

This kind of trade is most undesirable, and it is to be hoped that the clause in the Bill will do much to restrain and control this type of sale, if not entirely stopping it at once. I hope that my noble friend Lord Cranbrook will agree to the addition of Clause 2, as I think it would strengthen the Bill. I trust that Her Majesty's Government will see fit to accept this Amendment. I beg to move.

Lord MELCHETT

As the noble Baroness has said, this Amendment will restrict the sale of the skin or skeleton of any creature of a species specified in Schedule 1 of this Bill. As the clause stands, the sale of live or dead creatures is restricted.

But it seems likely that stuffed animals and skeletons would not be covered because they would be regarded as part of animals rather than as whole animals. There may well be some trade between dealers and collectors in stuffed creatures of protected species, so it seems desirable to close this loophole. There is a similar provision in the Protection of Birds Act 1954, to restrict the sale of the skins or plumage of wild birds. The one reservation I have is that I am not sure that we have the most elegant form of wording in the Amendment of the noble Baroness, but if necessary I will undertake to bring forward a Government Amendment at the next stage. In the meantime, I would urge your Lordships to accept this Amendment.

Lord BALFOUR of INCHRYE

I ask the Committee to give a little further consideration to this Amendment. The noble Earl, Lord Cranbrook, said that this Bill was mainly for collectors, but in fact it must affect a large number of the general public. The Amendment refers to anyone who, without reasonable excuse sells, offers for sale or has in his possession for sale … any skin or skeleton of such creature "— or reptile mentioned in Schedule 1. I am not very knowledgeable as to where the smooth snake lives or what are its habits, but I know that if I find a snake, smooth or rough, on my property it gets a good knock on the head.

Someone goes into a shop and buys a snakeskin purse, or a snakeskin pair of shoes—perhaps from the snake that has been knocked on the head on my property. So far as I can see, under this clause that member of the public would be guilty, and equally the taxidermist who sells it would be guilty. The noble Lord, Lord Melchett, shakes his head. I hope that he will be able to reassure me on this, because otherwise we are imposing on the public the possibility of committing an offence, which they would do innocently and because of the undue width of the proposed Amendment.

Lord MELCHETT

I wonder whether I could clear up a point. As I understand it, the "without reasonable excuse" provision in Clause 2 would provide a defence for actions arising from mistaken identification. In case somebody else raises it, maybe it would be helpful if I add that anyone in possession of skins before the passing of the Act would not commit an offence. Perhaps I can reassure the noble Lord and tell him that smooth snakes are not poisonous, and there is certainly no need for anyone to hit them on the head.

Lord BALFOUR of INCHRYE

That is no real reply. I am not concerned with someone who already has a skin before this Act is passed. I am concerned with the possible commission of a misdemeanour by someone who buys a smooth snakeskin fabricated into a particular appliance. I do not object to the skeleton part of this Amendment, but I think that the skin part goes far too far, and I trust that the Committee and the noble Earl in charge of the Bill will consider whether it would not be wiser to omit "skin" while leaving "skeleton" in the Bill.

Baroness GAITSKELL

The Minister said that no one need hit on the head a snake which is not poisonous. I once found a snake in my dustbin and I hit it on the head because I did not know whether it was poisonous or not. It happened to belong to a collector next door, and I was mortified when I found that it was not poisonous.

The Earl of CRANBROOK

The sort of reaction which some people have in response to a snake, "Here is a stranger. Heave half a brick at him ", does not seem to me to have any reasonable excuse for it. I am glad that the noble Baroness has learned by bitter experience that it is a most unreasonable thing to do, and I hope that my noble friend will learn the same. As to the possibility of somebody buying a pair of shoes made of snakeskin derived from a smooth snake or any of the creatures which could be protected under this Bill, if it becomes an Act, I would remind the noble Lord that the creature is not more than an inch in diameter. I suppose it would make an admirable finger stall, but you would need to have so many and the skin is so tender that if you bought a pair of shoes made of it, or even a lady's handbag, it would probably disintegrate before you got home. I think that "reasonable excuse" covers the matter, and I hope that noble Lords will agree with this Amendment.

Lord WYNNE-JONES

I find it a little difficult to understand why there should be any serious objection to this Amendment, because the noble Baroness has made it perfectly clear that its purpose is to deal with trade in the skin or skeleton. The Bill itself says: … any person without reasonable excuse sells, offers for sale or has in his possession for sale … That surely does not include the person who happens to have something in his house, because he is not offering it for sale. It is stated clearly in the original Bill that it is the sale which is being prohibited, or the intention to sell. I should have thought that the noble Baroness's Amendment is perfectly sensible in bringing in just that little extension to this clause which will, or may, prevent unscrupulous people from actually intending to sell the skin or any other part of an animal.

Lord MOWBRAY AND STOURTON

I think that my noble friend Lord Balfour's worry about the skins in this case is not necessary. I quite agree, and I imagine all your Lordships would agree, that as Schedule 1 stands at the moment it is unlikely that this point is going to arise. One of the beauties of this Bill is that the Secretary of State is able to add to it at any time other creatures which may at some time or other become in need of protection. It could well be that an animal which had a more attractive skin for commercial purposes might have to be added. Therefore, I strongly advise the Committee that "skin" as well as "skeleton" should be in, in case another animal is included later on.

On Question, Amendment agreed to.

11.50 a.m.

The Earl of CRANBROOK moved Amendment No. 6:

Page 1, line 27, at end insert— (" (3) Where by virtue of an order made under section 7 of this Act certain members only of a species of wild creature are specified in Schedule 1 to this Act, subsection (1) of this section shall not apply in the case of a member of that species which is not so specified.')

The noble Lord said: Perhaps your Lordships would consider this Amendment in relation to Amendments Nos. 13 and 18 which deal with the same problem. The three together fill a gap which now exists in the Bill, the necessity for filling which was brought to my attention shortly after the Wild Creatures Bill was first presented in this House, when it was pointed out to me that it was the considered opinion of most scientists that the pearl mussel, which has a wide distribution throughout Northern Europe, was becoming exceedingly rare not only in this country but throughout the whole of Northern Europe, probably by pollution to a considerable extent but also by over-exploitation, and it was suggested to me that it should be added to the Schedule as a protected species.

When I looked into the matter I found that the position was not quite so simple because there has been a pearl fishery in this country since Roman times and, having consulted my noble and learned friend Lord Hailsham, I was able to look it up in the original Latin and eventually to find a crib which enabled me to translate into English a number of references to it, but I will not trouble your Lordships with that. The Romans did not think very much of British pearls, which they looked on as being largely yellow or lead colour and nothing like so good as those in the Red Sea. Nevertheless, there has been a small pearl fishery in this country for the better part of 2,000 years and I was able to see a pearl fisher doing his work. I was interested to see that he was probably using the method which his ancestors, who were doubtless covered with wood at that time, used in Roman times, picking them off the bottom of the river with an ash plant cut from a neighbouring hedge and split down the middle so that it made a pair of pincers.

What is interesting about what the professionals do is that they pick the animal from the bottom of the river open it, feel for pearls and then chuck it back and the poor thing dies, but they do not take the smaller ones, those under three inches long. It is obviously a highly destructive fishery because the animal is inevitably killed, but the smaller ones, which they say do not often contain pearls, are sufficient to maintain the population. I have little doubt that with the amount of pearl fishing which takes place at the moment, if that were universally done, the industry at its present very low level could continue without much trouble.

Unfortunately—I received this information from a number of people in Scotland and I daresay that noble Lords who come from North of the Border will be able to confirm this—this has now become a sport for amateur skin-divers. Your Lordships will know that where amateur skin divers have started doing this kind of thing in other countries—I suppose the worst examples are the Mediterranean, the East coast of Malaya, the East coast of Africa and various areas like that—incalculable damage has been done and all those countries are having to introduce legislation to control it. If there is continued predation by people who do not know what they are about and who take all the smaller mussels which the professionals have been throwing back, the animal could be reduced to a very low ebb and perhaps be in danger within a very short time. Once something like this becomes fashionable an enormous number of people take it up and the damage is done very quickly.

These three Amendments will allow an animal not to be protected entirely but to be protected by size or sex, and if it is found that skin-diving increases to the extent which I fear it may, protection of the smaller ones should do the trick and the status of the animal will be prevented from deteriorating. There is a gap in the Bill in this respect and I hope your Lordships will agree to fill it.

11.55 a.m.

Lord MELCHETT

It might be helpful if I gave the Committee a preliminary idea of the Government's view of this series of Amendments. The Bill already allows the Secretary of State to add all members of a species to Schedule 1 or Schedule 2 by Order. The effect of Amendment No. 13 would be to allow him in suitable cases to add only such members as may be described by reference to their size or sex. Amendment No. 18 would require the Nature Conservancy Council to offer appropriate advice in these cases. Amendment No. 6 would amend the provision restricting sale by making it legal to sell such members of a species as are not protected by the Order. This Bill has been described by several speakers as being a simple specific measure designed to afford strong protection to a limited list of truly endangered species. These Amendments extend the Bill significantly by introducing the concept of partial protection. I am afraid that such a facility may prove complex to operate and will add to the already considerable problems of enforcement, which I think have been acknowledged throughout the Bill's passage in the other place and on previous occasions when we have discussed the measure in your Lordships' House.

I have sympathy with the noble Earl, Lord Cranbrook, in his aim to make the Bill as flexible as possible to deal with future eventualities. But I do not find it easy to conceive of situations, apart from the one the noble Earl mentioned, either real or hypothetical, where such a facility would be useful. It might be useful to the Committee if the noble Earl would provide some examples of other instances where he thinks this series of Amendments would be used. As your Lordships will have gathered, I have some strong reservations on these Amendments and similarly on the concept of protection for certain periods of time, which we have yet to discuss, but I will listen with interest to the views of other Members of the Committee.

Lord CRAIGTON

I hope your Lordships will accept the Amendment and that the Minister will think about it again. If this Amendment were applicable to the public as a whole, I would agree entirely with what he said, but we are making a Bill not for today but for tomorrow to protect species which may not be threatened at present but which may be threatened. We do not know entirely what will happen and all that my noble friend is asking is that the representations made by societies and bodies to the Nature Conservancy Council should be slightly widened and that instead of having their hands tied as they are now, the Nature Conservancy Council should have a slightly greater latitude in the representations they make to the Secretary of State. This is simply a widening of the representations made by the Nature Conservancy Council to the Secretary of State. It is not a widening of the law in any other respect and though, for example, I could refer to Omers in Jersey, which is a case such as that my noble friend mentioned, it is not right that we should ask for examples; we should think ahead of the possibility of there being examples of which we know nothing and I hope that the noble Lord will reconsider his decision.

The Earl of BALFOUR

I have only a few comments to make on what my noble friend the Earl of Cranbrook said in respect of the question of sex and size, particularly in relation to shell fish. I am not intimate on this subject but I can give one example; the oyster starts out life as male and when it is fully grown becomes female. Therefore in the case of the pearl mussel, by merely removing the biggest one could, if there are very similar species, be removing the female of that species which could affect the future of that type of crustacean. I think the provision of both sex and size in a number of cases needs to be carefully considered and I, too, ask the Government to look at this question again.

