§ 4.28 p.m.
§ Committee stage resumed.
§
Lord AIREDALE had given Notice of his intention to move Amendment No. 3:
Page 1, line 5, leave out ("principal Act") and insert ("Conservation of Wild Creatures and Wild Plants Act 1975, hereinafter referred to as "the principal Act").
The noble Lord saidThe next Amendment which stands in my name, No. 3, has been blown off course by the acceptance of Amendments Nos. 1 and 2, so I had better not attempt to move Amendment No. 3 this afternoon, hut, rather, return to the subject on Report.
§
The Earl of CRANBROOK moved Amendment No. 4:
Page 1, line 7, after ("If") insert (", save as may be permitted by or under this Act,")
§ The noble Earl said: This is a drafting Amendment. I beg to move.
§ On Question, Amendment agreed to.
§
Viscount MASSEREENE and FERRARD moved Amendment No. 5:
Page 1, line 7, after ("destroys") insert ("impedes").
§
The noble Viscount said: The purpose of this Amendment is very simple. If it were accepted, the provision would read:
If any person wilfully destroys, impedes or disturbs the sleeping refuge or the nest …
§ The word "destroys" rather envisages somebody killing the unweaned occupants of the nest or refuge, while the word "disturbs" could, I presume, mean somebody having a noisy engine near the nest or perhaps disturbing it by walking far too close to the nest so that that would eventually destroy the occupants because the parents would desert them. There are many other ways of killing a pig than sticking it. That is why I have inserted the word "impedes" after "destroys".
266§ There are many ways of impeding. For instance, one could impede the parent going to feed the young by erecting a fence to impede the habitual run by which the parent goes out to feed herself and return to the nest. If she cannot get back to the nest the unweaned young will be destroyed. One might block up an entry into a barn or into a small recess where there were unweaned young, and that also would destroy them. The course of a stream could be altered, causing a flood and that would destroy the young. Those methods of destruction are really indirect through impeding. Therefore, I hope the Amendment will be accepted. I cannot see that it can do any harm if it is accepted. It would only serve to protect further the nest or refuge of unweaned young. beg to move.
§ Baroness STEDMANIf I may intervene here, I should like to say that from the Government's point of view we are not quite sure how one would legally define what impeding a nest actually means. It is a matter for the noble Earl to decide whether he will accept the Amendment, but, with respect, I would suggest that Amendment No. 8, to be moved by the noble Lord, Lord Houghton of Sowerby, may meet the needs and may be more easily understood than the word "impeding" the nest
§ The Earl of CRANBROOKWithout wishing to be in any way rude to him, I would suggest to my noble friend that he has a look at the Oxford English Dictionary. One can only impede something which is in motion. The nest, or the resting place, is a stationary object, and one cannot put one's foot in front of it. I cannot recommend your Lordships to accept the Amendment, because I do not think it means anything at all.
§ Viscount MASSEREENE and FERRARDOne can impede the parents going to feed their young, and therefore destroy the young. Perhaps the Amendment ought to have been better worded, and perhaps I ought to have included the word "parent" and access to, and one or two more words. I beg leave to withdraw the Amendment. I may come back to this matter at a later stage.
Amendment, by leave, withdrawn.
§ 4.34 p.m.
§
The Earl of CRANBROOK moved Amendment No. 6:
Page 1, line 8, after (" refuge ") insert (" while occupied ").
§ The noble Earl said: This Amendment is intended to meet one endangered species which is already included in Schedule 1, and there may be others like it in the future. The Greater Horseshoe Bat hibernates during the winter in caves. It spends the summer in breeding colonies in the roofs of houses. I do not think any of your Lordships would wish to prevent cavers from going into the caves that bats occupy in the winter if they do it during the summer, or to prevent a householder from going into his attics. This Amendment, and Amendments Nos. 7, 9 and 10 are intended to protect these two classes of persons. I beg to move.
§ On Question. Amendment agreed to.
§
Lord AIREDALE moved Amendment No. 7:
Page 1, line 8, after ("refuge") insert ("or any endangered or vulnerable wild creature being a mammal").
§ The noble Lord said: The clause having been amended, it would seem that it would read more happily if it were modestly redrafted in the manner provided by this Amendment and Amendment No. 9. These are purely drafting Amendments. They alter the order of the wording of the clause to make it more easily understandable without in any way altering the sense. I beg to move.
§ On Question, Amendment agreed to.
§
Lord HOUGHTON of SOWERBY moved Amendment No. 8:
Page 1, line 8, leave out (" unweaned ") and insert (" dependant ").
The noble Lord saidThis Amendment deals with a small point which I raised on the Second Reading of the Bill, as reported at column 483 of the Official Report of 26th January, when I pointed out that some young, though weaned, are nevertheless dependent upon their parents for food, and therefore the word "dependant" is perhaps more appropriate than the word "unweaned". I beg to move.
§ The Earl of CRANBROOKThis is an improvement, and I hope that your 268 Lordships will agree to it.
§ On Question, Amendment agreed to.
§
Lord AIREDALE moved Amendment No. 9:
Page 1, line 9, leave out (" protected or vulnerable wild creature being a mammal ") and insert (" such creature").
§ The noble Lord said: This is purely a drafting matter. I referred to this in moving Amendment No. 7. I beg to move.
§ The Earl of CRANBROOKThis also is an improvement, and I recommend your Lordships to accept it.
On Question, Amendment agreed to.
§ The Earl of CRANBROOK moved Amendment No. 10:
§
Page 1, line 10, at end insert:
(" Provided that an authorised person shall not be guilty of an offence against this section by reason only of disturbing an endangered or vulnerable wild creature within a dwelling-house.")
§ The noble Earl said: This is the Amendment to which I have just referred, to protect the householder once again in going into his own attic. I beg to move.
§ On Question, Amendment agreed to.
§ Clause 1 as amended, agreed to.
§
The Earl of CRANBROOK moved Amendment No. 11:
After Clause 1, insert the following new clause:
§ Restriction on sale of vulnerable wild creatures
§ " .In section 2(1) of the principal Act after the word "Schedule 1" there shall be inserted the words "or Schedule 3".
§ The noble Earl said: This is a drafting Amendment. I beg to move.
§ On Question, Amendment agreed to.
§ Clause 2 [Restriction on killing etc. vulnerable wild creatures]:
§ 4.40 p.m.
§ The Earl of CRANBROOK moved Amendment No. 12:
§
Page 1, line 22, at end insert—
("Provided that it shall not be an offence against this section to kill or injure an invertebrate wild creature or to take its eggs.").
The noble Earl saidDuring the Second Reading debate there were criticisms as to the difficulty which the man-in- 269 the-street might have in identifying insects which were vulnerable; and the noble Earl, Lord Listowel, spoke of people who had an obsession about spiders and could not see one without treading on it. That sort of action does little harm from the conservation point of view. The effect of the casual or occasional killing of one of a vulnerable species is negligible: it is only when such action is concentrated on a colony that the effect can be disastrous. I have therefore made it a provision that casual or occasional killing of an endangered species is not an offence. Similarly, I am informed that from the conservation point of view no harm is done by entomologists who take the eggs of butterflies and moths and rear them; it is a common and popular practice. This Amendment, therefore, would also prevent their committing an offence. I beg to move.
§ On Question, Amendment agreed to.
§
The Earl of CRANBROOK moved Amendment No. 13:
Page 2, line 1, leave out ("Subject to subsection (4) below.").
The noble Earl saidThis is another drafting Amendment. I beg to move.
On Question, Amendment agreed to.
§
Lord HOUGHTON of SOWERBY moved Amendment No. 14:
Page 2, line 11, leave out ("injuring").
§ The noble Lord said: My remarks in moving Amendment No. 14, will apply also to Amendment No. 15 and to the subsequent Amendments, Nos. 19 and 20. This Amendment proposes to delete the word "injuring" from the protection which is given by this clause of the Bill. The simple point is that we do not wish to protect anyone who deliberately injures a vulnerable species, even for scientific purposes. An animal covered by the protection afforded to the vulnerable species may be injured in an attempt at killing which is fully covered by the Bill; but I think we could not condone, even for scientific purposes, the shooting of an animal to see how badly disabled it might be, and whether, if it were disabled, it could sustain itself. Under my Amendment such an act would be unlawful, though there would be a complete defence if a person were attempting to kill an animal, 270 in conditions under which he were permitted to do so, but, instead of killing it outright, injured it. These are fine points but, nevertheless, it is important that injuring per se should not be protected under the Bill, though injuring in an attempt to kill in circumstances covered by the Bill would not, of course, be an offence. I hope I have made myself clear on this small Amendment. I beg to move.
§ The Earl of CRANBROOKAgain, I think this is an improvement, for which I am grateful to the noble Lord. I hope your Lordships will accept it.
On Question, Amendment agreed to.
§
Lord HOUGHTON of SOWERBY moved Amendment No. 15:
Page 2, line 12, leave out ("injuring").
§ On Question, Amendment agreed to.
§
The Earl of CRANBROOK moved Amendment No. 16:
Page 2, line 13, leave out (" in any one ten kilometre square of the national grid ") and insert (" on any site ").
The noble Earl saidThis is more of a probing Amendment than anything else, because this subsection defines the basic difference between the needs of the endangered species, which are in Schedule 1, and of the vulnerable ones, which are to be placed in Schedule 3. As to the endangered species in Schedule I, the only change we are likely to anticipate is that they should become more common, when, at the quinquennial review by the NCC, they will be removed from the Schedule. They can wait that time; there is no need to worry about them; they are perfectly safe; and the delay of one, two, three or four years makes little or no difference.
The vulnerable species are in a very different position. They can move into that endangered category, but are not yet near it. Therefore, it is essential that we should be able to monitor them so that we can know if and when they approach the danger point, and that inevitably involves taking them to see what is happening. Ideally, they are identified in the hand, in the net, in the catch-alive trap, or with hook and line; but in the case of some species that is not possible, and they have to be removed entirely from the population and closely 271 examined, perhaps under a microscope. If that is going to be done, it is essential that the number taken must be limited by time—I have said over a year—and by the area over which it can be done.
The ten kilometre square has become the normal area so far as natural history is concerned. Twenty atlases showing the distribution of species of our fauna and flora over the ten kilometre squares into which they are divided have been published; 40 more are in course of preparation, and I am told that some of them are near publication. About 5,000 species have already been covered by that method, and I am told that the number will approach 10,000 species when the work has been completed. So the use of the ten kilometre square as an area over which all species of our fauna and flora is distributed is now generally accepted among naturalists.
It was suggested on Second Reading, I think by the noble Lord, Lord Mowbray, who sits in front of me, and certainly by the noble Baroness opposite, that the ten kilometre square was an awkward area. I have therefore put down this Amendment purely as a probing Amendment, to see whether either the noble Baroness or the noble Lord, or any other noble Lord, can suggest a better area than the ten kilometre square. I beg to move.
§ Baroness STEDMANThe Government are aware that the ten kilometre square principle attracted quite considerable criticism when it was referred to during the Second Reading debate, and we consider this Amendment, which the noble Earl refers to as a probing Amendment, an improvement on what we had in the Bill originally. I think it still leaves room for argument, perhaps, as to what is a site, and we may still have some enforcement problems to look at; but, so far as the Government are concerned, we prefer this Amendment to what is in the original Bill, and, perhaps, between now and Report stage, if the noble Earl would leave it in, we can give it more consideration and have further talks about it.
§ 4.50 p.m.
§ Lord MOWBRAY and STOURTONI should like to say that, so far as I am 272 concerned, I welcome it whenever one can make something appear simpler and easier of understanding—and these Bills are complicated enough without having to come back to a ten kilometre grid map.
§ Lord AIREDALEPerhaps the interval between now and the Report stage could be used to try to define a site for the purpose of the clause.
§ Baroness STEDMANThat is one of our problems. That is why we should like time to consider between now and Report stage; but I hope that the noble Earl will, with the leave of the Committee, leave it in.
§ The Earl of CRANBROOKI must confess to have been profoundly disappointed at what, if I was not inherently chivalrous, I would call the intelligence of the Front Benches on both sides." However, I refer only to my own Front Bench and I would perhaps suggest that the noble Baroness may be mistaken. The trouble about sites is that, when you have a wild creature distributed over quite a small area—the sort of area covered by two or three ten-kilometre squares—there may be 100 or more sites where colonies of that wild creature are established. Under the Bill as it stands, in those two ten-kilometre squares, an individual could take only four specimens. If this Amendment is accepted, should your Lordships refuse me permission to withdraw it, there will be 100 sites on which 200 specimens could be taken—quite a considerable drain on the population in that relatively small area. I do not believe that the site is the right thing. I would ask your Lordships to allow me to withdraw this Amendment and I should be grateful if the noble Baroness could arrange for me to have discussions with somebody to see if we can find a better one. In the old days, naturalists used counties and half counties and sometimes used parishes. I find it difficult not to go for the area which is known to every naturalist in England.
§ Baroness STEDMANWe think that the Amendment suggested by the noble Earl today is a very significant advance on what we had in the original Bill. We accept that it is not perfect and, if 273 the noble Earl will accept my assurance, I should be happy to meet him with my officials to see whether we can find something better before Report stage.
§ The Earl of CRANBROOKI begleave to withdraw the Amendment.
Amendment, by leave, withdrawn.
§
The EARL of CRANBROOK moved Amendment No. 17:
Page 2, line 13, leave out ("one").
§
The Earl of CRANBROOK moved Amendment No. 18
Page 2, line 17, leave out subsection (3).
§ The noble Earl said This is an important Amendment. It is one of those I have already mentioned which removes Schedule 4 altogether and leave us only the two Schedules, "Endangered" and "Vulnerable", Nos. 1 and 3. There is a third IUCN category—" Rare "—which is defined as creatures which are not at present endangered or vulnerable but are at risk. I was advised by the officers of the NCC that it is not necessary at the moment to cater for the "rare" category and, obviously, it will have to be included in the comprehensive Bill that we ultimately hope to see overtake the 1975 Act.
§
I must remind the Committee that the noble Lord, Lord Melchett, said on the Second Reading in 1974 of the Conservation of Wild Creatures Bill, which became part of the Act in 1975,
The protection measures of this Bill are inflexible"—
§
that is, the Act we are now operating under—
There is no scope for partial protection to be afforded to species which are uncommon but not rare".
§ This is the species we now call "vulnerable". Nevertheless, the NCC advised Parliament, and Parliament agreed, that we should cater only for the endangered species and should have only one Schedule giving complete protection and not have a second Schedule giving partial protection to endangered species.
274§ But we have known since that date—and some of us before that date; that is, before the Act became law—that at some time, sooner or later, provision would have to be made for those creatures which Lord Melchett defined as needing partial protection because they were not endangered but only uncommon—what we now call "vulnerable". I was not surprised, therefore, when the Otter Committee set up by the NCC reported last year that there was need for amendment to the Act to provide protection for wild creatures before they become rare to the point of being endangered—almost the very words that Lord Melchett used—and this Bill is the result.
§ I must give the same warning that Lord Melchett gave us in 1974 that, sooner or later, we must find it necessary to have a comprehensive Act dealing with the rare wild creatures as well as the endangered and vulnerable ones—and, even if that is not necessary today the time must come. If that comprehensive Bill is not brought forward fairly soon, another amending Bill will have to come up. I beg to move.
§ The DEPUTY CHAIRMAN of COMMITTEES (Lord Segal) I must point out that, if Amendment No. 18 is agreed to, I cannot call Amendments Nos. 19 and 20.
§ On Question, Amendment agreed to.
§ [Amenthents Nos. 19 and 20 not moved.]
§
The Earl of CRANBROOK moved Amendment No. 21:
Page 2, line 25, leave out subsection (4).
The noble Earl saidI was advised by the officers of the NCC that this subsection was both unnecessary and undesirable. Therefore, I beg to move that it be deleted.
§ On Question, Amendment agreed to.
§ Clause 2, as amended, agreed to.
§ Clause 3 [Schedules of vulnerable wild creatures]:
§
The Earl of CRANBROOK moved Amendment No. 22:
Page 2, line 32, leave out (" Schedules ") and insert (" Schedule ").
The noble Earl saidThe Schedules that I presented at Second Reading were much criticised on all sides of the House. The Amendments to which the Committee have agreed, that we should only have two Schedules of endangered and vulnerable species, means that most of the species on the Schedules which were included in the Bill as it was introduced fall into the third IUCN category of "rare" and would not in any case come onto a Schedule for vulnerable species. I have however introduced only a small number of those which I have no doubt the NCC, on investigation, would find it necessary to include in the Schedule.
All of these are vulnerable to the extent that they are only found on one site or one or two sites. Although I am quite ready to be cross-examined by your Lordships on any individual species, I am not prepared to say where those sites are. I hope that it is totally unnecessary to satisfy the Committee that they are rightly there. To reveal them could be dangerous.
On Question. Amendment agreed to.