Lord LEATHERLAND

The noble Earl, Lord Cranbrook, in moving Amendment No. 6, linked with it Amendments Nos. 13 and 18. Both of those Amendments introduce a factor regarding the size and the sex of the animals concerned. Presumably those animals of one sex may be exempt from this measure, while those of the other sex may come under it. I feel that that is making the Bill far too complicated. What happens if a person like myself, not widely versed in matters of sex, encounters a greater horse-shoe bat as specified in Schedule 1? Perhaps I would be able to take that animal, perhaps not; it would depend on its sex. What measures am I to take in order to determine the sex of the greater horseshoe bat, and whether or not I am able to take it? It might be said that I could seize the animal and examine it, but with my knowledge that would not get me very far. But by the mere act of seizing that animal I should have contravened Clause 1 of this Bill which says that no animal may be taken.

A similar problem arises in the case of the natterjack toad, because with my limited knowledge I would not be able to determine between a male and a female. I might in all innocence be committing an offence. I think this Bill as originally drawn was very sensible, and was one which certainly commanded my wholehearted support, but the more we attempt to embroider it and add modifications the more we detract from its real value. I sincerely hope that we shall pass this Bill as nearly as possible in its original form.

Lord WYNNE-JONES

I am slightly puzzled by what my noble friend Lord Leatherland has just said. As I understand it, this Amendment does not write into the Bill specific provision for anything being illegal on the grounds of the sex or size of the animal. It says that the Nature Conservancy Council in advising the Minister may suggest that it is desirable to do it in this way. They will presumably consider at the time whether it is practicable. It is then up to the Minister, with his expert advice, to consider further whether it is practicable. In other words, we are not writing anything into the Bill except a permissive statement to a clause allowing the Nature Conservancy Council to advise the Minister in a way which they could not do at present, and for the Minister to take action by order, which apparently at the moment he could not take. It seems to me that this is quite different from saying that we are writing into the Bill all sorts of new prohibitions. As I understand it, that is not being proposed by the noble Earl, Lord Cranbrook. Rather it is granting permission primarily to the Nature Conservancy Council.

Lord MOWBRAY and STOURTON

I am in complete agreement with the noble Lord, Lord Wynne-Jones, in his interpretation of what my noble friend is trying to do. I have a certain amount of experience of the South Esk and Tay rivers. Amateurs occasionally read in the local paper, "Pearl found worth £10,000 ". The following Sunday you can be assured there are literally hundreds of amateurs out taking the oyster shells, and in the case of the South Esk they do not throw them back into the river; they throw them on the bank where they eventually create a rotten smell and look very ugly. There could be a problem here, but I should have thought that this Bill was educational, amongst other things, so I do not think this clause can do any harm.

The EARL of CRANBROOK

Before the noble Lord, Lord Melchett, replies, I was asked to mention some other animal which is likely to be affected by this clause. During our debates on this Bill, the noble Viscount, Lord Massereene and Ferrard, and the noble Earl Lord Arran, both mentioned the decrease in the number of common frogs and toads, which is apparent to almost everybody who lives in the country. The example given by the noble Viscount, Lord Massereene and Ferrard, was probably due to pollution or to the filling up of ponds, drainage from silage pits, slurry in ponds and the like. Those are the factors which are having a major effect, but which one cannot deal with under a Bill of this nature. Both frogs and toads are much in demand in biology classes in schools, and to a lesser extent, I believe, in universities—though I never went to a university so I do not know. In some parts of England there is a considerable trade in them.

At the moment, the population in the areas where there is trade—and "for sale" advertisements appear in trade papers—seems to be sufficiently large to be able to sustain it. But if that trade increases—and there is every possibility of its doing so, because it is a relatively new market which started only in the last decade or so—a serious position could arise and we should have to start defending what we have always looked upon as two very common animals. None of us would want to see little boys branded as criminals because they took some frog spawn or tadpoles and put them in a jar to keep them. It is not possible to raise animals on a commercial scale in that way, so the commercial people would not do it. In that case it would be necessary to protect only the adult animals and not the juveniles.

Lord MELCHETT

May I say that I have been much impressed by the arguments put forward in favour of these Amendments by noble Lords on all sides of the Chamber and by the further examples which have been given to indicate the way in which they might be moved. However, I still feel that we may not have thought through all the ramifications. To give one small example, will the Amendments allow protection to adult insects and not to the pupae, and if so is this desirable? If the noble Earl, Lord Cranbrook, would be prepared to withdraw this series of Amendments, I undertake seriously to consider the whole question, particularly in view of what has been said this morning, and if appropriate to move Amendments at the next stage of the Bill.

Lord HOUGHTON of SOWERBY

When my noble friend is giving further consideration to this matter, whether or not the noble Earl, Lord Cranbrook, agrees to withdraw the Amendment, I hope that difficulties of enforcement will not of themselves disqualify a clause of this kind from a place in the Bill. For example looking back over the Race Relations Act, and considering the Sex Discrimination Bill as we shall shortly do, we see that in these days we are passing a good deal of legislation in Parliament as much for educational purposes as for law abiding purposes. After all, the clauses in the Sex Discrimination Bill may be riddled with causes for cynical comments about difficulties of enforcement, but we shall no doubt retain them in the Bill because they will be necessary to convey the message from Parliament to the people.

Obviously, there are always difficulties of enforcement in a matter of this kind. We are dealing with wild life and the activities of many different kinds of people, some commercially motivated but others quite innocent—children as well as adults. We must bear in mind that this is a Bill to protect wild creatures and the bias must be in favour of the protection of the species and not the protection of human beings who, on the whole, can protect themselves quite well. If there is difficulty in dividing up a species for protection as between sex and size, then I think one should protect the lot. That is the purpose of the Bill.

I sincerely hope that my noble friend will take into account the underlying purpose of the Bill, and the need in these days to err on the side of strictness rather than laxity in matters of protection. The access of people to the countryside, the opportunity for the motorist to go anywhere, the person who is unsophisticated and ignorant about country life and about species—all these constitute serious additional dangers to wildlife and to plants in this country. One of the notable features of your Lordships' House is that it gives so much care and attention to this part of the heritage in this country.

Baroness GAITSKELL

I wish to support my noble friend Lord Leatherland on this matter. I am not very well educated in the matter of wildlife and I think that the Bill may be educational. But it should not make too great demands, as it will affect many people who, like myself, do not know a great deal about wildlife. Today I learned a very interesting fact, when a noble Lord opposite said that the oyster started life as a male and ended up as a female. I think that until today I have considerably underrated the wisdom of the oyster. I still support my noble friend Lord Leatherland.

Earl FERRERS

I wish to introduce only one possible note of discord, that is to disagree with the noble Lord, Lord Houghton of Sowerby. I hope that when the noble Lord and my noble friend reconsider this matter, they will consider whether the proposal will be enforceable. I do not believe that it is right or sensible to produce Acts of Parliament which contain a whole minutiae of offences and no one knows whether or not he is committing them. The noble Lord referred to the fact that these days we are introducing Bills which are as much to educate people in their way of life and thinking as they are to prosecute them for the offences they commit. I believe this to be a very real danger, and that we are cluttering ourselves up with Bills and laws which are totally unenforceable and which render the individual quite incapable of knowing whether he is on the right or the wrong side of the law. I hope that the noble Lord, Lord Melchett, will consider very carefully whether any Amendments to this Bill will be practicable and enforceable. Of course we all want to protect the wild species, but we do not want to make life so intolerable for the average person that he does not know what he is doing.

Lord CRAIGTON

If my noble friend who has just sat down is correct, then all the Acts concerned with the protection of birds, which work so well today, would have failed in their purpose, which they have not.

Lord HALE

I was returned to Parliament on behalf of the people of Oldham, not on behalf of the natterjack toad. I disagree entirely with the observations of the noble Lord, Lord Houghton of Sowerby. I have listened now to something like six different interpretations of the Amendment, and with my own limited faculties I have not been able to decide what it means. I agree with every word spoken by the noble Earl, Lord Ferrers. I do not know how a constable, who is already grossly overworked and dealing with major crime, will be able to enter into all these botanical studies. I do not want to make a false argument. I appreciate that there can be designated officers and I accept the noble Lord's intent to try to stop a trade in rare flowers and animals.

I could not follow the arguments about sex. This is a difficult matter. The only case that I ever remember that determined the sex of an animal dealt with a human being. In that case, of the Chevalier d'Eon, the greatest of the Lord Chief Justices, Lord Justice Mansfield, gave a ruling on law which he afterwards admitted to be wholly wrong and which he reversed. The jury made a finding of fact which a post-mortem on the Chevalier d'Eon proved to be truly and wholly wrong, too, because he was found to be virile, although not very much so.

The noble Earl who moved the Amendment has a point in which he sincerely believes, and which he regards as being of importance in a certain sphere. The noble Lord, Lord Melchett, says that Amendments have been made, that there is to be a Report stage and we shall have an opportunity of looking at this again. If we are to look at it again, I think that the noble Earl should accept the noble Lord's invitation to put his Amendment in a form in which it will be more intelligible and less liable to misapprehension.

Lord ROBBINS

Those who are suggesting the withdrawal of the Amendment have failed to put to themselves the critical question of whether in this instance this permission is likely to be overdone. After all, the recommendations are likely to be made by experts. They will be assisted, as regards enforceability, by the high officials of the Home Office advising the Secretary of State. In general principle I am entirely in favour of the sex discrimination proposals, but one can argue too much by analogy. It may be that in the latter cases I have mentioned it can be overdone. I should not have the slightest fear that it would be overdone in the case which your Lordships are now considering.

The Earl of CRANBROOK

I must confess that I am not convinced by any of the arguments produced against this Amendment. All that the noble Lord. Lord Melchett, could say was that he did not quite know whether or not it could be applied to pupae, but quite obviously it can. That is the size of the animal and I should have thought that it could perfectly simply be applied to it.

Other noble Lords have expressed fear at an extension of a Bill, but they have failed to see that this is only a permissive extension, as the noble Lord, Lord Craigton, made clear. It gives the Nature Conservancy and the Minister a greater width at which to look at a problem, and it if leads to any unnecessary Orders, then the Orders are subject to control of both Houses of Parliament; and if we find that the Nature Conservancy is too often advising a Minister to make extensions we can always stop it.

I feel strongly about this matter and I think that the general feeling of the Committee is with me. I do not propose to withdraw the Amendment, but I should be very happy indeed to look at any Amendments to it which the noble Lord produces at a subsequent stage. We want to establish the principle that we wish to make this a Bill which will last and which will be useful, and I think that the best course would be to establish that now.

Lord MELCHETT

I had hoped that the noble Earl would withdraw these Amendments. When I asked him to do that I said that I had listened very carefully and had taken on board all the points which noble Lords made about this matter. I accept many of the points made in favour of the Amendments. I readily acknowledge that fact. However, these Amendments lay a duty on the Nature Conservancy Council, for example, to advise the Minister, in particular respects rather wider than any duties laid on them so far by the Bill. I would have hoped that the noble Earl, in view of the assurance that I have given about accepting a lot of the argument and reconsidering his Amendments carefully, would withdraw the Amendments if only to give us a further opportunity of discussing them with the people who will have to carry them out.