§
The Earl of CRANBROOK moved Amendment No. 23:
Page 2, line 34, leave out from beginning to end of line 28 on page 5 and insert—
| ("Scientific name | Common name |
| SPIDERS | |
| Dolomedes plantarius | |
| BUTTERFLIES | |
| Carterocephalus palaemon | Chequered Skipper |
| Melitaea athalia | Heath Fritillary Moms |
| MOTHS | |
| Idaea lineata | Black-veined |
| Pareulype berherata | Barberry Carpet |
| Thetidia smaragclaria | Essex Emerald |
| BEETLES | |
| Chrysolina cerealis | |
| DRAGONFLIES | |
| Aeshna isoscles | Norfolk Aeshna |
| GRASSHOPPERS AND CRICKETS | |
| Decticus verrucivorus | Wart-biter |
| Gryllus campestris | Field Cricket |
| Gryllotalpa gryllotalpa | Mole Cricket |
| MOLLUSCS | |
| Myxas glutinosa | Glutinous snail |
| Catinella arenaria | Sandbowl snail |
| Monacha certusiana | Carthusian snail |
| FISH | |
| Lota Iota | Burbot |
| Cobitis taenia | Spined loach |
| MAMMAL | |
| Muscardinus avellanarius | Dormouse.") |
§ The noble Earl said: This is a drafting Amendment. I beg to move.
276§ Baroness STEDMANI should like to make some reservation at this point about the inclusion of the two fish species. Fish have not previously been protected under this legislation, and the prohibition on the killing, injuring and taking of certain species of fish has some possible implications for angling as a fish can be identified only after it has been caught, and by which time damage may have been done. It cannot he assumed that all anglers would be able to identify the fish if they should catch one of them. If this Amendment is passed today, we would have to reserve our position on it and have further consultations with MAFF and perhaps come back at the next stage.
§ The Earl of CRANBROOKI should be very happy to take that advice from the noble Baroness after those consultations. Indeed, if I could be present at the consultations, I should be grateful. I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 3, as amended, agreed to.
Clause 4 [Consequential Amendments of principal Act]:
§
The Earl of CRANBROOK moved Amendment No. 24:
Page 5, line 31, leave out (" 3 or 4 ") and insert (" or 3 ").
The noble Earl saidThis is another drafting Amendment. I beg to move.
On Question, Amendment agreed to.
§ The Earl of CRANBROOK moved Amendment No. 25:
Page 5, line 34, leave out (" protected ") and insert (" endangered ").
The noble Earl saidThis is another drafting Amendment. I beg to move.
On Question, Amendment agreed to.
On Question, Whether Clause 4, as amended, shall stand part of the Bill?
Lord MOWBRAY and STOURTON I should like to ask my noble friend one question here because in this clause we have mention of Section 6 of the main Act. It has been drawn to my attention tht we might be able to improve the Act. The noble Earl may not be able to answer 277 my question now, but perhaps he could let me know in due course. In the main Act Section 6 says that a person is not guilty of an offence for taking any protected wild creature which has been disabled other than by his own act. It has been drawn to my attention that we might be able to improve this Act by saying that this is not an offence if disablement is caused accidentally. lf, when driving a motor car, one runs over an animal which is on the endangered Schedule, at the moment one has to collect somebody else to take the animal home to tend it.
The suggestion is that in a case like that there ought to be some form of amendment to the main Act to allow the person who injured the animal to take it back and tend it. I merely ask whether my noble friend thinks there is any merit in trying to improve that point of the main Act at this stage of the Bill. I hasten to add that one would have to be careful not to widen the ability of people to take advantage of this unscrupulously. That would be a detail for people far more expert with words than myself.
§ The Earl of CRANBROOKThis was a point which was argued out at great length by a number of noble and learned Lords when the 1975 Act went through, as the noble Lord, Lord Mowbray and Stourton, will remember because he was present. If he feels strongly about this perhaps he might consider putting an Amendment down for the Report stage. I hope that he will ensure that either there is a whole bevy of noble and learned Lords to advise us or that there is none, so that we do not get into difficulties.
Clause 4, as amended, agreed to.
Clause 5 [Schedules to be altered only in accordance with s. 12 of principal Act]:
§ 5.7 p.m.
§ The EARL of CRANBROOK moved Amendment No. 26:
Page 5, line 39, at end insert ("accompanied by the evidence which led them to give that advice").
The noble Earl saidThis Amendment is complementary to Clause 9 of the Bill and is indeed in line with the ethos of the 1975 Act which to some extent differed from other conservation Acts, most of which give power to a Minister to vary 278 Schedules and the like by order on the advice of some body like the Advisory Committee on Birds, the NCC or similar bodies who know what they are about. But none of them, save the 1975 Act, provide for the publication of the advice which led the Minister to make that order in the annual report of the appropriate body. That seemed to noble Lords in 1975—it certainly seemed to me then and seems to me now—that particularly in a matter like this, where there are a large number of your Lordships, anyhow, who are interested and knowledgeable in conservation matters, and a very large number of the general public who are similarly interested and similarly knowledgeable, that the more of what has come to be called "open government" that we can introduce, the better.
It seems to me that the people with whom under the Act the Minister has to consult should be given the fullest possible information in order to make that consultation something really useful and not farcial as it can become if no information is available and they are just given a bald fact and asked to comment on it. We have only had one order under the 1975 Act—that is on the otter—and two national bodies have told me that they felt that the information then given to the consultees was not sufficient. They have supported me in suggesting this Amendment. The organisations are: the Friends of the Earth and the Council for Nature. I am assured by the officers of the Nature Conservancy Council that this would not inflict any greater burden on them. They have to prepare this statement in any case. I hope your Lordships will agree that it should go to the consultees, and I beg to move.
§ Lord WYNNE-JONESI think the point raised by the noble Earl is an important one. Many of us will recollect that when the otter order was being discussed, in effect this point was being raised. I think the matter should always be made clear when some recommendation comes from a body set up under the Act. The explanation should quite explicitly state the reasons for the advice that is given, and I would strongly support the noble Earl on this Amendment.
On Question, Amendment agreed to.
Clause 5, as amended, agreed to.
§ 5.12 p.m.
§
Lord SKELMERSDALE moved I Amendment No. 27:
After Clause 5 insert the following new clause:
§ Removal of creatures from Schedule 1.
§ ". After section 7(1) of the principal Act there shall be inserted the words—
§ "Provided that if, in the exercise of his power under this section, he removes a wild creature from Scheule 1 to this Act, he shall forthwith add it to Schedule 3 to this Act."."
The noble Lord saidIn a sense, Amendment No. 27 is a tidying up Amendment, but perhaps I might point out to your Lordships at this point that we are here concerned with Section 7 of the principal Act, solely with the duties of the Secretary of State, no matter how he is advised. We do not want to get confused by the later Clause 7 of the Bill to which we shall come in a moment, which deals with the duties of the Nature Conservancy Council in advising the Secretary of State. This Amendment says in effect that the Secretary of State, in exercising his powers and removing a wild creature from Schedule 1—which I would remind your Lordships is the "endangered" Schedule—must automatically add it to the "vulnerable" section to make absolutely clear that it does not disappear altogether from legislation. I beg to move.
§ The Earl of CRANBROOKObviously, as I put my name to the noble Lord's Amendment, I recommend your Lordships to accept it. I would add just one point. An animal in Schedule 1 is protected against killing, taking, selling and the like, and even if it recovers sufficiently to be taken in small numbers, very few wild creatures which have been as rare as that can stand being taken for commercial purposes, which is still forbidden under the third Schedule. I think the gradual decrease in the amount of protection given should not go too far at one time.
On Question, Amendment agreed to.
Clause 6.
§ The Earl of CRANBROOK moved Amendment No. 28:
§
Page 5, leave out lines 42 to 46 and insert—
("(ee) for the purpose of preventing serious damage to land crops, poultry or other forms of property, to kill or take within a specified area by any specified means any
280
specified number of specifed endangered or vulnerable wild creatures;or").
The noble Earl saidThe NCC, I think, was not happy about being given the duty of controlling the commercial exploitation of wild creatures—I think very largely because they could not see any wild creatures likely to want protection in the near future, and they did not feel they were an appropriate body for giving licences. This Amendment therefore leaves out lines 42 to 46 but it inserts another paragraph to cover Amendment No. 2, in order to allow the Ministry of Agriculture to give a licence to somebody who is suffering serious damage from a protected or vulnerable wild creature, to destroy it. I beg to move.
§ The DEPUTY CHAIRMAN of COMMITTEES (Lord Segal)I have to point out to the Committee if this Amendment No. 28 is agreed to I shall not be able to call Amendments Nos. 29 to 32.
On Question, Amendment agreed to.
[Amendments Nos. 29 to 32 not moved.]
§ The Earl of CRANBROOK moved Amendment No. 33:
§
Page 5, line 47, leave out subsection (2) and insert—
("(2) In section 8(2) of the principal Act, for the words "paragraph (e)", there shall be substituted the words "paragraphs (e) and (ee)".").
§ The noble Earl said: Amendment No. 33 is consequential upon Amendment No. 28. I beg to move.
§ On Question, Amendment agreed to.
§ Clause 6, as amended, agreed to.
§ 5.18 p.m.
§ Lord SKELMERSDALE moved Amendment No. 34:
§ After Clause 6 insert the following new clause:
§ Forfeiture
§ ".For section 11(2) of the principal Act there shall be substituted the following subsections:—
§ "(2) The court before which any person is charged with an offence, if he is convicted, or acquitted by reason only of a defence provided under this Act, shall order the forfeiture of any wild creatureor plant to 281 which the charge relates, and such forfeiture shall be dealt with in accordance with the directions of the Nature Conservancy Council.
§ (3) The court before which any person is convicted of an offence under this Act may order the forfeiture and subsequent destruction of anything which is capable of being used for committing an offence under this Act, and which is found in the possession of that person," ".
§ The noble Lord said: I beg to move Amendment No. 34. Your Lordships may remember that on the Second Reading of the Bill I made a rather flippant point about natterjack toads jumping round police stations. This Amendment is really meant to make sure that that sort of thing does not happen, and indeed it goes much further than that. The new clause substitutes for the existing section 11(2) in the principal Act two new subsections. Subsection (2) takes existing forfeiture provisions on conviction, in relation to the animal or plant concerned and expands them. I am advised that this is because the person may have committed an act of violence on an animal but may have an excuse under the Act—for example, prudent mercy killing—and so he will be acquitted. Nevertheless, in most cases the animal should be taken away and dealt with. Forfeiture provisions are therefore extended by this Amendment to acquittal by reasons of special circumstances under the Act.
§ Secondly, in circumstances where such activity has been proved, whether or not there has been a subsequent conviction, forfeiture is made compulsory. In suitable circumstances the animal or plant—though 1 accept that here we are talking chiefly about animals—although forfeited, can be returned to the owner. I understand that happens, for example, under the Customs and Excise Act 1952, but I contend that the owner is not necessarily the best person to deal with it. Obviously it is easy enough for an owner to replant a bulb or a plant, or whatever it happens to be, in many cases though not in all; but if I were suddenly landed with a badger or an otter, I do not know what I would do with it. This is the reason for that.
§ Thirdly, I think that the court has to deal—this is really the probing part of the Amendment—with the forfeited animal, in accordance with the directions of the 282 NCC. At present, there arc no directions as to what to do with it, although we were told again by the noble Baroness on Second Reading what is the current practice. But that does not mean to say that the same practice will continue. In the case of birds, they are usually handed over to the RSPB. The NCC will obviously know far better than the court what is in the best interests of conservation, and can direct accordingly. The possibility of return of the animal or plant to the owner is therefore admitted, as 1 said earlier. Incidentally, Section 10(3) of the Badgers Act 1973 also includes compulsory forfeiture of badgers, or indeed of their skins.
§
The new subsection (3) extends the provisions yet again. It repeats, to a certain extent, the existing forfeiture provisions in relation to the implements used for these offences. But it leaves forfeiture discretionary, because the survival of the species is not directly involved—at least, this would appear to be the reason—as indeed may be the case with a live animal. Under Section 3 of the Act as it stands, the police do not have power to seize things capable of being used for ringing protected and certain non-protected wild creatures, and also for uprooting plants. The power of forfeiture is therefore extended from things capable of being used for killing and taking protected wild creatures, to things
capable of being used for committing an offence under this Act.
§ This, again, has provenance in Section 10(3) of the Badgers Act 1973. 1 beg to move.
§ Viscount MASSEREENE and FERRARDMay I make just one point? This Amendment seems rather wide. It says:
.destruction of anything which is capable of being used for committing an offence under this Act".Does that include, for example, a man's car? He might not be able to get to the site without a car, or he might run down a protected species. As I said, this Amendment seems rather wide.
§ Baroness STEDMANWe appreciate the concern of the noble Lord, which he voiced on Second Reading, and acknowledge that he has done something to try to get what he wants inserted into the Act.
283 As we interpret what he has proposed, it would mean widening the forfeiture provisions of Section 11(2) of the 1975 Act in four different ways: first, by extending the forfeiture to persons acquitted by reason only of the defence provided under the Act; secondly, by providing that forfeiture shall be dealt with under the direction of the NCC; thirdly, by allowing the forfeited implements to be destroyed and, finally, by extending the forfeiture to the implements used against protected plants.
We understand the noble Lord's concern and what he is trying to get at. But I think that the idea in the first part of the Amendment, of imposing penalties on an acquitted person, is a very strange one, and we might run into considerable difficulties when dealing with normal legal principles. So far as the Government are concerned, they must ask the Committee to look at the Amendment very carefully and not to accept this part of it. But I think the other three points included in the noble Lord's Amendment, while perhaps not being exactly what he wants, or what we would want, are something that we could perhaps consider and look at and come back to again—if the noble Lord would be prepared to withdraw the Amendment now. But we would certainly find the first part of the Amendment very repugnant.
§ The Earl of CRANBROOKI must confess that I feel the same as the noble Baroness about my noble friend's Amendment. I thought that the answer which the noble Baroness was able to give him after that interlude on Second Reading should have answered all his difficulties, and he is perhaps now trying to have his cake and eat it, and rather gobbling it instead of eating it. In particular, I think that the second subsection of his Amendment would raise very considerable difficulty, because if somebody is catching a vulnerable butterfly and has in his pocket a trowel, which has nothing to do with the offence he is committing, it will then have to be confiscated. If my noble friend could withdraw the Amendment and discuss it with the Department, we might get something better on Report stage.
§ Lord AIREDALEIt might not be a small thing like a trowel. Someone might 284 be carrying a valuable shotgun, and into his path might flutter a butterfly which he might illegally kill. Under the new subsection as drawn he would be liable to forfeiture,
of anything which is capable of being used for committing an offence under this Act".The shotgun would be capable of committing that offence, but not of killing the butterfly. This illustrates that the new subsection (3) is at present rather too widely drawn.
§ Lord SKELMERSDALEI am very grateful to your Lordships for picking such enormous holes in my arguments. I therefore beg leave to withdraw the Amendment, with, of course, the proviso that I can take up the noble Baroness's offer and have discussions with her in order to get a little closer to what I should like to see.
Amendment, by leave, withdrawn.
§ 5.27 p.m.
§
Lord HOUGHTON of SOWERBY moved Amendment No. 35:
After Clause 6 insert the following new clause:
§ Licences.
§ ".—(l) In section 8(2) of the principal Act (authorities for the grant of licences), in paragraph (a), for "the Nature Conservancy Council" there shall be substituted "the Secretary of State".
§
(2) After section 8(2) of the principal Act there shall be inserted the following new subsection:—
(2A) The appropriate authority under subsection (1) above may charge for the issue of a licence such sum (if any) as is for the time being prescribed by order by the Secretary of State, and any such sums received shall be paid into the Consolidated Fund.".
The noble Lord saidThe first part of the new clause, which is in two parts, proposes to take away from the Nature Conservancy Council its existing powers to grant licences for otherwise prohibited dealings. The principal Act gives power to grant these licences to the Nature Conservancy Council. My proposal is to take that power away from them and to give it to whom it properly belongs; namely, the Secretary of State for the Environment. Licences under Acts of Parliament are generally granted by public bodies having a ministerial head, who is to be accountable to Parliament, and probably, in the good order of things, 285 the granting of licences under the principal Act should go to the Department of the Environment and not remain with the Nature Conservancy Council. That is the first proposition.
The second proposition is to give to the appropriate authority who grants the licences, who under my first proposal would be the Secretary of State for the Environment, power to charge for the granting of licences to cover administrative costs. There may be objections to charges. It has been suggested that perhaps your Lordships' House is not the authority to impose any charge at all on the citizen, so I probably risk being sent to the Tower, or wherever noble Lords who are transgressing the Ark of the Covenant of the prerogatives of another place are sent. However, I will chance it. This proposal is that charges may be made for the granting of licences, to cover administrative costs. It is legitimised by a provision in the Endangered Species (Import and Export) Act 1976, which was a Government Bill two Sessions ago. So that the principle of charges in this area is not a strange one. There it is. If there is any pressure against me, 1 shall ask leave to withdraw the Amendment for further consideration. But 1 offer these comments in support of the Amendments, for consideration by the Committee. I beg to move.