The Earl of CRANBROOK

We can do that. I should be happy to join in those discussions.

Lord MELCHETT

I was asking the noble Earl whether he would withdraw his Amendments so that we could have these further discussions.

The Earl of CRANBROOK

I would ask the noble Lord to withdraw his request and have the discussions after we accept it.

Lord MELCHETT

The other advantage in asking the noble Earl to withdraw his Amendments at this stage is that we will be able to get the details right with the Nature Conservancy Council and, if the Amendments are acceptable to the Government, put down Government Amendments at the next stage. There will be nothing to stop the noble Earl from putting down Amendments at the next stage if I do not come forward with suitable Government Amendments.

In view of the co-operative spirit in which this Bill has passed through the other place and here, and in view of the very late stage in this Bill's passage—we have discussed it, I think, twice before—I hope that the noble Earl will not now press me at this stage to accept these Amendments but would accept the generous (I think) assurances that I have given and will withdraw his Amendments at this stage and allow us to consider them very carefully before the next stage.

Lord FOOT

Before the noble Earl replies, may I say that I am a wholehearted supporter of this Amendment but I would ask him to consider what the noble Lord, Lord Melchett, has said; because I think it would be most unfortunate in a Bill of this kind if this matter were brought to a Division. I think it would introduce a spirit of animosity into our discussions. I am sure that we can rely on the assurance given by Lord Melchett that this will be seriously considered and that he will be coming forward with something of this kind at the next stage of the Bill.

The Earl of CRANBROOK

By nature I am an obstinate man; but I will try to be unnatural and beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 2, as amended, shall stand part of the Bill?

12.24 p.m.

Lord STOW HILL

I should like to raise one point on the question of whether Clause 2 shall stand part of the Bill. It is for Parliament to decide what ought to constitute a breach of the criminal law and I speak as one who has great sympathy with the purpose of the Bill. I do not want to create any difficulties in its coming on to the Statute Book, but I should like to call attention to the words in Clause 2: any person without reasonable excuse ". It is an absolutely fundamental principle, surely, of our legislation that the citizen should know whether he is committing a criminal offence, what is the criminal offence which is set up by Parliament, and that it should be in language which is clearly and easily understood by the citizen.

Clause 2 makes it an offence, and quite a serious offence, for an individual to offer for sale or to have in his possession for sale live or dead creatures of a particular type. It is an offence for him so to do unless he has a "reasonable excuse" for so doing. A learned judge sitting on the Bench with a case under this clause before him has to ask himself what is, in the circumstances of this case, a "reasonable excuse". What criteria is he to apply in answering the question whether an excuse put forward by the accused person is a "reasonable excuse" within the meaning of the clause or not?

I am perfectly conscious that the expression "without reasonable excuse" appears over and over again in legislation setting up criminal offences. The expression appears again in this Bill in a number of succeeding clauses, for example in Clauses 4 and 5. Learned judges are told that when they try to answer a question of that sort to themselves they must look at the language of the Act that they are applying, conceive its general purpose and try to set a reasonable, sensible meaning on the expression. But I should have thought that it really was extremely difficult for any learned judge, with the best will in the world, to apply that sort of criteria in the case of Clause 2. I am not a judge and I have never sat on the Bench, but I think it would be extremely difficult to decide in an individual case whether what the accused person asserts on his own behalf does or does not constitute, within Clause 2, a "reasonable excuse ".

I am very fond of toads—not the human sort, but the other sort. If asked what was a natterjack toad, as set out in Schedule 1, I should have no idea; nor would I know any more of what a natterjack toad was if I looked at the Latin description and found it was a bufo calamita. Let us suppose that I appeared before a learned judge and I sold toads of that sort—and the noble Earl who introduced the Bill discussed a moment or so ago the circumstances in which toads are sold. Suppose that I said that I had never heard of the expression "natterjack" but that I sold toads, and I still do so, that I make a lot of money out of it; but that otherwise I am a poor man and have no means of livelihood except by carrying on my business of selling natterjack toads and similar creatures. Would I have a reasonable excuse? I would not know, if I were a learned judge, how to answer that question. It is wholly contrary to our whole legislative tradition, I submit, to put a learned judge in the position of, in effect, having to decide according to his own ideas as to what was reasonable and what was not reasonable and whether or not the accused person has transgressed against the criminal law.

I raise this point simply on the Question, Whether this clause shall stand part of the Bill, because not only is it fundamental to this clause but it occurs later, and I cannot find any indication from the general language and purport of the Statute which might afford me, at any rate, guidance if I am trying to construe those words in the conduct of a case from the judicial Bench. I hope that the noble Earl will give some consideration to that between the present stage and the next stage of the Bill. I assure him and the Committee that I am not desirous in the least of being obstructive and that my intention is exactly the opposite. But what is one doing in this clause? One is setting up a number of rather serious criminal offences. If one looks to see what the penalty is, one goes to Clause 11. The penalty is £100 on summary conviction; and if you commit a number of such offences each is to be treated as a separate offence; so that if you sell 12 natterjack toads, for example, the maximum fine is £1,200.

These are serious offences. In any event, surely it is part of our democratic instinct that it is always serious to transgress the criminal law, that one should not do so, but that one should live within it. I believe, as I hope the Committee believe, in the rule of law being supreme in this country and that this is a principle sacred to it and one which should always be maintained so far as we can. I can assure the noble Earl that I am not trying to be obstructive—and I hope that he and the other members of the Committee will accept that—but I raise this as a matter of principle for it seems to me that it requires further consideration.

The EARL of CRANBROOK

I would be very grateful if the noble and learned Lord could produce Amendments with a phrase better than "without reasonable excuse" which, as he said, is a common form in a great many Acts of Parliament. For that reason it is in this Bill. I am not learned in law; I have sat on a Bench for many years and I have had many excuses put before me. I have had to decide whether or not they are reasonable. But if he thinks that this is a difficult point, perhaps he will consider this between now and the next stage and let us have an Amendment in place of it. It is intended to protect people who have a reasonable excuse, whatever that may be, and who have done something without any criminal intent. One wants to find something which covers that.

Lord STOW HILL

I will certainly give the matter thought to see whether I can find a form of language which may be more acceptable. I am only too glad to help in any way I can.

Lord HOUGHTON of SOWERBY

Will my noble and learned friend Lord Stow Hill consider a simple Amendment to delete the words "without reasonable excuse"? Everybody will then know where they are, and adequate protection will be given. Otherwise, if the reasonable excuse is so wide that any excuse is reasonable, there will be no protection at all.

Lord LEATHERLAND

I sincerely hope that my noble and learned friend Lord Stow Hill will not accept the suggestion put forward by the noble Lord, Lord Houghton of Sowerby. We see from the Schedule that one of the creatures to be protected is the smooth snake. Let us assume that I am walking through Epping Forest and a serpent comes wriggling towards me. I stamp on its head because I think it is an adder. But subsequent inquiry descloses that it was a smooth snake. I have no reasonable excuse. I cannot go before the Bench and say, "I thought that was an adder ". That is no excuse at all. I will be fined £100 or sent to prison—probably in default. My noble friend's suggested Amendment is not going to meet this case.

Clause 2, as amended, agreed to.

Clauses 3 and 4 agreed to.

Clause 5 [Protection of rare plants]:

12.34 p.m.

The Earl of CRANBROOK moved Amendment No. 7:

Page 2, line 15, at end insert— (" 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 twelve 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 that protected plant, he shall be guilty of an offence under 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 twenty-eight days before the commencement of the work.")

The noble Earl said: In the absence of the noble Lord, Lord Beaumont of Whitley, who has to be in Strasbourg, I beg to move this Amendment. This proviso was in the wild plants Bill which the noble Lord, Lord Beaumont of Whitley, introduced last year. He said on the Second Reading of the present Bill that he would move an Amendment to introduce it into this Bill at Committee stage. A large number of the rare plants which are in the Schedule are in Sites of Special Scientific Interest, most of them in mountainous districts, rough grazing, and the like, and most of those SSSIs were chosen because they had colonies of those plants in them. Rare plants tend to be found in discrete colonies as opposed to wild animals which even if rare, tend to be spread fairly widely over their natural habitat. So if you destroy several acres of land you may not kill more than one or two animals, but if you destroy the colony of rare plants, then you have destroyed them all.

Until recently in areas of that kind, on which very small agricultural operations took place, such as herding flocks of sheep or cattle, and the like, you were unlikely to do any damage to a colony of rare plants. Recently, a new spray was introduced to kill bracken, which is a pest on many areas of that nature. The only way in which you can kill bracken economically is by spraying from an aeroplane—inevitably a relatively inaccurate method—and, either by drift or misfortune, it is possible that the spray could fall on to a colony of wild plants and exterminate the lot.

That raises a problem which the new clause in the noble Lord's Bill was intended to meet: but provided the Nature Council, which had declared the place an SSSI, gave notice to the owner or occupier every year of the site on which the rare plant was growing and exactly where the plant grew, the owner or occupier would be expected to give 28 days' notice before he undertook arty operations which were likely to damage it. At the moment the only operation one can think of is spraying from the air. It is not an onerous burden; on receiving his notice certificate at the beginning of the year, he can write back immediately and say: "At some time during the year, 28 days after today, I hope to spray the bracken ". The Nature Conservancy Council can then either make some financial arrangement with him, or others, that he does not do it, or if the colony is small it can be covered with a plastic sheet, or in the last resort the plants can be dug up and replanted in an exactly similar habitat, where they will continue to flourish. Those are the reasons which led the noble Lord to include them in this Bill, and those are the reasons for asking the Committee to include them in this one. I beg to move.

Lord MELCHETT

As the noble Earl has explained, this Amendment would require owners or occupiers of land within a site of special scientific interest who had been informed in writing by the Nature Conservancy Council within the previous 12 months of the presence of a protected plant on that land to notify the Council in writing 28 days before commencing any work that would destroy that plant.

When we debated the Wild Plants Protection Bill last November, your Lordships will remember that I reserved the Government's position on an identical provision. There was no equivalent provision in the original print of this amalgamated creatures and plants Bill as it was introduced in another place. As your Lordships will know, these sites of special scientific interest are declared under the National Parks and Access to the Countryside Act 1949, but their only legal effect, at present, is that the local planning authority must consult the Nature Conservancy Council before giving planning permission for any development. The landowner is not placed under any legal obligation at the present time.

I can appreciate the need to try to strengthen the protection afforded to protected plants. But this Amendment would place a legal obligation on owners which was not envisaged when the sites were first notified. The Nature Conservancy Council fears that such a provision would upset the friendly relationships which they have built up over the years with the owners of over 3,000 sites. As an alternative to the proposal, the Council have devised a voluntary scheme which may offer the strong protection which the noble Lord, Lord Beaumont of Whitley, and the noble Earl, Lord Cranbrook, are seeking. The Nature Conservancy Council are inviting the sponsors of the Bill to supply a list of locations where protected plants and creatures—and I stress the inclusion of creatures—are known to exist. The Council would review the list. It is highly likely that those locations which are not already within national nature reserves and sites of special scientific interest would then be notified as SSSIs. The Council is prepared to write to all landowners and occupiers of SSSIs who are known to have a protected species of plant or animal on their land and to seek their co-operation in the vital task of safeguarding them. The Council is also willing to undertake with the sponsors a review of the effectiveness of these voluntary arrangements after a reasonable period of time.