§ Baroness STEDMANAs my noble friend has said, the first part of his Amendment makes the Secretary of State the licensing authority instead of the NCC, while the second part of his Amendment gives power to charge for the issue of the licences. The Government have very strong feelings about this. In the first case, we have no expertise to take over the licensing function, which is based very largely on scientific criteria. We think that the NCC is the obvious body to perform these functions, and there is no reason why it should not continue to do so. We should strongly resist additional duties being put on to the Secretary of State.
Turning to the second part of my noble friend's Amendment which deals with charging for the issue of licences, we believe that the amount that would accrue from it would not be worth the cost of the collection. We are not sure that the principle of paying for licences for such 286 purposes as educational research would not arouse very strong feelings and create difficulties for us in the conservation field. In the light of those observations, I hope that my noble friend will consider withdrawing his Amendment. If he wishes to have further consultations with the officials of my Department and with the noble Lord opposite, am sure that there will be no difficulties about it.
§ The Earl of CRANBROOKI agree entirely with the noble Baroness, and I hope that the noble Lord will he prepared to withdraw his Amendment. I should like to stress in particular the undesirability of charging for the issue of licences to people who are doing valuable research and other work which is of real benefit to the community. Even if it brought in £100 or £200, I believe that it would be wrong to charge.
§ Lord HOUGHTON of SOWERBYI said a moment or two ago that if I was put under even the slightest pressure, I should ask for leave to withdraw the Amendment. I am all against arousing strong feelings, except on Canadian seal culling and other kindred subjects, but I am all in favour of avoiding additional expense in Government Departments in order to recover negligible amounts of taxation. I think that the arguments against me are sufficiently strong, for the moment at any rate, for me to ask for leave to withdraw the Amendment in order to allow me to give further thought to the matter. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 7 [Duty of Nature Conservancy Council]:
§ The Earl of CRANBROOK moved Amendment No. 36:
Page 6, line 10, leave out from (" that ") to (" by ") in line 12 and insert (" it is in danger of extinction as a British wild creature or wild plant").
The noble Earl saidThis is another of those Amendments which brings our definitions in the Bill into line with the IUCN. In fact, the Bill speaks about the status of a creature in Schedule 1 being endangered when what is meant is that the creature itself is endangered. This is 287 merely a tidying-up Amendment. I beg to move.
On Question, Amendment agreed to.
[Amendments 37, 38 and 39 not moved.]
§
The Earl of CRANBROOK moved Amendment No. 40:
Page 6, line 24, leave out from beginning to (" and ") in line 36 and insert (" or has become so seriously depleted or so fragmented that its ultimate security is not assured and it is likely to move into the endangered category and it should be included in Schedule 3 to this Act either generally or with respect to a particular area or in relation to a particular category and either at all times or at particular times of the year or has so far recovered its former density that it is no longer vulnerable and should he removed therefrom ")
The noble Earl saidAgain this Amendment uses the very words and phrases contained in the definitions given by the IUCN for its category "vulnerable". However, I believe that noble Lords might care to think a little more deeply about this question instead of just accepting it as being part and parcel of the changeover in the Bill. The noble Baroness tells me that the NCC believes that for legislative purposes difficulties are involved in differentiating between endangered and vulnerable species. 1 am not quite clear whether this means the definitions which help the NCC to decide into which category a wild creature should be put. However, I should have thought your Lordships would believe that the differences between the categorisation brought about by this Amendment and that brought about by the Amendment dealing with endangered species to which your Lordships have just agreed are sufficiently distinct to make it fairly easy to distinguish between them.
Perhaps that is theory, but we have got the ounce of practice which many naturalists have gained over the past few years in producing what are known as red data hooks. These have categorised the animals in a number of countries into the three categories of the IUCN to which I have already referred; namely, the endangered, the vulnerable and the rare. Part of a red data book dividing all of our plants into those three categories has just been published, and I understand that further sections dividing all vertebrates into those categories is about to be published. Another section on all of the insects which 288 have been really well investigated will follow very shortly.
We have here a series of field naturalists dividing—without any very great difficulty, I am informed—the wild creatures and wild plants, the whole of our flora and fauna, into those three categories of "endangered", "vulnerable" and "rare", according to the definitions of the IUCN. I have consulted the head of the Biological Records Centre which has been deeply involved with the whole of this work, just as it has been involved with the distribution lists to which I have already referred. It seemed to me that difficulties must be involved in taking what must essentially be a subjective judgment when deciding upon borderline cases: whether the animal is, as the definition states, getting towards the endangered category, or has actually reached it, or has not yet got there and should be called vulnerable. The head of the Biological Records Centre assured me that the committees concerned had not found this to be a very difficult judgment to make—because a number of minds working together will reach what can almost be called an objective decision—and that they had managed to work out a method of getting all of the meristic characteristics into the questions under discussion. I believe that this gives us a very clear-cut difference between "endangered" and "vulnerable", and there should not be any difficulties about it. I beg to move.
§ The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger)The next three Amendments are Amendments to Amendment No. 40. Therefore we should proceed to those Amendments before returning to Amendment No. 40.
[Amendments Nos. 41, 42 and 43 not moved.]
The DEPUTY CHAIRMAN of COMMITTEESWe return, then, to Amendment No. 40. The question is that this Amendment be agreed to?
§ Lord WYNNE-JONES: I wish to speak to Amendment No. 40. I followed what the noble Earl has said, and I have tried to read and understand what is contained in the original draft and what is contained here. I suppose it is because my training 289 is not quite compatible with the kind of qualitative statements which are made here that I find great difficulty in seeing the advantage of the new wording. It seems to me that it makes uncertainty still more uncertain.
§
When reference is made to the population being known to be decreasing, either generally or in a particular area being taken in such numbers, and so on, it seems that one is dealing there with statements which have some quantitative significance, which can be weighed and understood; but when one replaces that situation with the words:
or has become so seriously depleted or so fragmented that its ultimate security is not assured and it is likely to move into the endangered category",
quite frankly, I have great difficulty in understanding how one makes such an assessment. For example, I do not know whether one could decide at what stage it was thought that the hair of an individual was in danger of becoming white, or anything of that sort. These are purely subjective statements which are not easily weighed up and presented as evidence for reaching a decision, and I should have thought that the wording now being proposed would make it more difficult for anybody like the Nature Conservancy Council to come to a clear decision as to what ought to be done.
§ I realise that in all these matters, one is dealing with opinions, and one hopes that the people serving on these bodies have been chosen because of their sound judgment; but I think a lot depends upon the instructions which they are given, and although I may be quite wrong in my interpretation, it seems to me that the instruction which the noble Earl now proposes as compared with his original wording is much more diffuse, less clear and therefore less likely to lead to positive results.
§ The EARL of CRANBROOK I am rather flattered that the noble Lord prefers the original wording, which was my own, but I think what he has missed here is the point that IUCN categorisation will be of enormous help to the NCC. The NCC will not do the categorisation itself; that is to say, it is not a research body. It has to rely on researches by other people, as the noble Lord knows; and as I 290 tried to make clear just now, the people preparing the red data books assure me that they have no difficulty in categorising the various species with which they are dealing, into the three categories which I have mentioned so many times that it would be tedious to repeat them.
§ When the Nature Conservancy Council has to make its quinquennial review of the Schedules it has to get the information from field naturalists, The field naturalists preparing the red data book will already have put the wild creatures and wild plants into the categories, the wording of which I have used in these two Amendments, and the NCC will have that already prepared for them. Their judgment will have to be whether or not it is worthwhile adding some of those creatures which the red data book says are vulnerable.
§ Perhaps I may give the noble Lord an example. At Second Reading, the noble Lord, Lord Wise, spoke about the red squirrel, which in his part of the world and in my part of the world is clearly and obviously to all of us decreasing in numbers, to such an extent that I should he prepared to say that in Norfolk and Suffolk it is passing into the endangered category, or is likely to do so very quickly. Admittedly, that is a subjective judgment, but it is one which I am prepared to say that I have made objectively. In point of fact it would not he any use adding the red squirrel to Schedule 3 because it is not being endangered by any action which is prevented under the Bill. So the final judgment must be that of the NCC itself. The first categorisation must be done by the field naturalists in the field, and I am assured—and I am quite certain that if the noble Lord would make inquiries of the same source he would feel assured—that they do not have any difficulty in using the definition which I have put into this Amendment.