I stress that, in our view, voluntary arrangements are likely to be at least as strong as the statutory proposals put forward by the noble Earl, both because the Nature Conservancy Council has undertaken to cover both plants and creatures within the voluntary scheme, and also because of the nature of the problem and the nature of the obligations which we are seeking to place upon the owners of land. I feel that noble Lords on all sides will agree that something which is entered into voluntarily by both sides is much more likely to work in practice. In view of the successful voluntary arrangements which already exist between the Council and owners and occupiers of SSSIs, I hope that the noble Earl will be able to accept the proposals which I have just outlined as a satisfactory alternative and will not feel obliged to press the Amendment.

Lord CRAIGTON

I am a little worried about this. I understand the point of view of the Nature Conservancy Council and of the Minister. I might make an obligation and adhere to it, but I might equally let my land and then I could not be sure that it would be kept to. Also, as the Minister knows, there are uncooperative owners, to put it mildly. Such people have deliberately taken action against precious wild life on their sites. I would not for a moment make a suggestion to my noble friend as to what he should do, but I feel that we in this House should let the Nature Conservancy Council know that we should be prepared to strengthen their hand if they thought it posssible for that to be done.

Lord CAMOYS

I had intended to move an Amendment to the Bill but, owing to circumstances beyond my control and relating to the noble Lord, Lord Goodman, about which I do not propose to go into detail, I was not able to do so. However, your Lordships permitting, I intend to move a "blanket" Amendment at Report stage covering many of the points that have worried certain Members of this House. I hope to draft it so that people can understand what is intended. For example, one cannot move wild orchids nor the wild pasque flower. You cannot replant them; it never works. I shall try to make my Amendment as clear as possible, and add to it certain things that have been left out of this Bill. I also hope to have an opportunity of discussing the case of the otter.

The Earl of CORK and ORRERY

I am not too happy about the Amendment, because I think that, in certain cases, it may deprive plants of protection which they might otherwise enjoy. That would be so in the case of an obstructive landowner who was determined to take no notice of the Nature Conservancy Council or anybody else. His arm will be strengthened by the fact that all he has to do to justify the destruction of a plant or a colony of plants is to tell the Nature Conservancy Council that he intends to do so. Then it will be all right and the Council cannot stop him. I believe that my noble friend Lord Camoys was almost certainly right in saying that one cannot move wild orchids, and I do not believe that one can move any plant totally regardless of the season. I should hesitate to say that one could do so. So I doubt whether there is much protection there. However, the chief danger seems to be that the really awkward landowner can do exactly as he likes as long as he says he is going to do it.

Lord MOWBRAY and STOURTON

The noble Earl has my sympathy. I feel that the voluntary co-operation of landowners and farmers is far more likely in the long run to achieve the object of the Bill. I can think of ways in which plants might be endangered other than those suggested by my noble friend Lord Cranbrook. I can conceive of areas where landowners might decide to plant trees on bare patches where some of these rare plants flourish. I believe that that is quite likely to happen. Barren areas are being reclaimed. I feel that, on the whole, co-operation would be better, the more so as the Nature Conservancy Council does not seem to want these powers.

The Earl of CR ANBROOK

I am inclined to agree with the noble Lord that a voluntary scheme of this nature is very much better, though the trouble is that one is a little cynical about voluntary arrangements because, so far as archae- ological sites are concerned, there has always had to be the ultimate sanction that the Department was able to step in when a site was in danger. I feel that the noble Lord, Lord Melchett, would do well to consider the difficulties of archaeologists in relation to important sites and the occasions when a legal sanction has had to be invoked.

Fundamentally, what is important, not only with rare plants but with scheduled houses, is that there ought to be some obligation upon a statutory body to remind the owner that he has the plant or house in his possession. All too often, an owner of a site forgets that he has a rare plant or something of the sort, especially if he is not particularly interested in it, just as he may forget that one of the houses which he owns or the house in which he lives is scheduled. We want to make quite certain that, whether legally or by voluntary arrangement, people are constantly reminded of what they have and of their obligation to maintain it. However, I am satisfied with what the noble Lord, Lord Melchett, has said and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 6 [General exceptions]:

12.48 p.m.

Lord MELCHETT moved Amendments Nos. 8, 9, 10 and 11:

Page 2, line 18, leave out (" reduction into possession or ").

Page 2, line 19, leave out (" reduction into possession or ").

Page 2, line 21, leave out (" reduced into possession or ").

Page 2, line 22, leave out (" reduced into possession or ").

The noble Lord said: I spoke to Amendments Nos. 8, 9, 10 and 11 with Amendment No. 1 and I beg to move them en bloc.

On Question, Amendments agreed to.

Clause 6, as amended, agreed to.

Clause 7 [Variation of Schedules]:

The Earl of CR ANBROOK

Amendment No. 12 is a drafting Amendment. I beg to move.

Amendment moved— Page 2, line 34, leave out (" and ") and insert (" or ").—(The Earl of Cranbrook.)

On Question, Amendment agreed to.

The Earl of CRANBROOK

Amendment No. 14 is another drafting Amendment. I beg to move.

Amendment moved— Page 2, line 37, after first (" or ") insert (" any ").—(The Earl of Cranbrook.)

Lord MELCHETT

I had understood that this Amendment was contingent on the acceptance of Amendment No. 6. I may have misunderstood that point. I wonder whether the noble Earl would let me look at this matter again before the next stage, because we had understood that it was likely to be moved only it' the noble Earl's Amendment on restrictions according to size and sex was accepted.

The Earl of CRANBROOK

I believe that this Amendment is purely drafting.

Lord MELCHETT

I would repeat to the noble Earl—

The Earl of CRANBROOK

I am happy to withdraw. Perhaps if the noble Lord thinks it is unnecessary he will reconsider it. I thought it effected emendation of the English. However, I beg leave to withdraw.

Amendment, by leave, withdrawn.

The Earl of CRANBROOK moved Amendment No. 15:

Page 2, line 39, at end insert— (" (2) An order made under this section may be made so as to have effect either at all times while the order is in force or during such period or periods as are specified in the order.")

The noble Earl said: This Amendment is not exactly consequential upon the Amendments we have already discussed. It relates to a different problem. I referred to it when we were speaking about frogs and toads and protection being necessary against commercial exploitation only during the breeding season when they congregate in ponds and are therefore very vulnerable. We have of course the same problem with seals, which congregate on islands during their breeding season when they are very vulnerable, and they are protected in exactly the same way. I do not think I need say any more than that. The intention of the Amendment is fairly obvious. I beg to move.

Lord MELCHETT

As the noble Earl has said, this Amendment would enable the Secretary of State to make an Order that would be in force for a specified period or periods of the year only. Amendment No. 19, which I think is consequential on this one, would require the Nature Conservancy Council to offer appropriate advice. Once again, I have some sympathy with the aims of these Amendments, but the drawbacks which I mentioned when we were discussing partial protection by size and sex would seem to apply to some extent here.

There is one additional point. Protection by periods of time is tantamount to the imposition of close seasons. Such a measure is normally aimed at keeping stocks of common species high for sporting purposes rather than at preserving rare species. But again it would be helpful if the noble Earl could give us some examples, even if only hypothetical ones, of the cases he is thinking of. In view of the full debate on the Amendments designed to allow conservation on the grounds of size and sex, it would be a good thing if the noble Earl would withdraw his Amendment to enable us to look again at this one as well. I should be happy to hear the views of any other Members of the Committee who have something to say on this Amendment.

Lord CRAIGTON

I made a short interjection before. I make the same one again. I hope that the noble Lord will look at this point because, even if we cannot find a sound reason now, within the next 10 or 20 years there are to be so many sound reasons for a close season.

The Earl of CRANBROOK

With the leave of the Committee, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 7, as amended, agreed to.

Clause 8 [Power to grant licences]:

12.55 p.m.

Lord HOUGHTON of SOWERBY moved Amendment No. 16: Page 3, line 37, at end insert (" after consultation with the Royal Society for the Prevention of Cruelty to Animals, the National Farmers' Union, the Conservation Society and the World Wildlife Fund (United Kingdom)").

The noble Lord said: I beg to move Amendment No. 16, requiring consultation with the Royal Society for the Prevention of Cruelty to Animals, the National Farmers' Union, the Conservation Society and the World Wildlife Fund (United Kingdom). This Amendment arises from a comment I made on Second Reading about the need to require the Minister to have proper consultations with those who can advise him before he makes an Order for the destruction of any species, covered by this Bill, which might be endangering the health of other species or of human beings. Unfortunately, I thought that by my Amendment I was protecting the badger, but I found, on the advice of the noble Earl, Lord Arran, and of the noble Lord, Lord Foot, that I had protected everybody else but not the badger. Happily, they made good my omission by a similar Amendment to Clause 16, which I shall warmly support in due course.

I have a profound suspicion that Ministers do not always read the papers put in front of them, or do not read them carefully enough, or have not taken enough advice about them. I know the pressure under which Ministers work, and one knows what is stuffed into their red boxes when they go home weary, red-eyed and tired at night. I want to make sure that before an Order is made for the destruction of species under this Bill the Minister has consulted bodies which have greater leisure, probably more concern, and certainly a wider experience than most Ministers will have who are called upon to make Orders under this Bill. So I thought of those whom we might require the Minister to consult. He is not, of course, bound to take their advice. He may have some overriding public interest in mind which he thinks must take precedence over the advice of such responsible bodies as those named in the Amendment.

If there are any other bodies which should be consulted, I should be glad to add their names to the list. If there are any in the list which your Lordships think are not qualified to give the Minister advice, I would carefully consider their deletion. But a serious point is involved here. I end my remarks by saying that I believe we are reaching the stage when conservation must be more than permissive; it must be mandatory, and in my opinion it has to be very strict. If we envisage this country, indeed the world, in a few years' time, with the present rate of population increase, tourism, travel, mechanical devices and powers of destruction, we see that the perils are enormous. We should provide adequate safeguards before we begin to destroy species protected by this Bill. When we reach Clause 16 I shall be able to reveal my profound affection for the badger, which is perhaps a little deeper than my affection for some of the species covered by the Amendment I am now moving; nevertheless, I am very glad to be of service to them as well.

Lord MELCHETT

I wonder whether it would help the Committee if I gave an indication of the Government's view on this Amendment at this stage. The Amendment, as my noble friend has explained, would require the Minister of Agriculture, Fisheries and Food, or in Scotland the Secretary of State, to consult'. the list of bodies named in the Amendment before granting a licence to kill or take protected wild creatures to prevent the spread of disease. It is not normal practice to mention the names of non-statutory bodies in Bills, because it would be so difficult to update the legislation to conform with changes of name, mergers and so forth between such bodies. And it would seem invidious to select some names to the exclusion of others. If formal consultation were thought appropriate, it would be better to follow Clause 14(2) of this Bill and oblige the Secretary of State to consult such bodies as he considers appropriate. This Amendment would, however, impose a requirement to consult before any licence could be issued. Proper consultation would take perhaps two to four weeks at a minimum and the situation could well arise where much more rapid action was required to stamp out disease. Therefore, it appears that statutory consultation of this type is not a practical proposition in this situation. I hope to have more helpful comments to make on the rather similar Amendment of the noble Lord, Lord Foot, to Clause 16 which I understand is the clause which my noble friend hoped to strike up with this Amendment. In view of that undertaking, I wonder whether my noble friend would consider withdrawing his Amendment.