§ Baroness STEDMANPerhaps it might help if the noble Earl referred to the fact that we have had correspondence on many of these Amendments. I wrote to him to say that there were some difficulties in differentiating for legislative purposes between the endangered and vulnerable species, and I offered to take further advice on it. We are now advised that the Amendment in its present form is one 291 which we should be happy to accept. That may perhaps assist the Committee.
On Question, Amendment agreed to.
[Amendment No. 44 not moved.]
§ 5.48 p.m.
§ Lord SKELMERSDALE moved Amendment No. 45:
§
Page 6, line 36, at end insert ("and
(bb) if any wild creature included in Schedule 3 to this Act has become so rare that it is in danger of extinction as a British wild creature or wild plant by any action designated as an offence under this Act that it should be added to Schedule 1 to this Act.")
The noble Lord saidWhen I was speaking to Amendment No. 27 I pointed out that on that occasion we were speaking of the duties of the Secretary of State. We are now talking quite definitely about the duties of the Nature Conservancy Council in advising him, and the same sort of provisions occur. What is necessary is to give power to the Nature Conservancy Council to move creatures from Schedule 3 to Schedule I to the Act. I beg to move.
The DEPUTY CHAIRMAN of COMMITTEESThe words to be inserted are not quite as printed but have been revised, so I had better read them:
if any wild creature included in Schedule 3 to this Act has become so rare that it is in danger of extinction as a British wild creature by any action designated as an offence under this Act it should be added to Schedule 1 to this Act".There is an Amendment to this Amendment, to which we will now proceed. It is Amendment No. 46.
§
The Earl of CRANBROOK had given Notice of his intention to move Amendment No. 46 as an Amendment to Amendment No. 45:
Line 4, leave out ("that") and insert ("and").
§ The noble Earl said: I approve the general tenor of this Amendment and I prefer the word "and" only because I think it leaves more discretion to the Nature Conservancy Council. The noble Lord has met me in discussions on the difference between "should" and "and". We are going to discuss the matter between now and the Report stage of the Bill. Perhaps he would withdraw Amendment No. 45, or be prepared to accept 292 a similar Amendment if we come to an agreement in the meantime. I think probably it would be easier for him to withdraw his Amendment now and to move it again at Report stage. I entirely agree with it: it is just the nuance on which we are not agreed. He thinks that I have not got a good command of English and I am not quite certain that he has, but we shall resolve that between now and the Report stage.
§ Lord SKELMERSDALEI do not want to take issue with my noble friend on my semantic powers, or indeed his, but I think that perhaps at Report stage it would be better to deal with the "ands" "buts" and "shoulds", wherever they occur in this Bill separately. I should, therefore, like to move this Amendment, with the revision that the noble Baroness in the Chair has mentioned, and deal with the nuts and bolts perhaps on Report.
§ The Earl of CRANBROOK: Not moved.
The DEPUTY CHAIRMAN of COMMITTEESThen we go back to Amendment No. 45. The Question is that Amendment No. 45 be agreed to.
On Question, Amendment agreed to.
The DEPUTY CHAIRMAN of COMMITTEESAmendment No. 47 should not be in the list; it is, I think, identical with Amendment No. 44.
§
The Earl of CRANBROOK moved Amendment No. 47:
Page 6, line 37, leave out paragraph (c).
The noble Earl saidThis Amendment is another Amendment which removes the original Schedule 4. I beg to move.
§ The DEPUTY CHAIRMAN of COMMITTEES: I think Amendment No. 47 has already, in effect, been carried under Amendment No. 44.
§ The Earl of CRANBROOKI thought I had said that I did not move Amendment No. 44.
The DEPUTY CHAIRMAN of COMMITTEESI beg the noble Earl's pardon. The Question is that Amendment No. 47 be agreed to.
On Question, Amendment agreed to.
[Amendment No. 48 not moved.]
§
Lord SKELMERSDALE moved Amendment No. 49:
Page 7, line 1, leave out ("(c)") and insert ("(bb)").
The noble Lord saidThis is purely a drafting Amendment. Having eventually disposed of paragraph (c), Amendment No. 45 will become (bb). I beg to move.
On Question, Amendment agreed to.
§ The Earl of CRANBROOK moved Amendment No. 50:
Page 7, line 5, leave out subsection (3).
The noble Earl saidHaving been in consultation with the officers of the NCC, they told me that they would prefer that this should be left to NCC discretion, which seems to me to be reasonable. I beg to move.
§ Lord WYNNE-JONESI am glad that the noble Earl is asking that this subsection should be dropped, because it seems to me that the subsection completely contradicts what he said earlier; that is, that the Nature Conservancy Council has no research resources. So I would certainly hope that we should drop this subsection.
§ The Earl of CRANBROOKI think the noble Lord misinterprets the original clause, which says that the NCC should make provision for it. That, so far as I recollect, is the phrase which comes in the Nature Conservancy Council Act. It allows them to make provision by contracting with other people to carry it out for them; it does not mean that they can do it themselves. The noble Lord may remember we had a very considerable argument on this when the 1973 Act was going through. I was able to inflict a considerable defeat on this side of the House when sitting on that side of the House. But that does not alter the position that the Conservancy Council contracts out most of its research.
On Question, Amendment agreed to.
294 Clause 8 [Removal of creatures from Schedules 1, 3 and 4]:
On Question, Whether Clause 8 shall stand part of the Bill?
§ Lord SKELMERSDALEI beg to move the unnumbered Amendment to leave out Clause 8. We have already in previous Amendments covered the point of the new Section 12A as in the Bill; that is giving the Secretary of State power to move creatures from Schedule 1 to Schedule 3 to the Act. So to keep this clause in would be a duplication. So far as 12B goes, there is a period of four years involved here. I have had some private discussions with my noble friend, and we have come to the agreement—and I believe this is also the view of the NCC that four years is far too short a period; anyway, different species will need different lengths of time, and, therefore, the length of time should be left open. I therefore beg to move to leave out Clause 8.
Clause 8 disagreed to.
Clause 9 [Amendment of s. 14 of Principal Act]:
§ 5.57 p.m.
§ The Earl of CRANBROOK moved Amendment No. 51:
§
Page 7, line 35, at end insert—
("(2A) It shall be the duty of the Secretary of State to lay before each House of Parliament a copy of the statement mentioned in subsection (2) above.").
The noble Earl saidThis is an extension of what I have already called the ethos of the 1975 Act, to make everything as open as possible. Your Lordships have already agreed that the information to which I refer here should be sent to the consultees whom under the Act the Minister has to consult before making an order. What I am suggesting here is that Parliament—which, after all, when we are dealing with making an order which is subject to the Negative Resolution procedure, is the ultimate consultee—should have exactly the same information laid before it as we have already agreed should be given to the other consultees.
Again, this throws no additional burden on the Nature Conservancy Council. They have to prepare this statement in any case, and it would be of great advantage both to the Minister and to the House 295 if we had the opportunity of learning at the earliest possible stage the reasons which lead him to make an order. It would be for the House to decide what it does when it gets that information. I must confess that if it were left to me I should probably favour a Select Committee on Conservation to whom it would be referred and before whom the Nature Conservancy Council could give evidence. That is probably taking a sledgehammer to crack a nut, and perhaps a more reasonable solution would be to have an informal meeting between Peers who are interested in conservation and officers of the NCC, who could explain to them the evidence which they have given to the Minister.
It has been suggested to me that that evidence, which would then be public, might be too full. I am not suggesting that your Lordships or anybody else should be deceived, but when your Lordships accepted the new Schedule 3, which the noble Baroness opposite subsequently took away, I said I would be prepared to be cross-examined on it but that I would not be prepared to tell your Lordships the exact sites where really rare animals were found. I think that possibly it is being a little pernickety, because that is known to every specialist in that particular group. None the less, it is undesirable to have the exact locality of these species. I think that the evidence would be complete if the NCC said, as I was prepared to say about the Schedule at present, that the animal in question is only found on one site and therefore we must take particular care of it. I do not think that it would be right to ask for or to accept any more evidence than that, and that is perfectly harmless. Subject to that last statement being accepted, I beg to move.
§ Baroness STEDMANI should like to intervene. We have very strong objections to this Amendment proposed by the noble Earl, Lord Cranbrook. As I understand it, he is proposing an Amendment to the Schedules of the Act to the effect that the NCC must produce a statement of their reasons: such a statement is at present included in their annual report. This Amendment would require the statement to be laid before each House. We shall run into very deep water if we accept the Amendment of the noble Earl, because 296 there are very many other cases in which Government action is based on the advice of a body like the NCC. To require the laying in each case would be a serious additional burden on both Houses of Parliament, as well as on the Government.