Lord CRAIGTON

May I ask the noble Lord whether consultation with the Nature Conservancy Council would come under not being mentioned or whether it should be specifically mentioned because it ought to be consulted.

Lord MELCHETT

This underlines the point that I made about the difficulty of coming up with any list. There are two difficulties. The first is that it is very difficult to get the right list; anybody who is left out is likely to feel offended. Secondly, as bodies other than non-statutory bodies change or merge, or their character changes as the character of voluntary societies will change over the years, the Act will become seriously out of date and legislation would be needed to amend it. That is the objection to listing any particular bodies.

Lord CRAIGTON

Including the Nature Conservancy Council?

Lord MELCHETT

The Nature Conservancy Council is a statutory body and it is to them that the Minister would be likely to turn for advice when he needed it. But it would be better in the case of any such provision as was considered necessary—and I hope I have made it clear why the Government do not think it is appropriate—for it to be left to the Minister's discretion as to whom he consults.

Lord HALE

The noble Lord is giving the Government's views before he has heard the comments of the Committee. I rose and then sat down as a matter of courtesy when the noble Lord rose and I shall listen intently to the observations that are made by anybody on the other side of the Chamber. However, from this side of the House may I say to the noble Lord, Lord Houghton of Sowerby, that it is suggested from time to time that the Civil Service is increasing in numbers and should be diminished. Secondly, I think that the arguments which were put by the noble Lord, Lord Houghton, in favour of his Amendment were the precise opposite of the impression which he intended to convey. He made a plea about red-eyed Ministers going home at the dead of night with a box full of papers, so intent and absorbed that they left secret papers in the train despite the fact that they had a carriage to themselves. He said that the way to deal with this is to add four completely useless papers to their box. It is quite obvious that the Government will be in constant con- sultation with the Nature Conservancy about every problem raised in this Bill. In my experience, the RSPCA almost always entirely disagree with the National Farmers' Union on any point about animals. There are to be four more consultative papers which the Minister will have to consider. There will be a note on them saying, "You need not take any notice of this, but we must be polite ", but they will add to his labours and will make no contribution. It is open to these four bodies to make representations whenever they like. To embody a special clause in the Bill saying that the Minister has to do that seems to me to be wasting Parliamentary time and adding to his statutory troubles.

Lord BALFOUR of INCHRYE

I was surprised at the omission in the Amendment which was moved by the noble Lord, Lord Houghton of Sowerby. The National Farmers' Union is included both here and in the later Amendment dealing with the protection of badgers. If the National Farmers' Union are included, they are largely the employers. In these days of industrial democracy and worker participation I am shocked and surprised that the noble Lord, Lord Houghton of Sowerby, did not include the Union of Agricultural Workers, because I think that they have an equal say with the National Farmers' Union in the interests which the noble Lord, Lord Houghton of Sowerby, defined. If the Amendment were withdrawn and the suggestion of the noble Lord, Lord Melchett, were adopted, I have no doubt that we should revert to the Secretary of State having complete power to consult all interests. No doubt he will be able to assure us that the point I make about the Union of Agricultural Workers will be taken into consideration. However, I was deeply shocked that the noble Lord, Lord Houghton of Sowerby, who takes such an interest in labour relations, did not include the Union of Agricultural Workers.

Lord BALERNO

I was even more shocked that the noble Lord, Lord Houghton of Sowerby, has completely forgotten Scotland. We have a separate Farmers' Union and a separate society for the prevention of cruelty to animals.

Earl FERRERS

If one goes on like that one can say that one is equally shocked that the Farmers' Union for Wales were not considered, or, indeed, the Country Landowners' Association.

Lord MELCHETT

While I was pointing out technical difficulties in the Amendment of my noble friend, as we see it that is not the important point. A Minister who is to make an order to prevent the spread of disease under this clause will wish to consult as many people as possible. I can assure the noble Lord, Lord Craigton, that the Nature Conservancy Council will be one of those bodies. However, the important point to remember is that in a case where it is necessary to prevent the spread of disease the Minister may have to act so quickly that he will not have time to consult. This is the fundamental objection to the Amendment and it would be wrong to place the Minister under a duty which would prevent him acting quickly to prevent the spread of disease. For the moment this is an entirely hypothetical case because nobody has yet suggested any diseases which any of the animals currently in the Schedule would be capable of spreading.

Lord FOOT

I appreciate the difficulties in this Amendment as it is drawn which have been expressed by the noble Lord, Lord Melchett. However, I still hope that something may be saved of the Amendment of the noble Lord, Lord Houghton of Sowerby, and that its object may be fulfilled. As the Bill is now drawn—I am referring now to Clause 8—when the Minister decides to issue a licence for the taking or killing of a protected animal there is no requirement upon him to consult anybody. If I understand correctly the point of the noble Lord's Amendment, what he is worried about, and what worries me, is that a Minister should be protected against himself and protected against the possibility of making an error because he has not received the necessary advice from the people who know best. The situation is not met by Clause 14 to which the noble Lord referred. In subsection (2) of Clause 14 we read: The Secretary of State shall not make any order under Section 7 of this Act except after consultation with such bodies … as he thinks fit". Section 7 is an order adding an animal to the Schedule.

Lord MELCHETT

I think that the noble Lord has misunderstood the point I was making. I was saying that if an obligation were to be laid on the Secretary of State or the Minister, the wording to be used would be more appropriate if it followed the wording in Clause 14. I was not suggesting that the existing provision in Clause 14 covers the point which my noble friend was attempting to cover.

Lord FOOT

I was coming to that and I was going to ask whether the Minister would be prepared to consider an Amendment to Clause 8 requiring the Minister to consult before issuing a licence with such bodies as he may think fit, including, it may be, the Nature Conservancy. That would go some way towards meeting the difficulty and the concern of myself and the noble Lord, Lord Houghton of Sowerby, regarding the protection of wild creatures. Later on, I hope to introduce a somewhat similar protection for the badger. I will not speak about that now, but I wonder whether the Minister would be prepared to consider at a later stage of the Bill an Amendment of the kind that I have suggested.

1.10 p.m.

The Earl of CRANBROOK

I should like to intervene for a moment because I think a number of noble Lords have been unnecessarily suspicious. On this Amendment they are concentrating entirely on paragraph (d). There are four other paragraphs which vitally affect a great number of people in so far as they authorise the Minister to drive a coach and horses through the Bill. A number of people feel very strongly about this. In the experience of those of us who are members of scientific authorities and the like before any of these things are done the Minister always consults with the appropriate body to find out whether it is a sensible course to take. I have had very little experience of consultations to prevent the spread of disease, but in connection with the recent controversy about badgers. I attended at least two, possibly three, meetings of quite a number of bodies—I represented one—who were consulted by the Minister about this difficulty regarding badgers. I do not move in Ministerial circles and never have done but concerning conservation, though not the point which is worrying noble Lords, I have always assumed That the Ministers consult the appropriate bodies before they make any order under this sort of clause. For that reason I should not have thought of including it in so far as it refers to the conservation clause.

Lord MELCHETT

I was asked by the noble Lord, Lord Foot, whether I could consider something along the lines he suggested, and I may have misled the Committee by stressing the problems about the list of bodies, which I do not think is fundamental. In this case the fundamental problems seem to the Government to be these—and I stress that I am speaking about this Amendment and not the Amendment of the noble Lord, Lord Foot, which we shall come to later—and I stress again that this is hypothetical: were a disease to arise where it is necessary for the Minister to enable animals listed in the Schedule to be destroyed it may well be that the Minister would have to act very quickly. Noble Lords all know that under the Rabies Act Ministers are required to act very quickly in order to prevent the spread of disease, and only by acting quickly are they able to prevent a large number of animals and possibly human beings being made very That is the fundamental point which would have to be seized of in any suggestions noble Lords might wish to make to replace my noble friend's Amendment.

Lord BALERNO

May I suggest to the Minister that he might consult with his experts as to whether or not rabies could possibly be spread by certain of the specified animals, because if that were the case it would be essential that the Minister should act at once without consulting anybody else.

Lord MELCHETT

Again I may be guilty of misleading noble Lords. I mentioned rabies as an analogy, but of course the Rabies Act would not be overridden by the provisions of this Bill unless that were done specifically. So in the case of rabies Ministers will be able to act as they do at the moment.

The Earl of ARRAN

I wish to give my noble friend and the noble Lord, Lord Houghton of Sowerby, my fullest support. The die is seemingly cast, and what we now have to do is to ensure, so far as we conscientiously can, that we are doing the right thing. I was in South Gloucestershire last week with a Member of the other place—

Lord MELCHETT

I am sorry to interrupt the noble Earl but I have a suspicion in my mind that he is going to address the Committee on the subject of badgers. I had hoped that we could take the Amendment tabled by the noble Lord, Lord Houghton, and there are some points of which I have been given notice which my noble friend wishes to raise on Clause 16. I think it would be for the convenience of the Committee if we could take all those points together.

Lord HOUGHTON of SOWERBY

I am sure we want to get on and I will try to help, without prejudice to later discussion on badgers on Clause 16. I will endeavour to think of something better for a later stage in our proceedings. We have to bear in mind that at the present time we are talking about the species set out in Schedule 1. We are not under this Bill dealing with rabies but with natterjack toads, and so on, and the same urgency may not arise. Nevertheless, I do not wish to go further into the matter now. I beg leave to withdraw the Amendment, entirely without prejudice to the Amendment that the noble Lord, Lord Foot, will move on Clause 16.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

Clause 9 agreed to.

Clause 10 [Enforcement]:

Lord MELCHETT moved Amendment No. 17: Page 4, line 18, leave out from (" search ") to (" of ") in line 19 and insert (" that person if, with reasonable cause, he suspects him ").

The noble Lord said: the purpose of this Amendment is to remove a possible ambiguity in this clause. As drafted, it is not clear whether the "any person" referred to in lines 18 and 19 must necessarily be the same person as the "any person" in line 16. The Amendment would make it quite clear that a constable's powers of search are conditional upon his having reasonable cause to suspect the person not only of committing or having committed an offence, but also of having evidence on his person of the committing of an offence. I beg to move.

On Question, Amendment agreed to.

Clause 10, as amended, agreed to.

Clauses 11 to 15 agreed to.

Clause 16 [Amendment of s. 9 of Badgers Act 1973]:

1.19 p.m.

Lord FOOT moved Amendment No. 20:

Page 7, line 22, after ("inserted") insert— (" (a). at the end of subsection (2) the words "after consultation with the Royal Society for the Prevention of Cruelty to Animals, the National Farmers Union, the Conservation Society and the World Wildlife Fund (United Kingdom)", and (b).")