We should be very happy to make copies of the statement available to any interested Members of Parliament or Peers, and to anyone else who wants to see it, as we did with the Otter Order. However, we think that to write this into the Act would be to create considerable problems in very many other areas of government.
§ Lord SOMERSThe noble Baroness, Lady Stedman, has said that we are running into a very dangerous position, where the Government will have to take into consideration the opinion of a body like the NCC. I can only say that I wish to goodness that the Government would take expert opinion more often. I believe that one of the faults of legislation is that it is so often undertaken from a point of view of political convenience rather than expert knowledge. I have every support for the Amendment of the noble Earl, Lord Cranbrook.
§ Baroness STEDMANI think that the noble Lord, Lord Somers, has misunderstood or misinterpreted what I said. I was not casting any aspersions whatsoever on the advice we receive from the NCC. We are very happy to take it and to use it. We are grateful to the NCC for the help that it gives us in carrying out our duties. I was saying that the procedure suggested by the noble Earl, that the statement should be laid before both Houses of Parliament, has repercussions in very many areas of government and for the Government would probably considerably overweight the programme of both Houses of Parliament.
§ Lord MOWBRAY and STOURTONI should like to intervene. I think that, on reflection, my noble friend Lord Cranbrook might feel inclined to take up the offer of the noble Baroness, Lady Stedman, that any interested party would be sent the statement. I do not think that the Committee can expect the Government to do better than that.
§ The Earl of CRANBROOKIt may shorten the debate if I say that I have not 297 been very impressed by the arguments, but I have been reasonably satisfied by the points that the noble Baroness, Lady Stedman, has made. I suspect that there will be an increasing demand for this sort of information. The noble Baroness will have noticed that the First Special Report of the Joint Committee on Statutory Instruments has said that it is not given sufficient information. Indeed, a great many people in another place have been saying exactly the same thing.
Although the noble Baroness may fear that the little wedge that I want to insert is the narrow end of a much bigger one, I should be quite satisfied if her offer to send the information for which I am asking to any interested noble Lord were sufficiently widely broadcast—that is to say, that it came on the Pink Paper which we all receive, or in some other way, so that it is brought to our notice, and we can ask for it. Then we can do exactly the same as 1 have suggested; namely, those of us who are interested could meet together and ask for an officer of the NCC to attend for cross-examination. I should be perfectly satisfied with that if the noble Baroness can assure me that we shall all be told that the information is available and we have only to ask for it.
§ Baroness STEDMANI should be very happy to give such an assurance. I am not sure what the procedure is for getting things onto the pink paper which comes round, but I shall certainly make inquiries and ensure that it has as wide a distribution as possible.
§ Lord AIREDALEThe noble Baroness fears that this might lead to extensions into other areas. I think that the Minister in all the other cases would have a perfectly simple answer. He would say: "We only lay the Papers before Parliament when there is a statutory requirement for us to do so and in this particular case there is; but in the other cases there is not ". That surely would be the end of that.
§ Baroness STEDMANIt may not be the end of that. It may be that there would be Amendments to make such a statutory requirement in other cases and then there would be a considerable burden upon both Houses.
§ Lord AIREDALEIf Parliament thought it right, it would be very right and proper to enact it.
§ The Earl of CRANBROOKI was just about to ask leave to withdraw this Amendment. If the noble Lord, Lord Airedale, disapproves, I hope that he will not divide the Committee against me, because I doubt that we shall have enough Members present to keep the Committee going. In view of the assurances which I have received from the noble Baroness, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 9 agreed to.
§ 6.7 p.m.
§
The Earl of CRANBROOK moved Amendment No. 52:
After Clause 9, insert the following new clause:
§ Authorisation to he given in writing
§ ".In section 15(1) of the principal Act, in the definition of "authorised person", after the words "person authorised", there shall be inserted the words "in writing".").
The noble Earl saidI beg to move Amendment No. 52. I put this Amendment down with a certain amount of diffidence, because we discussed this matter when the 1975 Act was going through. The general consensus of opinion then was that this was an unnecessary restriction. On reflection, I do not think that it is an unnecessary restriction. It is a restriction which will reduce the pressure on endangered and vulnerable wild creatures. I do not think that it would do any harm to genuine research workers. It may bring out into the open those who have rather more nefarious intentions. I hope that your Lordships will accept it. I beg to move.
On Question, Amendment agreed to.
Clause 10 [Interpretation].
§
The Earl of CRANBROOK moved Amendment No. 53:
Page 7, line 39, leave out ("or 4").
§ On Question, Amendment agreed to.
§ [Amendment No. 54 not moved.]
§ The Earl of CRANBROOK moved Amendment No. 55:
§
Page 8, line 2, at end insert—
("(3) The principal Act, as it will have effect after the passing of this Act, is set out in the Schedule to this Act.").
§ The noble Earl said: I beg to move Amendment No. 55. It was pointed out to me that I was proposing so many Amendments to the Bill—I must confess that I am grateful for those of your Lordships who have borne with me while I have been proposing them—that it was difficult to see clearly what the Act would look like when the day's work was done and it would be helpful if they were set out in a keeling schedule as has been done. I must confess that that certainly has helped me a great deal to keep my mind reasonably clear and I hope that it has been useful to your Lordships. I should perhaps point out to your Lordships that the otter again has fallen by the way, because Schedule 1 on Page 16 of the Marshalled List was drawn up from the Act as it was printed and as it still exists. The otter has been subsequently added by order and it does not appear in the Act. It was a pure mistake.
§ Lord SKELMERSDALEI should like to thank my noble friend most particularly for having seen fit to include this keeling Schedule. I must say it was an absolutely murderous maze to go through, comparing the Act on the one hand and the Bill on the other. I, for one —and I am sure this applies to all noble Lords—am extremely grateful to him.
On Question, Amendment agreed to.
Clause 10, as amended, agreed to.
Clause 11 agreed to.
§
The Earl of CRAN BROOK moved Amendment No. 56:
Insert the following new Schedule—
§ ("SCHEDULE
§ CONSERVATION OF WILD CREATURES AND WILD PLANTS ACT 1975 AS AMENDED
§
[In the provisions set out in this Schedule the words inserted by the Bill are printed in heavy type and omissions made by the Bill are indicated by dots.]
Restriction on killing etc endangered wild creatures.
1. If, save as may be permitted by or under this Act, any person without. reasonable excuse—
he shall be guilty of an offence.
§
1A. If, save as may be permitted by or under this Act, any person wilfully destroys or disturbs the sleeping refuge while occupied of any endangered or vulnerable wild creature being a mammal or the nest containing the unweaned young of any such creature, he shall be guilty of an offence:
Provided that an authorised person shall not be guilty of an offence against this section by reason only of disturbing an endangered or vulnerable wild creature within a dwelling house.
Restriction on marking or ringing.
2.—(1) If, save as may be permitted by or under this Act, any person without reasonable excuse sells, offers for sale or has in his possession for sale any live or dead creature of a species specified in Schedule 1 or Schedule 3 to this Act, whether or not found living wild, he shall be guilty of an offence.
(2) In this section any reference to sale shall be construed as including a reference to barter and exchange and any reference to dead creatures shall be construed as including the skins or skeletons of such creatures.
Restriction on marking or ringing.
3. If, save as may be permitted by or under this Act, any person marks any endangered wild creature or any other wild creature or any other wild creature being a bat or attaches any ring, tag or other marking device to an endangered wild creature or any other wild creature being a bat, he shall be guilty of an offence.
Restriction on killing etc. vulnerable wild creatures.
3A.—(1) If, save as may be permitted by or under this Act, any person without reasonable excuse—
he shall be guilty of an offence;Provided that it shall not be an offence against this section to kill or injure an invertebrate wild creature or to take its eggs.
(2) An authorised person shall not be guilty of an offence against this section by reason only of—
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Restriction uprooting wild plants.
4. If, save as may be permitted by or on under this Act, any person, other than an authorised person, without reasonable excuse uproots any plant, he shall be guilty of an offence.
Protection of rare plants.
5. If, save as may be permitted by or of rare under this Act, any person without reasonable excuse picks, uproots or destroys any protected plant, he shall be guilty of an offence unless the picking, uprooting or destruction occurs as an incidental result, which could not reasonably have been avoided, of any operation which was carried out in accordance with good agricultural or forestry practice.
General exceptions.
6. A person shall not be guilty of an offence against this Act by reason only of—
Variation of Schedules.