The noble Lord said: Some rather different issues arise here other than those we were discussing on the earlier Amendment moved by the noble Lord, Lord Houghton of Sowerby, because the object of this Amendment is to introduce into the Badgers Act the words printed on the Marshalled List requiring the Minister to consult with these various bodies before he issues a licence for the taking or killing of a badger in order to prevent the spread of disease. In dealing with the earlier Amendment, the noble Lord, Lord Melchett, made two points about it: first, that he thought the choice of these bodies was invidious and, indeed, there were objections to non-statutory bodies being brought into consultation and being nominated in the Bill. I see the force of that objection, but he himself said that it was not the main ground of objection. The real ground was that he thought that if the Minister was required to consult before issuing a licence that might in some cases impose unacceptable delay.

Whatever may be the situation with regard to other wild animals, I suggest that that requirement of urgency cannot arise, or is very unlikely to arise, in the case of suspected diseased badgers. I say that for this reason: the right honourable gentleman the Minister in the other place has already made it clear in correspondence and otherwise, that if and when the Minister is given the power to issue a licence for the gassing of badgers, the procedure which will be followed is that there will first be the taking of specimen badgers in the suspected affected areas. These specimen badgers will then be subjected to an autopsy. If there are found to be traces of bovine tuberculosis, then, and then only, will the Minister consider issuing a licence to someone to exterminate the badgers by gassing.

If that is the procedure which will be followed—and, of course, that seems to be a very sensible procedure—it will allow longer time, will it not, for the Minister, between the time when he takes a specimen badger to see whether there are traces of tuberculosis and, the time when he issues the licence for the use of gasssing, to consult with such bodies as it would be proper for him to consult. Therefore, I suggest that the objection which the noble Lord himself said was the major objection to the Amendment of the noble Lord, Lord Houghton of Sowerby, does not apply in the case of my Amendment to Section 9 of the Badgers Act.

I accept, as I did just now, that there are manifest objections to consulting these bodies. Indeed, I am not at all sure that, for example, the Conservation Society deals with matters of this kind at all. They paint with a very wide brush and cover a very vast field. Whether they would be a proper body for the Minister to consult with, I do not know. I should have thought it was possible to devise a form of words which would at least require the Minister to consult, in the case of badgers and before issuing a licence, with such other bodies as he thinks fit, including the Nature Conservancy Council. Obviously, I am not going to carry this Amendment to a Division, because as it stands it is defective on those grounds. But would the Minister be good enough to indicate whether, between now and the next stage, he is prepared to consider the Amendment on the lines I have just outlined? I beg to move.

The Earl of ARRAN

I give my strong support to my noble friend Lord Foot—support I also gave to the noble Lord, Lord Houghton of Sowerby, although his Amendment was not directly concerned with badgers. After the badgers, the die is seemingly cast. We must now ensure that insofar as we conscientiously can, we are doing the right thing. Last Saturday I was in the South of Gloucestershire, with the honourable Member of that constituency. A map was shown to me of the area to be covered and the action to be taken. Believe me, the Minister has set himself an awesome task—an inevitable task, he thinks, but none the less awesome for that. I pray that his efforts may be crowned with success. I pray also that, above all, we have chosen the right animal. The thought that we may not have done so is too terrible to contemplate. I would not care to have on my hands the blood of perhaps 1,000, perhaps 10,000, innocent animals, nor do I think the Minister, who is a humane man, would care for it. I beg the Committee to pass this Amendment or, alternatively, I beg the Minister to reply to it in a satisfactory sense. The Amendment carries the clearest assurance that in introducing the top animal welfare bodies, we may say to ourselves, cold-bloodedly if you like, that the badger did not die in vain.

1.25 p.m.

Lord HOUGHTON of SOWERBY

I strongly support this Amendment and any action which the noble Lord, Lord Foot, may decide to take upon it. I hope that we can get from the noble Lord, Lord Melchett, some assurance or explanation of what the Minister may have in mind when this Bill becomes law. The noble Earl, Lord Arran, has just referred to the map of the area over which this destruction might be proposed as soon as the Minister is free to make the order for that to be done. There is death and destruction of badgers waiting to be done under this Bill—let there be no mistake about that. It is perhaps the most serious clause in the Bill, because it is the most immediate in its action. It is to modify a Bill passed by both Houses of Parliament only very recently for the protection of the badger. It is going to be a strange state of affairs for the protection of badgers, if a Bill passed by both Houses of Parliament is applied, after many years of agitation to get the badger protected, and is then undermined more by the Minister than by anyone else.

Of course we understand what this destruction is intended to do. It is intended to reduce the risk of further infection in cattle by tuberculosis. It appears that there are some doubts among the experts as to whether the cattle infect the badgers, or the badgers infect the cattle. I want two things from the Minister. First, I want an assurance that whether it is in this form of words or in any other, the obligation to consult shall be in the Bill. It would be unlawful for the Minister to act without consultation under the terms of the Bill, as I hope it will eventually be passed. It may be that we do not achieve our purpose, but run into difficulties such as those explained by the noble Lord, Lord Balfour, a little while ago, that if one specifies bodies one probably leaves out some which should be in. There is also the difficulty of organisations changing their name, or fresh organisations being created which might claim to be brought within the ambit of consultation. understand these difficulties. It may be a form of words which will combine the obligation to consult before granting an order with not necessarily only such bodies as the Minister sees fit, but such bodies having an interest in animal welfare as he sees fit. Otherwise, he might consult, as he sees fit, with some body which many of us would not regard perhaps as important as others.

For example, I would not think it enough for the Minister to consult the British Medical Association or the Royal College of Veterinary Surgeons. I would not regard that as completely adequate for the form of consultation which we ask the Minister to undertake. This is a very serious matter. I sincerely hope that the Minister understands that it is not an easy proposition to ask your Lordships' Committee to undo what we have previously done to protect this animal, and to permit its destruction by methods not permitted under earlier Acts of Parliament. These are two most serious breaches of what the House originally intended. I can say quite definitely that if my area of Surrey were within the area of possible destruction on these grounds, which would bring the gassing equipment and the people on to land near where my badger setts are, I should feel deeply emotional and deeply indignant about it. I should want to be fully assured that this was really necessary in the public interest, and not merely in the interest of a small area of grazing land or something of that kind.

One has to consider the relative priorities here. Cattle are more easily replaced than badgers and have no more right to live, except on commercial grounds. There is a great deal of hypocrisy in our attitudes towards animals. We do not have our sense of priorities right; we do not have our relationships between one species and another right, nor do we have our relationships between animals and human beings right. I believe that if the world is to survive for the centuries ahead this will be one of the biggest issues which will be a condition of the survival of the world as we now know it, and not only for human beings.

I hope that this can be taken very seriously and that before we finish with this Bill we shall have something in it which will tie the Minister quite definitely to the obligation to have reasonable consultations. He will not be asked to act in a hurry, but even if he is he can have consultations very quickly. After all, bodies which are well acquainted with the problems, ecological, scientific and medical, of these issues are just as easily obtainable for consultation as the Minister's own officials. There is no difficulty about that. Ministers who want to consult quickly can do so. They have been known to consult in the middle of the night in order to decide some question of extreme urgency.

Do not let us hear from the noble Lord, I bee of him, that the Minister may have to act so quickly that he will not be able to get hold of the people who can give him proper advice. That, if I may say so with great respect, is sheer nonsense, and I speak with Ministerial experience on these matters. I hope, therefore, that we can get an assurance. I hope the noble Lord will be able to assure the Committee that when the Minister gets authority to make an order we may know something about it.

My final plea is, that the area of destruction should be as small as is consistent with testing the value of destruction, for the purpose of eliminating cattle disease. Do not let us have an overkill here, a much bigger overkill than is necessary to achieve the purpose. The areas of this map probably ought to be very much smaller, for a year's test or longer, to see whether the destruction of the badger reduces the degree of infection of cattle there. Do not let us have the badgers destroyed in the bottom half of Britain, and then find that, after all, perhaps it is not the badgers which are responsible. I beg of the noble Lord to give the Committee some assurance that the Minister will confine the orders to the minimum area necessary to provide adequate grounds for a test to be made on a matter upon which there is some veterinary doubt.

Earl FERRERS

This is an important Amendment. Nobody wants to see badgers destroyed. That is absolutely basic to people, whatever views they may have about this Amendment. But the noble Lord, Lord Houghton of Sowerby, rested the whole of his argument on the fact that there should be consultation. Whether or not this Amendment is accepted, he said there should be consultation before anything is done about the destruction of badgers. I do not believe that the powers which the Government will have under this Bill are wrong or too extensive. What we are considering here is whether, if there is an argument about badgers having tuberculosis, there should be a destruction of those animals in order to prevent the spread to cattle and thereafter to human beings. I do not believe that this is a matter for consultation. I believe the noble Lord, Lord Melchett, was right when he asked: if you consult where does consultation end? We had a few examples of that.

The noble Lord, Lord Foot, said that this is not really a very important point, because you can always cut down the amount of people whom you consult. But I would put this point. If there is a disease which may be transmissible to cattle, and thereafter to human beings, is it right that the Ministry, who have the right to protect—as Governments have the right to protect—people from disease, should consult with other people whose motives may be different? I do not think they should. Of course, the Ministry of Agriculture has always had fairly stringent powers with regard to disease. If the noble Baroness, Lady Summerskill, were here, she would have things to say—and indeed she has—on the question of brucellosis and how this can be transmissible to man, and how the Ministry has never taken enough action to cure that. Yet brucellosis can be transmissible by foxes. What about swine vesicular disease, swine fever and foul pest? The Ministry of Agriculture have very sweeping powers over all these diseases in order to control and contain the disease.

It is sometimes necessary to take very strong action against other people's animals which do not have the disease. Then we come to foot and mouth disease. Again, the Ministry have very wide powers in order to stop that disease. I do not believe the powers which the Government have under this Bill as it stands are unreasonable. Certainly, we would not wish to see the wholesale destruction of badgers, but if it were a fact that there were badgers which had TB and which could infect other animals in an area, and could then in turn infect human beings, I do not believe that would be an occasion when consultation should be required. I believe it would be an occasion when the Government should have power to take the necessary action.

Lord BALERNO

I should like to support my noble friend Lord Ferrers very much indeed. I think he has made the case most clearly for leaving things as they are under the control of the Minister of Agriculture. I should just like to add this to noble Lords who have proposed this Amendment. In the long run, it is to the benefit of the badger population that tuberculosis or other disease should be eliminated. Otherwise, these diseases may well become endemic in the badger population and the situation of the badger population will be worse than it was before.

Lord MELCHETT

I should like to agree wholeheartedly with what the noble Lord has just said. The fact is that bovine tuberculosis is endemic in badger populations in a limited part of the South-West of England. That is why the Government wish to have the power that we are taking under this clause. I spoke at considerable length on Second Reading on the position of bovine tuberculosis in badgers, and I do not intend to reiterate today everything I said then. However, I am in the unhappy position of being able to give the Committee some more information about bovine tuberculosis in badgers since I last spoke. It is an unhappy position from a personal point of view, because I am afraid that further evidence tends to support what we have been saying all along.

Experimental laboratory work has shown that the virulence of the organism isolated from badgers is similar to that isolated from cattle. Badgers infected with bovine tuberculosis have been found only in those parts of the country where breakdowns in cattle have persistently occurred. Examination of the records from 1971 in, for example, a larger area of North Avon in Gloucestershire shows that 105 out of 150 breakdowns have occurred within a half-mile radius of places where infected badgers were found, and a further 15 within a one-mile radius. I think that those figures emphasise that this is a local problem in the South-West of England, and it is something I shall be returning to rather later.

During a recent survey of a part of that area, 170 occupied setts were noted, of which 95 were in fields or hedges accessible to cattle. At two locations only a mile apart in another part of the area, 31 infected badgers have been found, and nine herd breakdowns have occurred. At yet another location eight infected badgers have been found and 21 herd breakdowns have occurred. The carcases of many other wild creatures and birds, the majority of which come from the problem areas, have been examined for the tubercal bacillus, but this bacillus has been discovered only in four; that is in two moles and two rats. I think that this was the point which the noble Earl, Lord Arran, raised as to whether we were going to be killing the right animal. The post-mortem findings in these four cases—the two moles and two rats—showed that the disease was not progressive, indicating that the two species have a high resistance to bovine tuberculosis.

It is considered from the evidence accumulated up to the present that apart from badgers no other wild species is involved in the spread of this disease. I should like to stress that unfortunately it appears that badgers are extremely susceptible to the disease. Referring to something my noble friend Lord Houghton said, I quite agree that badgers have an equal right to live with cattle. I personally would much rather see a badger than a cow. But our very strong feeling is that to eradicate populations of badgers in limited areas where the disease is endemic in the badgers is going to be for the good of the badgers as well as for the cattle. I said that deliberately before coming on to give the Committee some figures, because I do not want anybody to feel I am stressing economic factors and thinking only of the good of the cattle—though of course, as the noble Earl, Lord Ferrers, pointed out, that is extremely important—if for no other reason than that in some circumstances the disease is transmittable to humans through cattle.

Noble Lords may like to know that during the year ending 31st March 1975 compensation paid for breakdowns in the South-West region reached a total of nearly £210,000 compared with only £82,000 for the whole of the remainder of England and Wales. That compares with the figure I gave on Second Reading for the calendar year 1974, in other words a slightly earlier period, of £90,000 for the whole of England and Wales, to about £200,000 for the South-West. The figures indicate not only the size of the problem but also that it appears to be getting worse.

To turn from the general points to Lord Foot's Amendment, I would say, first, that my right honourable friend the Minister of Agriculture has consulted widely with interested organisations before introducing the Government's Amendment, which is now Clause 16 in this Bill, and will be prepared to do so again if any radical change in approach were contemplated in relation to badgers. Although I cannot accept the Amendment, and I do not want to reiterate the technical reasons for that, my right honourable friend would welcome the views of persons with a legitimate interest in this matter. Accordingly, he is prepared to set up an appropriate form of non-statutory consultative panel comprising among its members six independent persons who can speak with authority on such matters as, for example, badger biology, bovine tuberculosis, farming interests, wildlife conservation, veterinary science and animal welfare. My noble friend will be pleased to hear that. This could keep under review the general question of tuberculosis in badgers, and its relationship to tuberculosis in cattle and the use of the proposed licensing powers.

I might say to the noble Earl, Lord Ferrers, who said that he did not think that consultation on a statutory basis was necessary, that we would agree with him so far as that is concerned if there was a statutory obligation before issuing licences. We do not think that that would be practical. But this consultative panel, with a wide range of interests, which I think all noble Lords would agree covers all the main points which need to be covered, would have a slightly different function in that they would be able to keep under review the progress of the use of the powers which the Government are taking under this clause.

We have always agreed that there is not conclusive evidence that badgers give bovine tuberculosis to cattle. There cannot be conclusive evidence by the nature of the problem. What we have said is that only by trying out the extermination of badgers by gassing will we ever know whether this is the source of the problem or not. I hasten to add immediately that we are absolutely convinced that this is the cause of the problem, but by the nature of the evidence we cannot claim that it is conclusive. I think that noble Lords will agree that because of the way in which disease is transmitted, we are very rarely able to come up with conclusive proof about these things. I would remind the Committee that the original decision to slaughter cattle affected with brucellosis was taken on the basis of circumstantial evidence that they were transmitting the disease to human beings, and the result of that policy has caused a dramatic decrease in the incidence of the disease in human beings. I think that that covers the points that the noble Earl raised in objection to having any consultation.

Earl FERRERS

If I may interrupt for one moment, I do not have objection to consultation if the consultation is concerned with what is the best method in general of dealing with the situation. I think that that is perfectly right. But will the noble Lord confirm that the Minister will not be obliged to consult with this body before taking action?

Lord MELCHETT

Yes, I would confirm that. The non-statutory consultative panel which my right honourable friend has now given an undertaking to set up would be for the purpose of keeping under review the general question of tuberculosis in badgers and its relation to tuberculosis in cattle, and the use of the proposed licensing powers, so that it would be a question of keeping the operation of this clause under review.

To turn to the point made by my noble friend Lord Houghton, the evidence for the transmission of tuberculosis from badgers to cattle is now so strong that we feel it would be irresponsible not to take action in individual cases outside the control areas where herd breakdowns occur and badgers in the locality are established to have the disease. I think I referred on Second Reading to this as being akin to fire brigade action. The initial control area which he asked me about will be a pre-selected part of Gloucestershire Avon up to about 40 square miles in total. This area is bounded in the west by the River Severn, in the East by the M5, in the South by the M4, and in the North by the Little Avon River. My understanding is that in this area control operations will, as it were, start in the centre and work outwards, and it is likely in the end that probably only about half the area will actually be covered by gassing operations.

Baroness EMMET of AMBERLEY

I am afraid this is a very ignorant question. I have kept cows, but I have not kept badgers. How does the tubercular germ get transferred from the badger to the cow? Is the badger a grass-eating animal? I did not think that it was. How does the transference come about?

Lord MELCHETT

I am glad to hear that the noble Baroness does not keep badgers, because I think we all agree that they are happier not being kept, but living wild and free. I went into this in great detail on Second Reading, when I explained, and I reiterated it today, that we cannot say exactly how the disease is transmitted, but the circumstantial evidence is very strong. If the noble Baroness would care to read what I said at Second Reading about the habits of the badger and the incidence of herd breakdowns in relation to badger sets, and in particular the behaviour of badgers which have bovine tuberculosis, I think she will see that the evidence we have of the fact that the disease is transmitted is very strong indeed. I hope that that answers her question without having to take up more time than I already have done on this point.

Lord BALERNO

It is most probably the droppings of the badgers.

Lord MELCHETT

I was hoping to avoid that, because I did not want to get into a technical discussion about where badgers normally leave their droppings, but diseased badgers tend to behave rather differently from healthy ones in this respect, and the noble Lord may be right.

I was intending to say, as an assurance to my noble friend, that blanket extermination of the kind of the spectre he raised, at least by inference, would in our view be premature at this stage and will not be undertaken and unless and until experience has shown this to be fully justified. I think that the undertaking I have given to have a consultative panel looking at this and advising the Minister makes this a very worthwhile assurance. As I say, experience has shown this to be fully justified, for example from the results of work in this control area. I do not expect that any blanket gassing operations will take place outside the control area, the details of which I have given, until we have at least a year's experience of operations in the control area on which to draw.

When I speak of "blanket extermination" and "blanket gassing ", I want immedately to emphasise to all noble Lords, to all wild life lovers, and in particular to all farmers all over the country, that I am talking only about blanket extermination within limited areas in South-West England where bovine tuberculosis is proved to be endemic in wild badger population and not anywhere else where badgers are to be found in the United Kingdom.

If one message were to go out from your Lordships' House as a result of our discussion of this Amendment today—and I hope that this one message is taken by the noble Earl, Lord Arran, who has such an interest in badgers—it will be to emphasise and emphasise again all over the country that this is a limited problem, limited to a particular area and that the blanket gassing operation will be carried out within a maximum of 40 square miles bounded in the way I have described. It is vital that farmers in the rest of the country do not get a mistaken impression, which I am afraid they have because of the very real worries of noble Lords and Members of another place about this clause. I am afraid that it is undoubtedly true that farmers and others throughout the country have the impression that this problem is a lot more widespread than it actually is and that the action we intend to take is more widespread than it actually is. I hope that these assurances will settle any doubts in noble Lord's minds and that we can go from here, all of us who care for badgers, to make absolutely sure that no misunderstanding about what we are proposing remains in anybody else's mind. I hope, therefore, that my assurances will satisfy the noble Lord, Lord Foot, and that he will see fit to withdraw the Amendment.

Lord FOOT

I am sure that the whole Committee is grateful to the noble Lord, Lord Melchett, for his very full explanation of what the Government have in mind, what they have been doing and the way in which they propose to proceed. I will read the Official Report of the noble Lord's speech with great care tomorrow. I found it most reassuring as I listened to him, but I ask whether, if some of us had not campaigned on behalf of the badger, we should have got these assurances which he has been able to give today. Indeed, as I understand the noble Lord, he is saying that it is proposed to set up this non-statutory consultative board or body; that it will remain, as it were, in permanent session keeping under review the destruction of the badger in this control area; that the destruction of the badger by gassing will be limited to this area; that it will be an experiment which will be carried out over a period of time working from the middle outwards, and that at the end of a year the situation will be reviewed before any further licence is granted either for another area or for any other part of the country.

Lord MELCHETT

The noble Lord is right with one exception, which I hope he will not feel is too important. It is that we have all along said, and it still remains the position, that where isolated herd breakdowns occur—again, this is only likely in this region of the South-West, and I emphasise that—and bovine tuberculosis is found in the local badger population, in those isolated incidents licences will also be issued, because we feel the evidence is so overwhelming that it would be quite irresponsible of the Minister not to act to control the spread of the disease in those isolated breakdown situations. I might add that it would be irresponsible for us, from the badgers' point of view as well, because if we were to allow the disease to remain endemic in isolated pockets outside the control area, the likelihood from our past experience is that the disease would spread among the badgers and make the situation worse.

Lord FOOT

I am grateful to the noble Lord for that further explanation, and I find it reassuring, too. The argument on this matter—I say this particularly to the noble Earl, Lord Ferrers—is really on a narrow basis. We do not in any way object to the Minister taking powers to control, kill and issue licences for the taking and killing of badgers where the disease exists, because that may have to be done for the sake of the badgers themselves, quite apart from the cattle. Nor do we object to the method of gassing, which is to be made lawful under Clause 16. Indeed, although I am not an authority on this, we accept that gassing by cyanide may be the most humane way of dealing with badger setts in infected areas. We are not arguing about that.

What alarms and worries us is what the noble Lord, Lord Houghton of Sowerby, was saying. The assumption is that where one finds bovine tuberculosis in cattle, and in the same area one finds that some of the badgers are infected, that statistical fact is claimed to demonstrate that it is the badger which communicates the disease to the cattle. Perhaps it does not much matter for practical purposes whether the badger transfers it to the cattle or the cattle to the badger; one must exterminate the cattle and the badger. That is why I say that perhaps it does not matter very much for practical purposes, but this is the risk as we see it: if in fact that is only a statistical connection and it is not the badger which is the carrier to the cattle, the Government will be off on a wild goose chase and they will not be applying their mind to discovering the real cause. There may be some reason for bovine tuberculosis occurring in the limited areas and infecting the cattle and the badger which we have not yet ascertained. Our worry is that one might have the wholesale slaughter of badgers all based on a false premise and all avoiding the discovery of what may be the real cause of the infection of the cattle.