7.—(1) Where, on advice given by the of Nature Conservancy Council under section 12 below, accompanied by the evidence which led them to give that advice, it appears to the Secretary of State to be necessary in the interests of the proper conservation of wild creatures or plants he may by order add any wild creature or plant to, or remove any wild creature or plant from, Schedule 1, 2, or 3 to this Act:
Provided that if, in the exercise of his power under this section, he removes a wild creature from Schedule 1 to this Act, he shall forthwith add it to Schedule 3 to this Act.
(2) An order made under subsection (1) of this section may apply—
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and the order may make different provision for different circumstances.Power to grant licences.
8.—(1) A licence may be granted to any person by the appropriate authority stipulated in the next subsection authorising that person, notwithstanding anything in this Act or in any order made under this Act, but subject to compliance with any specified conditions
In this subsection "specified" means specified in the licence and in paragraph (c) of this subsection any reference to dead creatures shall be construed as including the skins or skeletons of such creatures.
(2) The appropriate authority for the grant of a licence under the foregoing subsection shall be—
(3) Subject to the provisions of the next subsection, any licence granted under this section shall remain in force for such period as shall be specified therein.
(4) A licence granted under this section may be revoked at any time by the authority by which it was granted.
(5) A licence granted under this section shall not confer any right of entry upon any land.
(6) Without prejudice to any other penalty which he may have incurred under this or any other Act, any person who contravenes or fails to comply with any condition specified in a licence granted under this section shall be guilty of an offence.
Offender may be required to quit land.
9. If any person shall be found committing, or shall with reasonable cause be suspected of committing or of having committed, an offence under this Act on any land, it shall be lawful for an authorised person or any constable to require that person forthwith to quit such land and also give his name and address; and, if that person on being so required wilfully and without claim of right remains upon the land or refuses to give his full name and address, he shall be guilty of an offence.
Enforcement.
10. A constable may stop any person he suspects with reasonable cause of committing or of having committed an offence under this Act, and may without warrant search that person if, with reasonable cause, he suspects him of having evidence on his person of the commission of an offence under this Act, and may—
Penalties.
11.—(1) Any person guilty of an offence under this Act shall be liable on summary conviction to a fine not exceeding £100:
Provided that, where the offence was committed in respect of more than one endangered or vulnerable wild creature or in respect of more than one species of plant, the maximum fine which may be imposed under this subsection shall be determined as if the person convicted had been convicted of a separate offence in respect of each endangered or vulnerable wild creature or each species of plant, as the case may be.
(2) The court before whom any person is convicted of an offence under this Act may order the forfeiture or the restoration to the owner of any wild creature or plant in respect of which the offence was committed and the forfeiture of anything which is capable of being used for the taking or killing of endangered or vulnerable wild creatures and which is found in the possession of that person.
Duty of Nature Conservancy Council.
12.—(1) The Nature Conservancy Council in exercising its functions under section 1(1) (a) (ii) of the Nature Conservancy Council Act 1973 at any time may, and five years after the passing of this Act and every five years thereafter shall, review the Schedules to this Act and shall advise the Secretary of State—
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tion as a British wild creature by any action designated as an offence under this Act and it should be added to Schedule 1 to this Act.(2) The Nature Conservancy Council shall include a report on the advice given under paragraphs (a) to (c) above and on the evidence which leads them to give that advice in the annual report referred to in paragraph 17 of Schedule 3 to the Nature Conservancy Council Act 1973
Power of local authorities.
13.—(1) A local authority shall take such steps as they consider expedient for bringing the effect of this Act to the attention of the public and in particular schoolchildren.
(2) A local authority in England or Wales shall have power to institute proceedings for any offence under this Act committed within their area.
Orders.
14.—(1) Any order made under this Act shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament and may be varied or revoked by a subsequent order made in the same manner.
(2) The Secretary of State shall not make any order under this Act except after consultation with such bodies appearing to him to be representative of local authorities as he considers appropriate and such other bodies or persons as he thinks fit and shall send to those consulted a statement setting out the evidence which led the Nature Conservancy Council to advise him to make that order.
(2A) It shall be the duty of the Secretary of State to lay before each House of Parliament a copy of the statement mentioned in subsection (2) above.
(3) The Secretary of State shall cause notice of the making of any order under this Act to be published in the Gazette.
(4) In the case of an order relating to any area specified therein, each local authority in whose administrative area any part of the area as specified is situated shall take such steps, if any, as may appear to them expendient, or as the Secretary of State may direct, to bring the effect of the order to the notice of the public within their area.
Interpretation.
15.—(1) In this Act, unless the context otherwise requires—
authorised person" means the owner or occupier, or any servant of the owner or occupier, or any person authorised in writing by the owner or occupier, of the land on which the endangered or vulnerable wild creature is killed, injured or taken or on which the plant is growing;
Gazette" means, in England and Wales, the London Gazette and, in Scotland, the Edinburgh Gazette; "local authority" means—
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pick", in relation to a plant, means gather or pluck but not uproot, any part of the plant from the land on which it is growing;
plant" means, subject to subsection (2) of this section, any plant growing wild on any land;
endangered plant" means a plant specified in Schedule 2 to this Act;
endangered wild creature" means a wild creature specified in Schedule 1 to this Act found living wild, and includes the eggs, larvae or pupae of any such wild creature;
uproot", in relation to a plant, means pull up, dig up or remove the plant with its roots from the land on which it is growing;
vulnerable wild creature" means a wild creature specified in Schedule 3 to this Act found living wild and includes the eggs, larvae or pupae of any such wild creature.
(2) Any fungus or alga shall not be treated as a plant for the purposes of this Act unless it is a composite of fungus and alga in the form of lichen.
(3) Any reference in this Act to a plant includes reference to any part of a plant.
Amendment of s.9 of Badgers Act 1973. 1973 c.57
16. In section 9 of the Badgers Act 1973 (which makes, in relation to badgers, provision corresponding to that made by section 8 of this Act) there shall be inserted after subsection (3) the following subsection:—
"(4) It shall be a defence in proceedings for an offence under section 8(b) of the Protection of Animals Act 1911 or section 7(b) of the Protection of Animals (Scotland) Act 1912 (each of which restricts the placing on
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land of poison and poisonous substances) to show that—
Short title and extent.
17.—(1) This Act may be cited as the Conservation of Wild Creatures and Wild Plants Act 1975.
(2) This Act shall not extend to Northern Ireland.
§ In the Schedules
| SCHEDULE 1 | |
| ENDANGERED WILD CREATURES | |
| Common name | Scientific name |
| Greater Horse-shoe Bat | Rhinolophus ferrumequinum |
| Mouse-eared Bat | Myotis myotis |
| Sand Lizard | Lacerta agilis |
| Smooth Snake | Coronella austriaca |
| Natterjack Toad | Bufo calamita |
| Large Blue Butterfly | Maculinea arion |
§ The noble Earl said: I have just explained this. I beg to move.
The DEPUTY CHAIRMAN of COMMITTEESThere are a number of Amendments to this Amendment, to which we should now proceed. They are Amendments Nos. 57, 58, 59, 60, 61 and 62.
§ Lord SKELMERSDALEWith the leave of the Committee, I do not propose to move those Amendments to the Amendment.
§ [Amendments to the Amendment (Nos. 57 to 62) not moved.]
§ On Question, Amendment agreed to.
§ In the Title:
§
Lord SKELMERSDALE moved Amendment No. 63:
Line 2, at end insert ("and of plants growing wild")
The noble Lord saidThe words, "and of plants growing wild" have been taken from the parent Act. I think that they are needed because Clauses 5, 7 and 9 refer to plants, Clause 7 by direct reference actually mentioning the word "plants", and Clauses 5 and 9 by application. I beg to move.
§ Baroness STEDMANI have taken advice on this and I understand the purpose is to bring the protection of wild plants within the Long Title. But the rare plants are already protected under the 1975 Act. There is no case for giving separate protection to the vulnerable plants. In addition to protection of the rare plants, the 1975 Act contains a prohibition against the uprooting of any wild plant. There is no form of intermediate protection that might be given to 309 endangered plants. Therefore, for that reason the Bill contains no provision relating to plants and in our view the Long Title should not then refer to them.
§ Lord SKELMERSDALEWith respect to the noble Baroness, who, I am sure, knows far more about these matters than I, in Clause 7 we have amended, certainly to a large measure, Section 12 of the old Act. My Amendment was to probe whether or not, because of that, in fact, plants should be added to the Long Title of the Bill. There was no ulterior motive in my Amendment whatever.
§ The Earl of CRANBROOKIf the noble Baroness advises that it is not necessary, perhaps the noble Lord would withdraw his Amendment.
§ Lord SKELMERSDALEI beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
House resumed: Bill reported with the Amendments.