As the noble Lord, Lord Melchett, will know, there is a good deal of statistic evidence to suggest that the badger is not the carrier. Again, it is statistical; it is not proof—it is cause and effect. It is not positively proven that the badger does not convey the disease, but there is quite a lot of statistical evidence to suggest that there has been bovine tuberculosis in cattle in areas where the badgers are entirely unaffected. If that is the case, then those cattle cannot have been infected by the badger but must have been infected by something else. However, I will not go into that question now.

Reverting to what the Minister has been good enough to tell us about the consultative procedure he proposes to follow, I take it that he does not want any words written into this Bill requiring the Minister to consult before he issues a licence. May I take it that although he will resist that it will be the normal course for the Minister, before he issues a licence other than in this control area, to go through the procedure I was talking about; that is, to take specimen badgers and conduct an autopsy? Will the Minister agree that if that procedure is followed before gassing is used there will be ample time to confer with this non-statutory consultative body?

Lord MELCHETT

I do not think I have quite grasped the point which the noble Lord is making. Certainly I can give him the assurance that gassing will be undertaken only in those areas where it has been proved that the wild badger population has the disease. Obviously, to achieve that it will be necessary to catch specimen badgers and have the carcases analysed. I am not sure whether the noble Lord was asking about further blanket operations over a considerable area, or to what I have referred to as "fire brigade" operations.

Lord FOOT

As I understand it, the Minister is saying that there will be this gassing operation in the 40 square mile area, and at the end of a year the matter will be reviewed and there is no intention of carrying out a blanket operation in any other area—only a fire brigade operation where there is an outbreak. In the case of this fire brigade operation, can the Minister give an assurance that there will be plenty of time for the results of the autopsy of the badgers that are taken to be considered by experts in the consultative body, before a decision is made to use gassing in that area? Different experts may give quite a different opinion.

If it was found that very few of the badgers taken were showing signs of affection by the disease, it might be the view of some experts that it would not be justified to destroy all the badgers there. If the incidence were much higher, it would be right to exterminate. I am merely asking for an assurance that this consultative body—of which I am very glad to hear—will be consulted at all times and, in particular, that there will be ample time in the fire brigade operations for this process of consultation to take place. I said at the beginning that I would not carry this Amendment to a Division, because I agree that the nominating of these bodies is obviously unsatisfactory. I feel that it is no use my asking the Minister to consider between now and the next stage writing something into Clause 8 about the requirement for consultation. Perhaps the most helpful thing for me to do would be to withdraw this Amendment.

Lord MELCHETT

It might be help ful to the noble Lord if I dealt with it now. I think that the idea behind the consultative committee is that they will review the progress of the main gassing operation in the experimental area. In the meantime, as I said it is our intention to carry out fire brigade operations when there are particular herd breakdowns. I have the feeling that it would probably not be right to give any undertaking that the body will be consulted before those are carried out. No doubt the genera! principles on which action is taken in those cases will be a matter which the consultative committee is able to consider. I would certainly take that point on board. That would probably cover some statistical argument about what percentage of badgers caught would need to have the disease before it was felt that there was disease in the wild badger population. That general point might well be something on which the Minister would welcome the views of the committee. The point about the fire brigade operations is that they are limited and they are done very quickly. It is possible very quickly to snare and analyse badger carcases to discover whether or not the disease is present, and it would not be right to suggest that the committee could be consulted in all those cases. It will be able to review the general operation of the use of gassing.

There is one other point which I should like to make, and I am afraid I must disagree with the noble Lord. I cannot accept that there is any substantial evidence that badgers do not transmit the disease to cattle. I am afraid that there is overwhelming evidence that the badgers are responsible for transmitting the disease. It is not just a statistical link. For example, there is the link between the areas where cattle on farms get the disease and the areas where badgers are living. It would be misleading the Committee, and I think anybody outside the House, if I were to give the impression that there was not overwhelming evidence that badgers are responsible for giving the disease to cattle.

Earl FERRERS

The point which the noble Lord, Lord Foot, made was quite important. As I understood it, this consultative body would he a forum to consider the way in which this part of the Bill is working. I think that where there was to be an autopsy of badgers in special areas, and a certain amount of time was to elapse, the noble Lord, Lord Foot, wanted that time to be used for consulting that body. I hope that that will not be agreed to. There may well be conditions in which the Minister wants to take the opportunity of asking, but it would be wholly wrong if the Minister were to be committed to consulting such a body on every occasion before taking those measures. From what the noble Lord, Lord Melchett, said I gather that he would not be so obliged.

Lord MELCHETT

The noble Earl has understood me correctly. We have found from experience that there is not necessarily any great time-lapse where autopsies are concerned and that this is a procedure which can be done very quickly. Apart from any other considerations, it would probably be impractical for the Minister to undertake consultations when the majority of these isolated outbreaks occur. I believe that I have covered the general point which the noble Lord was raising.

Lord FOOT

Again, I should like to thank the noble Lord. I think he has been very fair to the House. He has made perfectly clear the extent of the Government's assurances and has not tried to cover it up at all. He has made it quite clear that he is not giving an absolute undertaking and that there will not always be consultations. I feel that we now understand the situation and I do not propose to continue the argument. I was going to say that it was evident that the Minister would not be prepared to consider writing in a consultative requirement and that it would not therefore be worth asking him to do so, but I hope that when we read tomorrow what the Minister has had to say, we shall find some cause for satisfaction and some real re-assurance that the badger will not be made the innocent victim of ill-thought-out attack. Therefore, I thank the Minister not only for telling us this but also for the great interest which he has shown in this matter throughout the debate. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 16 agreed to.

2.10 p.m.

Clause 17 [Short title and extent]:

The Earl of CRANBROOK moved Amendment No. 21: Page 7, line 34, after (" the ") insert (" Conservation of ").

The noble Earl said: When this Bill was given its Second Reading, I said that, since it was based on the Conservation of Wild Creatures Bill, to which your Lordships gave a Second Reading six months ago, it would be more appropriate if the title contained the word "conservation" rather than "protection ". In fact, I believe that that is the wish of the entire conservation movement, which wishes to try to separate the two sides of caring for animals—conservation in the wild and protection.

The Bill is so drafted that it is a conservation Bill and it should please people like the noble Lords, Lord Stow Hill and Lord Hale, and the noble Baroness, Lady Gaitskell, who were nervous of having too many offences which people would find it difficult to know about. There is provision in a sensible conservation Bill that the list of protected creatures and wild plants is kept as small as possible and that they are only put in the Schedule if it is considered essential. That keeps the number of potential criminals to the minimum and I feel sure that your Lordships will welcome it. I beg to move.

Lord MELCHETT

I should like to say that the Government welcome the Amendment.

On Question. Amendment agreed to.

The Earl of CRANBROOK

I beg to move Amendment No. 22.

Amendment moved— Page 7. line 35, leave out (" Protection").—[The Earl of Cranbrook.]

On Question, Amendment agreed to.

Schedule 1 [Wild creatures protected by this Act]:

Lord MELCHETT moved Amendment No. 23:

Page 8, line 7, leave out— (. Dormouse … Muscardinus avellanarius ").

The noble Lord said: The Amendment would delete the dormouse from the Schedule of wild creatures. I confess that it gives me no pleasure to move it. Though it appears that the dormouse is a declining species in this country, the Nature Conservancy Council has advised that it does not show the same degree of rarity as the other creatures which are to be protected by the Bill. There is some evidence to indicate that in past years the dormouse has been regarded as a pet and this may still be true to a limited extent. Nevertheless, it does not at the present time fall within the criteria set out in Clause 12, namely, that it has become so rare that its status as a British wild creature has become endangered by any action designated as an offence under the Act. I beg to move.

The Earl of CRANBROOK

I think there is some truth in what the noble Lord says. We know remarkably little about the dormouse. It is widely distributed but we do not know how thickly populated are the areas in which it is distributed. However, it is sufficiently widely distributed not to be in any danger unless the present tendency to take it for commercial purposes becomes stronger. The Mammal Society is making a survey of the creature at the moment. If that is found to show that it is very rare, it can easily be put back on the list. I am perfectly prepared to accept the Amendment.

On Question, Amendment agreed to.

Schedule 1, as amended, agreed to.

2.14 p.m.

Schedule 2 [Species of protected plants.]:

Lord MELCHETT moved Amendment No. 24:

Page 8, line 22, leave out— (" Fingered sedge … Carex digitata ")

The noble Lord said: This Amendment would delete the fingered sedge from the Schedule of protected plants. Although this species is rare, it, again, does not fall quite into the same category as the other plants listed in the Schedule. The Fingered Sedge is known to exist on 25 sites, many of which contain a large number of individual plants. I am advised that there are at least four sedges which are more rare. The Nature Conservancy Council has therefore advised that this plant is not currently in need of the special protection which would be afforded by the Bill. I beg to move.

The Earl of CRANBROOK

I find it more difficult to agree to this Amendment. The Fingered Sedge was introduced into the Bill as it went through another place by the promoter of the Bill, Mr. Hardy, MP, who feels very strongly about it. The Fingered Sedge occurs rather sporadically in his constituency and he is very anxious that it should be protected there. I must confess that I am not a botanist and such advice as I have been able to take leaves me equally balanced between the noble Lord opposite and Mr. Hardy. While I am not prepared to accept this Amendment, I certainly would not wish to divide the Committee on it.

Lord MELCHETT

In view of what the noble Earl says, it might be better to end on a happy note. Therefore I should like to withdraw the Amendment and reconsider it on the understanding that I shall be moving it at the next stage unless some further evidence is brought to light. On that basis I wish to withdraw the Amendment.

Amendment, by leave, withdrawn.

Baroness BERKELEY moved Amendment No. 25:

Page 8, line 35, at end insert— (" Spurred Coral Root Orchid—Epipogium aphyllum")

The noble Baroness said: I beg to move this Amendment, which seeks to add (" Spurred Coral Root Orchid—Epipogium aphyllum") to the list of protected plants. This orchid is sometimes referred to as the "Ghost Orchid ". Some of these species appear to have more than one name, which makes it somewhat confusing. This orchid has a curious root formation, said to be of scientific interest. It is very slow in growth as it is known to flower only once every three years. I understand that it used to grow in Herefordshire but is now found only in Southern England. Therefore it has become very rare and is obviously in need of protection. I hope that Her Majesty's Government will agree to accept this Amendment.

Lord MELCHETT

I agree with what the noble Baroness said about this plant. We accept that it ought to be included in the Schedule. The only reservation I have is that it is our view that the "Ghost Orchid" would probably be the correct common name by which to refer to it in the Schedule. But, again, in the interests of harmony it would he best to accept the Amendment on the understanding that I will probably move an Amend- ment at the next stage to change the common name by which the plant is known.

Baroness BERKELEY

I thank the noble Lord.

On Question, Amendment agreed to.

Schedule 2, as amended, agreed to.

Title, as amended, agreed to.

House resumed: Bill reported with the Amendments.